Legal Pluralism Flashcards
what is meant by a normative system?
any system of rules or standards that co-ordinate behaviour or order
how can resolutions between religious norms and state legal order be made?
arbitration - family disputes
statutes - motorbike helmet accommodations for Sikhs
case law - imaginative interpretation
how does J. Austin describe state law?
secular and distinguished from other phenomena
ex//religion and morality
where is there a strict separation between religion and the state?
what is this known as?
France
laïcité
who called for a greater tolerance of religions in the English legal system?
Archbishop of Canterbury
Dr Rowan Williams
what statute highlights the ability to refuse performance based on ‘conscientious objection’?
Abortion Act 1967 s4
doctors enabled to deny the performance
what did M. Siddiqui find in the 2018 review into the application of Sharia Law in the UK?
‘regarded by some as keeping many Muslims isolated, entrenched and with little social and psychological stake in wider British citizenship and civic life’
what controversy highlighted the conflict between the western legal freedoms and religious blasphemy?
Rushdie’s ‘Satanic Verses’
amounted to the issuing of a fatwa by the supreme leader of Iran
how did the HO reject the recommendation of Sharia Law having a self-governing body in the UK?
‘Sharia law has no jurisdiction in the UK and we would not facilitate or endorse regulation, which could present councils as alternative to UK laws’
why does Menski argue there may still be a divide in accepted sources of legal authority?
‘as Muslims, they still put up God’s aw above the state law in the first place’
what are the two main positions on legal pluralism?
state law and religious law are mutually exclusive - one supreme legal order
state law and religious norms co-exist alongside one another - accepted legal pluralism
who supports the concept of legal pluralism?
Griffiths
what are examples of legal pluralism in arbitration?
arbitration act 1996 - arbitration can be conducted in religious courts for civil law matters
Beth Din - Jewish courts that function as a legal system
how did Prentice, former Justice Minister in 2008, describe the function and limits of religious courts?
‘any member of a religious community has the option to use religious courts’
BUT if the decisions are brought to a national court, they will be ‘subject to national law’
what are family law statutory exemptions based on religious beliefs?
Adoption and Children Act 2002
allow a ‘special guardianship’ instead of full adoption so relationship with parents is not severed as this is prohibited under Islamic law
Divorce (Religious Marriages) Act 2002
possible for judges to request a couple divorce religiously before civil divorce is granted
what are criminal law statutory exemptions based on religious beliefs?
Motorcycle Crash Helmets (Religious Exemption) Act 1974
Sikhs can wear turbans instead of helmets
CJA 2003
allows Sikh exemption from general ban of offensive weapons
Water Act 1989
allows Hindus to scatter the ashes of the dead on English rivers
why are religious accommodations allowed in statute?
not seen to impede upon state legal authority
still the state who are creating and enforcing the law
how have religious norms been incorporated into English secular law?
english common law - Barth
private contract law - Ali v Ali
statutory interpretation - Ghai
what happened in the Barth 2000 case?
couple had married in a unregistered sikh temple in 1956
husband died and the widow applied for a widow’s pension
court used a creative interpretation to consider it a ‘valid’ marriage
(long period of cohabitation)
common law accommodation
what happened in Ali v Ali 2001?
Mr Ali sought a talaq but Mrs Ali argued the mahr of £30,001 hadn’t been paid
mahr payment not recognised in UK private law
BUT recognition of lack of other financial relief and so established the agreement as contractual
court awarded £30,000 -£1
Private contract law accommodation
what happened in the Ghai case?
HL
CA
Ghai was Hindu who requested use of land for traditional funeral pyres
denied by Newcastle CC - Cremation Act 1902 meant it had to be done in a building
Ghai argued it violated art 9 - freedom of religion
HL - Cranston considered the ‘public reaction’ to the ‘abhorrent’ event
CA - didn’t need to consider public policy, statutory interpretation meant the permanent pyres could be understood as buildings
Statutory interpretation accommodation
what case held that art. 9 had been engaged but not interfered with?
R v Denbigh High School ex p. Begum 2006
what case saw the decision not to allow an exemption in order to protect the agricultural industry?
R v Welsh Ministers 2007
Hindu cow Shambo tested positive for bovine TB and court ruled ir had to be slaughter to prevent the spread
what does Shachar argue are the risks associated with extensive accommodations?
if state allows too much religious autonomy then individuals from those groups will have their civil rights undermined
too much accommodation leaves scope for abuse
reinforces power hierarchies
government loose full control
