Religious and Cultural Diversity and English Family Law Flashcards
Key questions
1) What is legal pluralism in England?
2) Nature and interaction between religious personal law systems and state law?
3) How far have ‘unofficial’ laws been incorporated into state system?
4) Are these minority bodies creating new forms of governance? -> How?
3 modernist postulations of law?
1) Individual rationality is the single source of values
2) Formal/abstract universalism of the law, it applies to everyone
3) Centrality of ‘state justice’
How did MERRY 1988 describe legal pluralism?
Situation where two or more legal systems co-exist in the same social field
Examples of legal pluralism in London?
HENDON = Jewish Beth Din exists alongside English law EALING = Islamic Shariah Council
4 main conflicts of legal pluarlism
1) Assimilation
2) Integration
3) Segregation
4) Acculturation
2 cases that highlight difference between private and public law and legal pluralism
BEGUM v DENBIGH HIGH SCHOOL 2007
AZMI v KIRKLEES 2007
BEGUM v DENBIGH HIGH SCHOOL 2007
- HoL found that the suspension of a Muslim pupil for her refusal to comply with the dress code was not a violation of A9 HRA 1998
AZMI v KIRKLEES 2007
- Muslim woman worked as teaching assistant and refused to remove full face veil when working with male teacher
- She was suspended and brought claim against council for religious discrimination
- DISMISSED: council had acted reasonably and proportionately and there was no indirect discrimination, it was just about her whole face being covered
What is interesting about the BEGUM and AZMI cases?
It shows a willingness of engagement to use state public law to lay claim to religious rights
SHAH 2005 on English legal pluralism?
- Concept of law must be reevaluated in a diverse/plural society to make law relevant
- Move away from concepts of homogeneity and objectivity (particularly ‘reasonable man’) - more subjective
- Provide wider/alternative definitions to more accurately represent a diverse cultural community
BALLARD 2006 on legal pluralism?
Agrees with SHAH 2005
- Although common law aims to be relevant to context, the reasonable man test fails
- Reasonable man test is objective and ignorant of cultural/religious codes of diverse pool of litigants
- Restrictive nature of current law creates an unhelpful dichotomy of ‘us’ vs ‘them’
SHAH 2005 and BALLARD 2006 take particular issue with which core common law principles?
Homogeneity and objectivity -> reasonable man standard is narrow and ignorant
Particular area of issue?
Marriage
Why is marriage such a tricky issue in a legally plural society?
In order to be valid a marriage must meet requirements of s11 MCA 1973 -> based entirely within Christianity
Case that noted important factors that would result in a non-marriage?
HUDSON v LEIGH 2009
Noted y JUSTICE BODEY
