Separating State Law and Religious Law:
A normative system tells us what we ought to do, but are not necessarily obliged to do. Examples of these systems can be found in religious law, morality and ethics etc. By contrast, the secular law is the legally enforceable law of the state.
This creates an issue of how secular and normative systems should coexist and, where they do and they conflict, which system is to be enforced.
Legal Pluralism:
The existence of multiple legal systems within one population and/or geographical area is known as legal pluralism. Many liberal countries have a hybrid system of secular and religious law where they coexist.
Since the English legal system and Christianity have been (and still are) heavily intertwined for many centuries, issues regarding coexistence generally arise from minority religious groups.
Opinions:
Taking a positivist view of the law, rule-based secular law is and should remain to be supreme. [1] However, from a Muslim perspective, ‘Western secular state law is not necessarily superior to any other form of legal regulation.’
Rowan Williams, the former Archbishop of Canterbury called for greater tolerance of religions within the English legal system. [2]
Theresa May’s government took the stance that religious law should be inferior to the law, stating that ‘Sharia law has no jurisdiction in the UK and we would not facilitate or endorse regulation, which could present councils as an alternative to UK law’. [3]
Professor Werner Menski believes that people do not give up their religious laws simply because they come to the UK. This means that minority religious people essentially follow 2 legal systems.
Legal Centralism:
State law and religious norms are mutually exclusive systems is known as legal centralism.
Legal Pluralism in the English Legal System:
Arbitration Courts:
Arbitration is a ‘private form of adjudication’. [4]
The practice began in the 18th century to resolve merchant disputes.
The Arbitration Act 1996 allows members of religious groups to have their arbitration in religious courts as opposed to civil courts. In these courts, religious law is applied, not English law. For religious arbitration to take place, both parties have to agree.
Statutes:
Courts may use statutory interpretation as a means of allowing for legal pluralism and some statutes have provisions that accommodate for other (normally religious) beliefs.
Abortion:
Many people rely on religious arguments to deny the right of abortion.
The Abortion Act attempts to accommodate religious views while legalising abortion. Doctors are not under a duty to abort a foetus if they have a conscientious objection, providing there is not a threat to life or of grave injury to the physical or mental health of the pregnant woman. [5]
Marriage:
Since 1753, Jews and Quakers have been allowed to make a legally recognised marriage through a ceremony that is not conventionally recognised by the law. [6]
Civil registrars can carry out civil marriages in other religious buildings if they have been registered.
Judges may request that a couple divorce through a religious ceremony before a civil divorce if granted. [7]
Adoption:
Adoption is prohibited under Islamic law. Muslim families can use ‘special guardianship’ that is an alternative from full adoption. [8]
Safety:
Sikhs are exempt from wearing a crash helmet on a motorbike. [9]
Sikh people are exempt from the general ban on offensive weapons to allow them to carry a kirpan. [10]
Food / Drink:
Jews and Muslims are allowed to slaughter animals in accordance with kosher and halal requirements. [11]
Death:
Hindus may scatter the ashes of their dead in rivers. [12]
Common Law / Case Law:
The judiciary generally attempt to incorporate minority religious reasoning into their judgements in order to find just outcomes. However, sometimes other means (such as statutory interpretation) are used to achieve the same goal.
In Barth, B married in a Sikh temple that was not registered at the time. When she went to apply for widow’s pension following her husband’s death, the court found that their marriage was valid even though there was no evidence of it. A presumption had arisen from the long period of cohabitation under common law.
In Ghai, G was a Hindu who requested that his body be burned in a funeral pyre upon his death. NCC rejected G’s request for land as they anticipated that a crematorium would be built on the site.
G argued that it was his right under ECHR under article 9 for freedom of thought, conscience and religion to be burned in such a way. Under the Human Rights Act, the court was obliged to interpret the law so it is compatible with ECHR.
The High Court agreed that there was an interference with art 9.1, but it was justified under art 9.2 as a significant number of people may find the pyre offensive.
The Court of Appeal overruled the High Court stating that ECHR did not come into question. They ruled that the real issue was a matter of statutory interpretation of the word ‘building’. The court interprets this in a way that allows for the funeral pyre. Many have criticised this ruling - the court has provided justice 'through the back door' by using statutory interpretation rather than addressing the real issue at hand.
Private Contract Law:
Private contracts (between family members) are not legal obligations, but if they are broken then the state will enforce the terms. These contracts tend to also have implied terms, demonstrating how normative and secular legal systems exist.
In Ali v Ali, a husband had promised his wife £30,001 as mahr. The husband sought to terminate the marriage. The wife petitioned the court that a civil divorce should not be allowed unless the mahr is paid. As there was a private contract between them to be paid in the case of a divorce, the court awarded in favour of the wife.
Limits to the Legal Accommodation of Legal Pluralism:
Religious arbitration is limited to only civil matters.
The state decides what exceptions it will allow. State law is supreme to religious law.
‘The use of religious courts to deal with personal disputes is well established. Any member of a religious community has the option to use religious courts and to agree to abide by their decisions. But [with the caveat that] these decisions [if they are brought before the national courts are going to be] subject to national law’. [13]
Opinions:
Ayelet Shachar argues that there needs to be limits to the legal accommodation of religious law to protect vulnerable member of religious communities. [14] Too much accommodation leaves scope for abuse and power hierarchies. [15]
An-Na’Im argues that religious and state laws are different normative systems. Mixing the two devalues and dilutes the importance of both. [16] Religious law should not be recognised as state law, but aspects of religious practice should be incorporated into civic reasoning. [17]
Resources:
References:
[1] John Austin, The Province of Jurisprudence Determined (1832) [2] Archbishop of Canterbury: Rowan Williams, Speech to Inner Temple (2008) [3] Home Office [4] Simon Roberts and Michael Palmer, Dispute Resolution (Cambridge University Press 2005) [5] Abortion Act (1967) s4 [6] Marriage Act 1949 [7] Divorce (Religious Marriages) Act 2002 [8] Adoption and Children’s Act 2002 [9] Motor-Cycle Crash Helmets (Religious Exemption) Act 1976 [10] Criminal Justice Act 2003 [11] Slaughter of Poultry Act 1967; Slaughterhouses Act 1974 [12] Water Act 1989 [13] Bridget Prentice, former Justice Minister (HC 23 October 2008) [14] Ayelet Schachar ‘Privatizing Diversity’ (2008) Theoretical Inquiries in Law, Vol 9, 573-607 [15] Ayelet Schachar ‘Privatizing Diversity’ (2008) Theoretical Inquiries in Law, Vol 9, 573-607 [16] Abdullahi An-Na’Im, ‘The Compatibility Dialectic’ (2010) Modern Law Review, 73(1): 1-29 [17] Abdullahi An-Na’Im, ‘The Compatibility Dialectic’ (2010) Modern Law Review, 73(1): 1-29
Cases Mentioned:
Barth [2000] 1 FLR 8
Ali v Ali (2001)
R (on the application of Ghai) v Newcastle City Council (Ramgharia Gurdwara, Hitchin and another intervening)
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