Legal Pluralism

Question 1

what is meant by a normative system?

Answer 1

any system of rules or standards that co-ordinate behaviour or order

Question 2

how can resolutions between religious norms and state legal order be made?

Answer 2

arbitration - family disputes
statutes - motorbike helmet accommodations for Sikhs
case law - imaginative interpretation

Question 3

how does J. Austin describe state law?

Answer 3

secular and distinguished from other phenomena

ex//religion and morality

Question 4

where is there a strict separation between religion and the state?

what is this known as?

Answer 4

France

laïcité

Question 5

who called for a greater tolerance of religions in the English legal system?

Answer 5

Archbishop of Canterbury

Dr Rowan Williams

Question 6

what statute highlights the ability to refuse performance based on ‘conscientious objection’?

Answer 6

Abortion Act 1967 s4

doctors enabled to deny the performance

Question 7

what did M. Siddiqui find in the 2018 review into the application of Sharia Law in the UK?

Answer 7

‘regarded by some as keeping many Muslims isolated, entrenched and with little social and psychological stake in wider British citizenship and civic life’

Question 8

what controversy highlighted the conflict between the western legal freedoms and religious blasphemy?

Answer 8

Rushdie’s ‘Satanic Verses’

amounted to the issuing of a fatwa by the supreme leader of Iran

Question 9

how did the HO reject the recommendation of Sharia Law having a self-governing body in the UK?

Answer 9

‘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’

Question 10

why does Menski argue there may still be a divide in accepted sources of legal authority?

Answer 10

‘as Muslims, they still put up God’s aw above the state law in the first place’

Question 11

what are the two main positions on legal pluralism?

Answer 11

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

Question 12

who supports the concept of legal pluralism?

Answer 12

Griffiths

Question 13

what are examples of legal pluralism in arbitration?

Answer 13

arbitration act 1996 - arbitration can be conducted in religious courts for civil law matters

Beth Din - Jewish courts that function as a legal system

Question 14

how did Prentice, former Justice Minister in 2008, describe the function and limits of religious courts?

Answer 14

‘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’

Question 15

what are family law statutory exemptions based on religious beliefs?

Answer 15

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

Question 16

what are criminal law statutory exemptions based on religious beliefs?

Answer 16

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

Question 17

why are religious accommodations allowed in statute?

Answer 17

not seen to impede upon state legal authority

still the state who are creating and enforcing the law

Question 18

how have religious norms been incorporated into English secular law?

Answer 18

english common law - Barth

private contract law - Ali v Ali

statutory interpretation - Ghai

Question 19

what happened in the Barth 2000 case?

Answer 19

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

Question 20

what happened in Ali v Ali 2001?

Answer 20

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

Question 21

what happened in the Ghai case?
HL
CA

Answer 21

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

Question 22

what case held that art. 9 had been engaged but not interfered with?

Answer 22

R v Denbigh High School ex p. Begum 2006

Question 23

what case saw the decision not to allow an exemption in order to protect the agricultural industry?

Answer 23

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

Question 24

what does Shachar argue are the risks associated with extensive accommodations?

Answer 24

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

Question 25

what does Professor An-Na’im believe about limits on accommodation?

Answer 25

necessary in order to protect both religion and state law

they should not be seen as directly working the same

mixing the two would devalue and deny what is unique about each of them

should be incorporation through civic reasoning

Question 26

what are the fundamental differences between state law and religious law?

Answer 26

state law
made by humans, for humans, enforced by government

religious law
made by God, given to humans, not mediated by government

Question 27

what perspective does An-Na’im write from on Islamic law?

Answer 27

he is a Muslim HR advocate from Sudan

Sudan had called to enforce Sharia law as state law in 1983

Question 28

why does Prof An-Na’im argue Islamic law cannot be state law?

Answer 28

state law can be qualified and changed, religious law should not be

Islamic law is religiously binding, does not require enforcement, instead it is followed

declaration of Islamic law authority by the state undermines its inherent and intrinsic legitimacy

religious authority is lost - the enforcement means it becomes state law

islamic law needs to exist in its ‘own field of competence and authority’

differing interpretations - Sunni vs Shi’a

Question 29

what are calls for Islamic law as state law mostly rooted in?

Answer 29

desire for post-colonial self-determination