Accommodating minority legal orders

maleiha-malik.238.321.sMaleiha Malik

This article features in Public Spirit’s special theme on Equalities and Religious Difference.

The incorporation of minority customs has been a vexed topic in recent years, in large part because of the widespread – but misplaced – perception that Islamic law poses a fundamental threat to liberal democracy. There has been a tendency to make blanket judgements about complex and differentiated minority practices. The principle of ‘cultural voluntarism’, however, offers a way of incorporating minority customs that balances equality and religious diversity, while encouraging minority groups to reconsider traditional practices.

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In recent years, debates about sharia law and sharia arbitration for British Muslims have dominated public discussions. These debates raise a wider question about faith, politics and law. The distinct religious and cultural norms of groups such as Jews, Christians, Muslims, and others with community-based laws, are often misleadingly described as ‘parallel legal systems’. Since 9/11 and 7/7 these alternative legal orders have been mainly discussed in the context of Islam and sharia law, and often sensationalised by the media as an ominous threat to our liberal democracy. ‘Muscular liberals’ argue that there is no place for accommodation religious norms – or what minorities consider their religious ‘folk’ law – within a secular liberal democracy. I disagree. I argue that that a pluralist liberal democracy can accommodate some forms of religious ‘folk’ law whilst at the same time respecting liberal values as well as the rights to equality of all citizens, especially women, gays and lesbians.

In Minority Legal Orders in the UK I set out the practical ways in which the state can respond to, and work with, minority legal orders. The key points I raised include the fact that minority legal orders are not a new phenomenon. As early as the medieval period, Europe had laws that overlapped – incorporating different geographical and cultural legal systems. The report notes that in a modern liberal democracy the state is the sovereign legal system. Where there is no conflict with a human right or an equality right, it is sometimes reasonable for people to make requests for the legal accommodation of their cultural or religious practices, including their minority legal traditions.

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“Minority legal orders are not a new phenomenon. As early as the medieval period, Europe had laws that overlapped.”

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Cultural and religious diversity in the UK is, and will continue to be, a crucial context in which lawyers and judges make decisions. Personal identities are fluid and an individual can consider themselves part of several cultural and religious communities. But although individuals have choices about their identity, special attention needs to be paid to ensure that vulnerable individuals within a minority – such as women, gays, lesbians, the elderly and children – are not caused harm because of membership of their cultural or religious community. For these reasons, I have argued that the Equality and Human Rights Commission should examine the impact of minority legal orders on these groups, especially women users who need to have access to religious marriages and divorces. This is an important part of the EHRC’s work to safeguard the human rights and equality for all citizens, including women from cultural and religious minorities.

Minority ordersMinority Legal Orders in the UK sets out a mixture of approaches and techniques can be used in legal and political processes to make sure that minorities are heard, liberal democratic values are upheld, and that final decisions have credibility in the eyes of the majority. More specifically, legal techniques that are available to lawyers and judges include the twin concepts of ‘cultural voluntarism’ (which includes ‘severance’) that can be a useful guide to adjudication in the context of legal cases that involve minority cultural and religious practices. Cultural voluntarism allows the minority legal order to function but it gives clear precedence to state law, especially where there is a conflict between the minority legal order and a human right or equality law. Severance is the idea that the different minority practices (norms and rules) can be separated so that they can be assessed and evaluated independently of the whole minority legal order. Taken together, cultural voluntarism and severance maintains the right of the state (judges, legislators and public officials) to pick and choose whether, and how, they want to reject, recognise or accommodate the minority practice.

Recent decisions of the UK courts illustrate the way in which cultural voluntarism can work in practice. KC & NCC v City of Westminster Social and Communities Services Department & Anor[1] concerned the validity of a marriage between an incapacitated adult male resident in England and his bride who was a Bangladeshi citizen. The Court of Appeal held that a marriage that was permissible according to the rules of the local Muslim community was not recognised under English law because of public policy considerations. Unlike the European Court of Human Rights’ decision in Refah Partisi (The Welfare Party) and Others v Turkey,[2] the UK Court of Appeal did not make blanket statements that Muslim legal norms (also sometimes called the sharia) were always and for all time incompatible with state law or democratic values. Instead, those Muslim norms that were contrary to public policy were precisely identified and held to be incompatible with public policy.

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“Dialogue between state legal institutions and the minority legal order can be used to encourage the minority group to reconsider their own norms.”

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The flexibility that is available through a process of cultural voluntarism has some advantages. It may, however, also have disadvantages because it can create uncertainty. A ‘cultural voluntarism’ approach will make it more difficult to predict when, how and on what terms there will be intervention. Individuals who are members of minority communities may become unsure about whether or not one of their cultural or religious practices (such as marriage or divorce) will be recognised, enforced or carry legal consequences. In practice, fears about uncertainty may be exaggerated. The response of the state legal system will be easy to predict in situations that involve violence, coercion or the clear breach of a common human right or equality standard. In borderline cases, the state legal system will need to precisely scrutinise the rules of the minority legal order to consider the impact not only on the individual parties and minority community but also the wider public interest of the majority.

Although cultural voluntarism may create some uncertainty, this approach also provides opportunities for the transformation of the minority legal order. Dialogue between mainstream state legal institutions and the minority legal order can be used to encourage the minority (cultural or religious) group to reconsider their own norms in the light of liberal constitutional principles such as equality. One recent example that illustrates this point is the negotiation between the Disability Rights Commission and Muslim religious authorities that led to the restatement of Muslims norms that had previously prohibited contact with dogs. This restatement made clear that Muslims could come into contact with guide dogs in order to provide services (such as access to restaurants and taxis) to the blind and the partially sighted. This particular dialogue between the Disability Rights Commission and Muslim organisations was so successful in permanently shifting Muslim norms that some mosques have now allowed entry to guide dogs.[3]

A liberal democracy can follow different approaches to minority legal orders ranging from absolute prohibition using the criminal law through to mainstreaming. In some situations the norms of the minority legal order will cause harm to an individual and they will need to be prohibited, using the full force of the criminal law where necessary. In other contexts, there may be no conflict or a convergence so that it is possible to incorporate some aspects of the minority legal order without undermining human rights, equality law or public policy. In order to decide which approach is appropriate the state legal system and its representatives (judges and legislators) need to have detailed and accurate factual information about minority legal orders in the UK. This is why it is important for us to move beyond the sensationalised discussion of this issue that has focused on Islam and sharia law. Instead, we need to have a sensible and objective public discussion about how the state can work constructively with minority groups, such as British Muslims, and their minority legal traditions.

This article is based on the report Minority Legal Orders in the UK: Minorities, Pluralism and the Law, which was published by the British Academy Policy Centre on 19 April 2012 and as a comment in The Barrister in 2012. Copies of the report and the executive summary can be downloaded at:

http://www.britac.ac.uk/policy/Minority-legal-orders.cfm

Maleiha Malik is Professor of Law at King’s College, University of London. She has written extensively on discrimination law, minority protection and feminist theory and is the co-author of Discrimination Law: Theory and Practice.


[1] [2008] EWCA Civ 198

[2] Judgment of the European Court of Human Rights, Strasbourg, February 13, 2003.

[3] See Maleiha Malik, ‘From Conflict to Cohesion: Competing Interests in Equality Law and Policy’ (Equality and Diversity Forum, London, 2008), 15-16.

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