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1998

The dilemmas of the law in a multicultural society

by Jenny Taylor

Preamble

There exist in Britain now significant religious minorities seeking to live their lives in accordance with legal systems that have evolved in very different ways, and in a very different locale from the majority of Britain’s inhabitants.  Anthropologist Roger Ballard has written that Britain’s social order has changed over the last thirty years more profoundly and more permanently than at any time since the Norman conquest in 1066, over 900 years ago.  There is a growing body of research to demonstrate that these minorities are living by laws and in accordance with values radically at variance with mainstream society.  In a democracy where power is vested in the consent of individuals rather than groups or institutions, and there are few official conditions placed on what is essentially a tacit contract of citizenship, this has as much of a bearing on Britain’s legal and political process, as it has on the religious demography of the country.

The majority legal system has in general distanced itself from its religious sources, while, from a basis of a piecemeal rationality, as one writer1 puts it, seeks to adjudicate, even legislate upon the religious demands of the minorities.  There exists in Brtain today, a tension even an antagonism between religion and the law which renders such legislation often dangerously incoherent and inconsistent.

Added to these two factors is the muddle that race relations legislation is in as we shall see, and the emergence of strident social and political claims based on a definition of ethnicity broader than merely race, namely religion.  By relegating religion to a minor criterion of ethnicity, the law itself is inadequate in its view of the person - and the implications, no matter how ‘secular’ the law tries to be, are obvious.

Law is thevital component in any mutual socio/religious understanding in a multi-cultural society. It is argued in a new interdisciplinary book of essays on politics and culture that ‘. . . multiculturalism is the political outcome of ongoing power struggles and collective negotiations of cultural, ethnic and racial differences.’2  Law is pivotal to that struggle, which makes the political and legal process religious in a new way. Yet there are very few people able or willing to make a serious contribution to this debate largely because of 19th century philosophical developments in which  religion was relegated from the discourse. However, religion is in large measure the basis on which minorities are negotiating their place in the new Britian. How a secular society faces up to its religious ‘truth’ is, I believe,the key issue for the modern multicultural society - 3and the literature on law and jurisprudence is a useful prism through which to peer at the problem.
The paper is divided into three sections

  1. Immigration and Pluralism.  In which I examine some recent anomalies
  2. A Brief History of Legal Theory: From Cicero to positivism, and the modern ‘piecemeal rationale’; the attempt, within a Human Rights framework, to resolve the anomalies.
  3. Twentieth Century Writers on the Law

 

1 Immigration and pluralism

Muslims like Jews have a sophisticated system of law, deemed as found in sacred writings.  Some say the observance of law is itself a religious act.  Others describe the shariah as both positive law and moral philosophy.  Either way it is not regarded as something to be observed in the private, domestic or merely ritual sense anticipated by Western administrators, but in terms of social and self-definition. Werner Menski writes:

‘In a modern Western setting, the convenient division of the private and the public sphere should have the effect that a migrant’s religion remains a matter for the heart, or the home, but not for the public sphere.  However, this is not how the interaction of law and religion works in reality and so the modern state does get involved in complex questions concerning diaspora religions.’4

Marriage and divorce law exhibit the most worrying degree of this complexity. The prevailing principle of personal autonomy breaks down where, for example, women are religiously disempowered.

Zaki Badawi explains the problem in the following manner:

A common problem was that you get a woman seeking a divorce in the courts and obtaining it.  She becomes, therefore, eligible for re-marriage in accordance with the civil law, but her husband has not given her a talaq which is the prerogative of the husband within an ordinary contract of marriage so that the woman becomes unmarried according to the civil law but still married according to the Shari’a law.5

The Shari’ah Council has been set up in London to adjudicate such matters.  According to literature published by them, 95% of all queries referred to them concern ‘matrimonial problems’ - most often Muslim women seeking an Islamic divorce from their husbands.  Lucy Carroll, an American lawyer practicing in England and writing in Muslim Minority Affairs in 1997, notes that the Shariah Council has no legal status in England, and none under Pakistani, Bangladeshi or Indian law.  And yet its ‘premiss appears to be that a couple may be simultaneously married to each other under two sets of legal régimes, and that each must be individually dissolved.’  The Shariah Council does not recognise ‘civil’ divorce.6

Carroll believes there is a global phenomenon, where Muslims do not naturally identify themselves with national and international laws.  Nonetheless,

It is important to realize that in the modern world Islamic law, as law, does not exist as some disembodied entity floating in the stratosphere, overreaching national boundaries and superseding national law.  In the modern world, Islamic law exists only within the context of a nation-state; and within the boundaries of any particular state it is only enforced and enforceable to the extnet that, and subject to the reforms and modifications, that, the nation-state decrees.

Yet her article details the typical insistence of one woman she had been advising who, after obtaining a decree absolute from an English Court, approached the Sharia Council.

She explained to me that she thought such an Islamic divorce was necessary in two respects  (i) She wanted a divorce that would be recognized in Pakistani law.  Although the woman is a British national, was domiciled in England prior to her marriage, and resumed her English domicile after the parties separated some years prior to the divorce, her (ex) husband is a Pakistani national and domiciled in that country.  She and her family have close friends in Pakistan and she wanted to be free to visit that country without harassment and worry.  And (ii) she wanted a divorce that would be recognized in certain countries of the Middle East (eg Bahrain) where she is likely to travel because she has relatives living there.  The fear was that in the absence of an ‘Islamic’ divorce, in addition to the decree absolute, her ex-husband might follow her to, or encounter her in, Pakistan or Bahrain, and there claim his conjugal rights and enforce her wifely obedience on the ground that the matrimonial bond still subsisted. 7

It is clear from this that as a total system - a system clearly inhering in religious and cultural conviction - Muslim law is theoretically at odds within the West where the law  has distanced itself from its religious sources yet has to enforce itself on religious people.  Rather than doing so from the basis of a truth it clearly defines, it does so, or rather, fails to, from some other rationale - usually ‘neutrality’ - or ‘equality’. This was most clearly expressed by Lord Justice Scrutton in 1961, in the case of Re Carroll - ‘It is, I hope, unnecessary to say that the Court is perfectly impartial in matters of religion’ - and Cross J’s comment in Neville Estates Ltd v. Madden: ‘[a]s between different religions the law stands neutral.’8

This principle is not only useless when it comes to protecting female citizens from religious exploitation by their unequal male relatives, it is more generally fallacious. Anthony Bradney based his doctoral research into the law’s purported neutrality  by reference to the principle of personal autonomy.  He showed from legislation that seemed to confer concessions to one religious group, namely Sikhs, which it did not confer on others, that the law was in fact partial.  There are many examples of this. Sikhs have been granted ethnic as well as religious status in law despite Lord Denning’s ruling in the Appeal Court that the people of the Punjab are not all Sikh, but incude Hindus, Christians and many others. This status has not been extended to Muslims.  The reasons behind the special treatment for Sikhs are confused by Indian politics, but have principally to do with a famous case involving a Sikh boy at an English public school who was barred entry unless he cut his hair and remove his turban.9  The headmaster was prosecuted under the Race Relations Act.  Although religion was not part of the original 1976 Act’s definition of ‘racial group’, judges introduced the criterion during the Mandla appeal in 1983 as part of the definition of ethnicity.  This was a glaring case of public policy being created by un-elected legislaters, getting round the obvious fact that the boy had experienced discrimination - but was not part of a distinctive race.

Muslims on the other hand have argued their case for blasphemy law for instance, or new legislation to outlaw religious discrimination, but the louder they have argued their case, the less success they’ve had. Menski concludes that Muslims now pursue simultaneously a variety of strategies for lobbying - but the legislative criteria are vague. He says:

The state has been pursuing its well-established restrictive strategy of making special allowances for some religious practices - which have never  been coherently researched or analysed.10

Muslim butchers are allowed to procure halal meat and Sikhs can ride motorcycles without wearing crash helmets.  Jews have their aided schools .  A male living together with two women is not illegal though a Muslim married to two is! Menski states that a liberal-looking tendency on the part of the law has created its own difficulties about defining limits to exceptions and has given rise to charges of discrimination on the ground of religion.

In 1989, Sikhs were again granted exemption from existing law, this time requiring the wearing of safety helmets on construction sites under the Employment Act, which was not extended to Rastafarians, despite various biblical injunctions such as Leviticus 21:5, observed by Rastafarians, that require that hair should not be cut. Lord Strathclyde,  who argued the government’s case, resisted extending the exemption to other areas of work and, hence implicitly, to other religious groups - but  was clearly swayed by the weight of political pressure in his reasoning. There was, he argued, ‘no similar concentration of Sikhs in any other industry’ and implicitly, there was no similar concentration of any other relevant religion in the construction industry11 . Bradney convincingly demonstrates that the law is not neutral as regards religion on the law’s own terms of personal autonomy, if it forces a religious group to choose between employment in the construction industry and the dictates of faith.  This leads to the impression that Sikhs mobilised more effectively than Rastafarians and that religious ‘neutrality’ as observed by the State is sometimes just a numbers game.12

One writer has commented:

the operative concepts of justice in the United Kingdom governing the distribution of religious rights seems to be based upon the notion of need and upon the notion of demand - it is these, rather than an overriding idea of equality, which act as determinants in designing legal rules conferring religious rights.  The greater the number demanding different treatment, and the louder that demand becomes, the more likely the possibility of actual special legal treatment .13

Similarly the Shops Act of 1950  made allowance for Jewish religious observance - allowing them to open for trade for half the day on Sundays - but made none for Muslims. In that case, the law appears to have treated as less important the holy days of some religions than others. It may be one of the reasons behind the loss of Sunday as a special day for everyone.

Not only is the law in a state of uncertainty, even pretence, appearing to legislate with magisterial, even magnanimous impartiality while clearly failing to impose justice, but it is also refusing to recognise the problem.  Menski calls this phenomenon ‘purposive non-discourse’ and quotes an anonymous  Home Office Minister, in an address to lawyers as saying:  ‘There are things we do no wish to know’.

Only recently has it become fashionable again for lawyers to consider religion in legal terms - and that’s due obviously to the migration of religiously self-defining people.  Bradney’s research breaks new ground, as does Carolyn Hamilton with Family, Law and Religion examining the implications of Human Rights legislation for religious minority children in the UK and the US.  Both these works examine the question from a secular, Enlightenment position (see below) which can best be summarised by a quotation from Jacques Waardenburg in a paper he wrote - and has not contradicted - in 1979.

Time was not yet ripe to interpret a particular religious doctrine or other phenomenon as a specific and culturally conditioned solution to certain universal problems of man’s existence.

He calls this ‘parochialism’ - definable by reference to the common sense universals available to all rational mortals in the modern day. It is possible to see policy makers attempting to deal with the facts of religiosity in just this vein - while being forced to stay true to contradictory liberal values to do with culture and autonomy.

 

2 A Brief History of Law

How did this state of affairs come about?  This is an important question if we are to understand both the refusal of religous minorities actively to uphold a legal system they do not identify with - and the perhaps more important question of the law’s authority in a secular age. There is only space here for the merest historical sketch.

Nathaniel Micklem, Principal of Mansfield College Oxford during the postwar period, noted  that

Lawyers today would smile at the suggestion that their subject is a branch of moral philosophy ... 14

Yet even for the pagan Cicero, there had been a transcendent guarantor of justice, whom he knew as ‘God’, albeit a Platonic, disconnected God.

For reason did exist, derived from the nature of the universe, urging men to right conduct and diverting them from wrongdoing, and this reason did not first become Law when it was written down, but when it first came into existence; and it came into existence simultaneously with the divine mind.  Wherefore the true and primal Law, designed for command and prohibition, is the right reason of the high God.15

The Romans bequeathed western civilization the legacy of legal codification and ideas of the transcendent and therefore immutable authority of the law. Christian thinkers added to this legacy the force of their faith, harnessing ‘natural law’ to divine law revealed in the Bible, and setting in train centuries of ecclesiastical power broking.

The theological unravelling process began in the 13th Century with the rediscovery by Europe of Greek thought and particularly Aristotle, largely through Arab translations, and as human reason struggled with revelation for authority in human affairs. St Thomas Aquinas’ (1225 -74) separated God’s eternal law as revealed in Christian doctrine from natural law discernible by reason although, drawing on Aristotle’s thinking, he believed that if laws did not coincide with principles of ultimate law, it was not law at all.  His thinking lies behind the eventual secularization - or ‘privatization’ of the entire legal system.

In the 14th century William of Ockham went a step further and said that there was no congruence at all between God’s will and nature.   The obligation to obey law was not vested in a moral imperative inherent in nature - the bridge between man and God - but simply because God willed it.  Ockham could therefore write, albeit anchored to a divine conviction: ‘Thus Law is Will, pure Will.’ This has predictable results once a society loses its faith in God and God’s love, for one is then left with Will alone.

The Englightenment added fuel to this fire. It witnessed, largely due to the great Reformation Christian thinkers like Bacon and Grotius, and later John Locke, the further decoupling of notions of political authority and social organisation from theology.

Francis Bacon (1561 - 1626) the Morning Star of the Enlightenment, sought to replace dogmatic assertion with free inquiry, to unleash the human mind from the shackles of a corrupt church.  He presented law as the product of simple considerations of human utility. Lord Denning points out that the Sabbath was made for man, and that human utility is the point of the law, yet, without its original context of faith in a loving Creator God, law becomes ‘a mere technique for the realization of whatever objects men may wish’ to quote one modern writer.16  Bentham decided those ends were summed up as ‘happiness’ - a hugely pervasive philosophy in modern thought.

Finally, and equally as important in early legal theory was the work of the Dutch Protestant Hugo de Groot or Grotius (1583 - 1645), writing at the end of the Thirty Years War.  His book De iure belli et pacis published in 1625 was inspired by a desire to heal the wounds that had divided Christendom.  The war had been perhaps the nadir of Christendom,  the church’s lowest point, when Christians slaughtered one another in the name of their idea of truth.  Grotius wanted to find a law that would bind nations in a common legal order that was valid ‘as if God did not exist’ - though ironically, it was his very belief that God did exist that could lead him to such a bold search for peace, and that has bequeathed to us our system of international human law.  This famous aphorism encouraged the final divorce of natural law from its divine source.  He defined a legal system based on respect for others and their difference as a way of avoiding war - and as Richard Tuck has said: ‘rights [came] to usurp the whole of natural law theory.’ 17

Once the Protestant theorists had extricated the human conscience from the dictates of church/state authority, and thereby risked the undesired but almost inevitable decoupling of the conscience from divine authority, the law was in the same strange limbo as modern man himself - until we reach our present dilemma, whereby the criteria that have recently governed us, such as the right to self-autonomy, the right to religious freedom and majority rule all start to contradict each other within less and less securely defined notions of community, nation and identity.

The answer has been thought to be neutrality or objectivity: that somewhere there is a neutral position, enshrinable in rules and legal codes from which to judge the great issues of religious and moral difference.  Legal positivism is the name given to the science based on what is a philosophical position: that all you can see is all there is.  And that to make judgements of value, to seek meanings or causes, to seek good and bad in political and policy questions are unscientific and run the old risk of superstition and obscurantism.  When the law sees itself in this way, that all there is is the rules mechanistically and self-referentially applied, we end up with what I described earlier - a neutrality about the most important questions that face society that is in fact not neutral at all, based not on the rock of a coherent transparent objective but on the shifting sands of expediency, sentiment or fashion. Instead of protecting all the people, it gives way to the thing it seeks to avoid: partiality, prejudice and ultimately the implication of force.

In 1996 The Timescarried a remarkable report into the case of a 13-year old Sheffield school girl who was taken ‘on holiday’ to marry her cousin in Pakistan.  In fact, she had been abducted into a forced marriage by her anxious parents as punishment for becoming ‘too western’.  No action was taken by the school, the education authority or the government, despite this being a common occurrence. A Foreign Office spokesman was quoted as saying: ‘You can’t force ideas on people who have held different ideas for generations.  You don’t know who is on the right side, or even if there is a right side.’

Southall Black Sisters’ spokeswoman Hanana Siddiqui said the problem would remain until public opinion becomes ‘more coherent’ on the subject.

‘[They] think it’s a cultural practice, that it would be seen as ‘intolerant’ to do anything.  We have even had to take social services departments to court to force them to have a girl taken into care.  It’s part of multicultural politics.  They’re frightened of the reaction they’d get from the families and the community  - frightened of being called racist or being accused of interfering in minority cultures, of being called intolerant or oppressive.’18

Nick Ralph at Sheffield Social Services Department is quoted as describing the problem as ‘a clash between legality and religious ideologies’.  ‘I don’t think it would be right, because of the wider implications, to try to deculturalise an individual, to deliberately undermine her faith or the beliefs of her family.’

The contemporary Hindu thinker, Bhikhu Parekh, now Professor of Political Science at Hull University said recently that:

The situation we are faced with is unique in history.  Cultural pluralism is much deeper than ever, much wider covering many areas of life: Rome was in some sense multicultural and so was Greece: but there was a broad agreement over some things, that religion was important, that moral life should be lived in a certain way.  Today, there are deep differences about everything.

Before, minority cultures quietly operated on the margins of society or got assimilated.  Today they demand recognition.

And it occurs against a background of three centuries of the nation state which tried to homogenise culture.  The old sensibilities don’t seem to work any more.’

Some seek solutions in international law. Yet within a utilitarian rights context, this too is fraut with inner contradicitons.  The principle of pluralism for example is at odds with the principle of equality of the sexes, both enshrined in separate human rights Protocols.  Article 2 of Protocol 1 of the European Convention on Human Rights for example states that in the exercise of any functions which the State assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.19  This is the principle of pluralism and it is an extension of the right to freedom of religious belief and practise.20
Yet the rights of parents are in conflict with the principle of equality of opportunity enshrined in the 1991 UN Convention on the Rights of the Child since some aspects of religious observance actually limit the development of the child.  Carolyn Hamilton concludes, momentously: ‘The state does not have any criteria for balancing these two principles.’

There are further complications.  Although some Muslims do seek redress for their grievances in international law, Islam in principle does not assign to such law any binding authority. Professor Seyyed Hossein Nasr of George Washington University, the famous Persian Sufi scholar who recently inaugurated the new Chair in Islamics at London University in front of among others the Bishop of London, rejects the Western idea of universalism as being no longer based on a religious ideal: ‘I don’t believe in the global village.  It was foisted on the Islamic world.’21

And Isma’il Al Faruqi puts it succinctly:

Over a billion humans in the world today are Muslims.  As Muslims, they believe in human rights.  But their bill of human rights is not one composed by a committee of scholars or leaders, resolved and promulgated by a government, a parliament, or a representative assembly.  What human beings compose can only be tentative; and what they resolve can only be temporary.  With their partial knowledge and passing interests, humans are known always to contend with one another, to agree and disagree, and to keep on changing.  Human rights cannot be subject to such vicissitudes.  Hence, Muslims believe in a bill of human rights which is eternal, whose author is Allah.22

The Dutch scholar Jan Hjärpe makes the point that while the most integristic groups are eager to use the term Human Rights and to incorporate it in their own very different cognitive universes, as Faruqi demonstrates, there is nonetheless no real consensus, either within Muslim societies or indeed, in the world at large, as to what Human Rights are or mean - and without divine sanction, what actually guarantees them.

Hjärpe, in an examination of the constitutions of Muslim countries that have signed up to the UN Charter, and of the proposed declaration on ‘Human Rights’ emerging from the 14th Islamic Conference of Foreign Ministers in 1983 in Dhaka, and known as the Dhaka Declaration, shows that Muslim debate on the subject is essentially apologetic; the Sharia’h because deemed from coming from God, is regarded as the universal guarantor of rights.  Hjarpe concludes that premisses couched in western terminology actually mean very different things.  On freedom of religion, for example:

Everyone shall have the right to follow the religion of Allah and no one shall be compelled to change his religion to another or to atheism.

Freedom extends only so far as a freedom to follow - and never exit - Islam.
Hjarpe comments:  ‘The conflict is not between ‘Islam’ and the ‘West’, but between different attitudes toward the function of ‘religion’ in society.’23

If we cannot agree whence the law’s authority derives, it follows that we cannot agree as to the law’s purpose - or its sanctions.

 

3 Some Twentieth Century Writers on the Religion and Law

According to Phil Harris (1980), the law consists of rules that are normative, and invite official retaliation if broken.  Ronald Dworkin (1985) defines the law somewhat loftily as ‘rule by a coherent and uncompromised vision of fairness and justice’.  Although most writers posit force, authorised by the sovereign (individual or body) as the ultimate test of whether law is law, most also agree that law falls into abeyance if large numbers of people generally do not observe it.  Law therefore cannot avoid cognizance of social custom and values.

Harold Berman has written:  ‘In virtually all societies the established legal processes of allocating rights and duties, resolving conflicts, and creating channels of cooperation are inevitably connected with the community’s sense of, and commitment to, ultimate values and purposes.’24 This is the religious dimension of law, connecting a society’s legal order to its belief in a reality beyond itself - a reality whose existence is denied in modern law, with predictable results.
Lord Denning, then Master of the Rolls, wrote ominously just nine years ago:  ‘Religion concerns the spirit in man whereby he is able to recognise what is truth and what is justice: whereas law is only the application, however imperfectly, of truth and justice in our everyday affairs.  If religion perishes in the land, truth and justice will also.’

He wrote a small book The Influence of Religion on Law  listing the ways Christian truth lay behind much of the development of English law, not least of which was the notion that justice was the name you gave to the application of the injuction ‘Love Thy Neighbour’ to social institutions.

Denning does not consider it necessary to show here how the divorce of human law from ‘divine law’ was essential in any system that was to allow debate about the law’s parameters. Terrible inquisitorial sanctions in the case of any whiff of theological heterodoxy wrought their own eventual disqualification.  Denning’s ‘certitude’ could seem to imply a reimposition of doctrinal purity on all aspiring lawyers.

Yet ‘the secular’ is a religious category, and theologically bears witness to God’s grace in allowing  his creation its freedom.  Secularization theorists such as David Martin and José Casanova have shown how the development of ‘secularism’ only arose in Christian cultures, and ‘the secular’ itself - from saeculum - existed originally only in terms of ‘the religious’ as in ‘sacred and profane’ - a ‘truly meaningless differentiation’ which centuries ago ago fell out of use.25

While Christian thinkers contributed to the high view of freedom largely by seeking to release mankind from the unChristlike tyranny of religious dogma, they did not imply a release from faith as a valid paradigm - which now confronts us.  Any legal system therefore which does not acknowledge religious and secular interdependence is in for trouble

Nathaniel Micklem said the same in 1952: Looking at what had happened in communist Russia and in Nazi Germany, he wrote:  ‘The rejection of religion heralds the end of the reign of law.’26  Law became a fickle instrument of the State once spiritual doctrines of human personality were jettisoned, just as it had become a fickle instrument of the Church when its earthly power grew too great. 
John Lloyd, another Law Lord and a relativist, writing in 1964 his The Idea of Law1, a standard textbook on the subject, saw the flaw in the modern positivist solution, but was complacent about what might replace it:

. . . the more progressive positivist of the present day recognizes that the law, while entitled to regard itself as an autonomous field of study, has many close and intimate relations with other aspects of human activity.  For law cannot be considered or rightly understood apart from the aims which it seeks to achieve, even though these aims may be only transient and variable and not absolute sub specie aeternitatis.

Consequently, the lawyer needs to come to grips with the value system inherent in his society and to wrestle  with the many problems which arise in developing the legal system as machinery for achieving justice within the framework of the value system (p. 115).

To Lloyd, aims and value systems and the means of discerning them are extraordinarly vague.  In a system such as the common law the principles expressing the inherent values of English society are not contained in a specific legal document but are to be distilled out of a long historical tradition manifested in certain institutions, constitutional principles and conventions, and decisions of the courts, which have been treated as embodying in a special degree the spirit or values of the English way of life.

He goes on: ’Educated in this tradition, those whose function it is to develop and apply the law can generally be assumed to be cognizant of the spirit of the community expressed in these various forms.  In this way the built-in values of the system are generally adhered to and developed.‘

Such an approach may serve for a country with a long tradition of ordered government and with a fairly homogeneous population which is broadly in accord as to the essential values which embody the spirit of the community.  Less integrated or more recently established states may require something more explicit than the rather haphazard repertory of law and tradition which has served  England reasonably well up till now.

Just thirty-five years on, and with a more disparate, less integrated population than has ever inhabited these islands, this all looks pitifully thin.  The ‘something more explicit’ it requires is, apparently, anybody’s - urgent - guess.


1  Cotterell, R  1989 The Politics of Jurisprudence   Chicago.   p. 6

2  Modood, T & Werbner, P (Eds.)  The Politics of Multiculturalism in the New Europe:Racism, Identity and Community 1997  London & New York: Zed Books.  Passim

3  This paper forms the basis of Chapter Six of my thesis on secularization.  The thesis is essentially concerned with government policy and religion.  Since concessions were formerly made to minorities on the basis of race, I am assumiing it may be possible to discern the de-secularization of English institutions - or at least, its operating  principles - since these minorities actually define themselves on the basis of religion.  I am basing my search on an empirical study of the Inner Cities Religious Council, a small executive office within the Department of the Environment, co-funded by the Church and the DOE ‘Regeneration Budget’ - which with its overtly ‘multi-faith’ stance takes its lead from legal principles of neutrality.

4  Menski, W  1996  Unpublished paper Law, Religion and South Asians’for London Symposium on ‘A Comparative Study of the South Asian Diaspora Religious Experience in Britain, Canada and the USA’. Werner Menski has researched Asian laws in Britain in Ethnicity,Identity, Migration: The South Asias Context Toronto: University of tornot pp. 238-268

5  Badawi, Z 1995  ‘Muslim justice in a secular state.’  In King, M (ed.) God’s Law Versus State Llaw: The construction of an Islamic identity in Western Europe. London: Grey Seal, pp. 73-80.

6   Vol 17, No 1 April 1997 p. 107  Carroll shows intriguingly how Muslim women actually fare worse in England than in Pakistan, which enshines a 90-day cooling off period in law between the reciting of the talaq and its validity in law.

7 p. 105

8  Quoted in Bradney, 1993 Religions, Rights and Laws, p. 4

9  See Mandla v. Dowell Lee, first at the Court of Appeal, reported at [1982] 3 All ER 1108, then at the House of Lords, reported as [1983] 1 All ER 1062, cited by Menski, ibid.

10  Menski, ibid.

11  Bradney 1993 p. 6.

12 Muslim lobby groups recognise this:  a campaign to get a question of religious affiliation in the 2001 Census is part of a drive to ‘put Muslims on the demographic map’.  Q News 15 November 1996. Research carried out at Warwick University for the C of E on the church as broker found that a display of numerical strength  was a factor Muslims took into account in considering participating in civic religious event. in which they were otherwise not interested..  (ibid p 39) From Conclusion to ‘The Church of england and Other Faiths in a Multi-faith Society’  by James Beckford and Sophie Gilliat .Warwick Working Paper in Sociology 1996. p41

13  Doe, N  1994  ‘The Legal Position of religious minorities in the United Kingdom’.  In Europea Consortium for Church-State Research:  The legal status of religious minorities in the countries of the European Union.  Thessaloniki and Milan: Sakkolas and Giuffre Editore, pp. 299-319

14  Law and the Laws: Being the Marginal Comments of a Theologian 1952, London: Sweet & Maxwell

15 De legibus 2.4.10, quoted Kelly, J.M. 1993 Oxford: Clarendon,  p. 58.

16  A Verdross, Abendlandische Rehtsphilosophie 1958, Vienna, p. 98 quoted Kelly p. 223.

17

18 Hannana Siddiqui, Southall Black Sisters, quoted in ‘The Vanishing’, above.

19 The UK endtered a reservation t this to ensure that the State was not under an obligation to provide such schools itself  (Hamilton 1995 p. 253)

20 The most up-to-date book on this area is Carolyn Hamilton’s ‘Family Law and Religion’.  She sketches the rise of religious freedom legislation and examines the anomalies that occur where other rights intersect. It has to be said that her grasp of religion is tenuous and her own standpoint is the liberal one, that believes it is possible to maintain a non-aligned standpoint from which to judge religious matters with impartiality. This is the culturally prevalent view and religious people have to grapple with it, as it commands the current debate.

21  11 March 1996

22  ‘Islam and Human Rights’ in Islamic Quarterly, 1983 pp. 12-30

23  ‘The Contemporary Debate in the Muslim World on the Definition of ‘Human Rights’ in ??? pp. 26- 38.

24   See Eliade Encyclopedia of Religion 1987 pp. 463

25  For an excellent discussion of the religious meaning of the word ‘secularization’ see Casanova, J Public Religions in the Modern World Ch. 1.  ‘...in reference to an actual historical process, the term ‘secularization was first used to signify the massive expropriation and appropriation, usually by the state, of monasteries, landholdings, and the mortmain wealth of the church after the Protestant Reformation and the ensuing religious wars.  Since then, secularization has come to designate the ‘passage’, transfer, or relocation of persons, things, functions, meanings, and so forth, from their traditional location in the religious sphere to the secular spheres. p. 13

26 See Ch. 2 ‘Jurisprudence and Theology’ in which he concludes:  ‘There can be no durable reconstitution of the life of Europe except through a revival of reverence for God and reverence for law; the two reerences are most intimately connected, and lawyers and evangelists may be deemed to share a common task and duty.’  p. 21.

1  London: Penguin

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08 Jan 2008

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Downloadable Publications

Christianity or Occult?Ethics in Brief

‘Women have borne the brunt of our failed multi-culturalism’, argues Jenny Taylor in Ethics in Brief Spring 2008 issue

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Christianity or Occult?Christianity or Occult?

As cases of kindoki or ‘child witch’ abuse re-surface in Britain, a new downloadable report brings together material by leading African and English scholars from a recent symposium that throws light on some of the allegations.

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Featured Publications

Crimes of the CommunityCrimes of the Community

A devastating report on the rise of "honour-based" violence against women from immigrant communities in the UK. It is devastating not just because it reveals the complicity of some "community leaders" in killings, attempted murder and beatings, but also because its sources are so authoritative...

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Young, British and MuslimYoung, British and Muslim

'A most important book on British Muslims. It explodes many contemporary stereotypes to reveal a picture which is far more complex than is often supposed. It shines a light onto both new areas of menace and new avenues of hope. Every politician and policy-maker should read it.'
Paul Vallely, The Independent

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Conviction and ConflictConviction and Conflict

Bishop Michael Nazir-Ali sets out fundamental guidelines on the role of religion in society and its relationship to nationalism, ideology and political institutions, and examines Christian-Muslim dialogue with particular relationship to the rise of Arab, Indian and Turkish nationalism.

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Not for Sale CoverNot for Sale

This is a must read for all those seeking to understand the issues surrounding sexual exploitation and abuse in our society today - the human cost of UK prostitution today and the scourge of trafficking for sexual exploitation exposed to our senses as never before.

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