Dilemmas of the Law in a Multicultural Society

[part 2] by Jenny Taylor

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.[1] 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.[2]

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 industry[3] . 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.[4]

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 .[5]

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 ... [6]

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.[7]

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.[8] 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.’ [9]

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 Times carried 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.’[10]

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.[11] This is the principle of pluralism and it is an extension of the right to freedom of religious belief and practise.[12]

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.’[13]

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.[14]

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.’[15]

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.