Religion and Legal Pluralism

Russell Sandberg

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317068013
• Edition: 1
• Topic: Theology & Religion
• Subtopic: Religious Essays

In recent years, there have been a number of concerns about the recognition of religious laws and the existence of religious courts and tribunals. There has also been the growing literature on legal pluralism which seeks to understand how more than one legal system can and should exist within one social space. However, whilst a number of important theoretical works concerning legal pluralism in the context of cultural rights have been published, little has been published specifically on religion. Religion and Legal Pluralism explores the extent to which religious laws are already recognised by the state and the extent to which religious legal systems, such as Sharia law, should be accommodated.

Chapter 1
The Impossible Compromise

Russell Sandberg*

The Performance of a Lifetime

I do not know who I am. I change my identity at will. My identity is constructed over time and across place. It fluctuates and is shaped by the experiences I have and the company I keep. It mutates according to the roles I consciously and subconsciously play, the relationships I form and the allegiances I owe. It is always in flux, constantly being created and recreated, negotiated and renegotiated. I do not know who I am.

This notion of the constructive nature of personal identities is not new.¹ The immortal Bard famously observed that: ‘All the world’s a stage and all the men and women merely players’ (Shakespeare, 1598/2009: Act 2, scene 7, 139–40).² It is now accepted that people are constantly constructing (and reconstructing) their identities and performing (and re-performing) those identities in different ways according to differing stimuli and in diverse social situations. It is not a question of being two-faced, but rather of being twenty-faced; constantly adapting and creating our identity as we go about our day-to-day life. The philosopher Charles Taylor has discussed how identity is ‘negotiated through dialogue, partly overt, partly internal, with others’ (Taylor, 1991: 47; 1994: 25). For Taylor, the ‘modern preoccupation with identity and recognition’ became inevitable given ‘the collapse of social hierarchies’ (1991: 46). It was the result of the general move from a society largely based on ascribed status to one largely based on achieved status.³ Taylor wrote that, while previously ‘what we would now call a person’s identity was largely fixed by his or her social position’ (1991: 47), we now live in an ‘age of authenticity’ (2007: 473) in which ‘each of us has his or her own way of realizing one’s own humanity’ and it is considered to be ‘important to find out and live out one’s own [life], as against surrendering to conformity with a model imposed from outside, by society, or the previous generation, or religious or political authority’ (2002: 83). This has meant that ‘self-orientation seems to have become a mass phenomenon’ (2007: 473).

It is the pervasiveness of self-orientation that is new.⁴ As discussed elsewhere (Sandberg, 2014: 161), the increased focus on personal identities is part of the ‘subjective turn’ which has occurred in Western societies following the Second World War. The ‘subjective turn’ refers to the way in which the ‘subjectivities of each individual became a, if not the, unique source of significance, meaning and authority’ (Heelas and Woodhead 2005: 3–4). For Heelas and Woodhead, ‘the subjective turn has become the defining cultural development of modern western culture’, denoting a turn away from ‘life lived in terms of external or “objective” roles, duties and obligations, and a turn towards life lived by reference to one’s subjective experiences’ (2005: 2). As Giddens (1991: 32) points out, this has resulted in a new focus on self-identity whereby ‘the self becomes a reflexive project’.⁵ This new focus was spurred on by the social changes which occurred in the sixties: the ‘death of deference’ (Sandberg, 2014: 167; Carpenter, 2000: 238). However, it is important to note that the ‘subjective turn’ does not necessarily imply an individualism characterised by ‘an inevitable descent into selfishness and self-absorption’ (Aldridge, 2013: 188; Heelas and Woodhead, 2005: 11).⁶ Constructing identities is rarely a solitary experience. Moreover, emphasising the role played by human agency does not deny the ways in which individuals are also shaped by the societies in which they live. A distinction between nature and nurture does not need to be made; it is more complex than that. As the novelist Neil Gaiman (2004: 346–7) has observed, this means that people are both distinctive and unoriginal:

Lives are snowflakes – unique in detail, forming patterns we have seen before, but as like one another as peas in a pod (and have you ever looked at peas in a pod? I mean, really looked at them? There’s not a chance you’d mistake one for another after a minute’s close inspection).

The constructive nature of personal identities includes religious identities. As a result of the ‘subjective turn’, people draw upon aspects of their religious identities, constantly reconstructing them in various aspects of social life.⁷ As Day (2011: 194) has argued, ‘belief is not pre-formed but a lived, embodied performance’. This is not only the case in relation to religious minorities. Indeed, religious identities are performed not only by those who align themselves to a particular faith or are members of a specific group. Such performances are also carried out by ‘atheists, agnostics, sceptics and the unconcerned’ (to quote the case law of the European Court of Human Rights).⁸ As Day’s empirical work suggests, people may draw upon religious identities to stress family and community bonds. And the beliefs on which they draw may not be those espoused by traditional religions.⁹ As with other forms of identity, religious identities are likely to mutate over time and place, ebbing and flowing in response to internal and external stimuli. This means that, even where a person identifies with a particular religious group, their beliefs are likely to be personal to them to some extent, with the interpretation or emphasis differing between that person and other members of their group.

This was recognised by Lord Nicholls in Williamson,¹⁰ in which his Lordship stated that: ‘Freedom of religion protects the subjective belief of an individual’, recognising that an individual’s beliefs would not be fixed and static but rather that the ‘beliefs of every individual are prone to change over his lifetime’. Although it is important not to undermine the extent to which religious identities can often be ascribed and be shaped by the environment in which the individual lives, the subjectivity of religious beliefs has been described as the factor that distinguishes religion or belief from the other protected characteristics under discrimination law (such as sex, race, age and sexual orientation).¹¹ This has been reflected in the rise in legislation and litigation concerning religious rights in recent year. This ‘juridification of religion’ (Sandberg, 2011a: chapter 9; 2014: chapter 1) has led to religious freedom being seen as an individual right, actionable in courts of law. This has led to an increased focus upon religious identities. As Eisenberg (2009: 2) has noted, one of the main reasons for the general increased focus on questions of identity has been the ‘greater awareness of the role that identity plays in controversies in Western countries concerning the accommodation of Muslim practices, such as religious arbitration and veiling’.

However, paradoxically, while the protection of religion as a subjective right has underpinned many of the new religion laws, legal actors have paid little attention to the nature of identities in resolving the disputes that have arisen. In particular, courts and tribunals have been slow to recognise that religious beliefs may differ amongst co-religionists. This has meant that those who assert their religious rights have often been required to choose between adherence to their faith and the rights that they would normally enjoy by virtue of their citizenship. This is most clear in the UK case law concerning religious dress and symbols following the case of Begum.¹² For instance, in Playfoot¹³ the High Court held that a Christian schoolgirl did not have the right to wear a ‘purity ring’ at school as a sign of her sexual restraint since this was not obligatory under Christianity and she could have expressed her belief in other ways such as by contributing to personal and social health education classes on the topic or by transferring to another school.¹⁴

As I have argued elsewhere (Sandberg, 2014: 196), this approach is unprincipled.¹⁵ The courts are deeming themselves capable of determining what is an appropriate manifestation of religion, and are saying that there is no breach of a person’s religious rights where that person can choose to manifest their religion elsewhere, usually outside the public sphere. The reasoning of the judiciary rests upon a ‘binary’ understanding of ‘either your citizenship rights or your religion’ which does not allow the court to consider fully on the merits of the case. As Eisenberg (2009: 71) observes, rights-based approaches typically exacerbate ‘the perception that claims are incommensurable and therefore gives rise to the risk that important values will be dismissed as minor interests or mere preferences’. She notes that this will often mean that the situation is ‘reduced to stark and simplistic dilemmas’ whereby ‘the normative significance of the losing claim is thereby diminished’. The claimant is left with an impossible compromise: they either must leave their religious identity at the door of the workplace or school or they have to go elsewhere to a workplace or school which accommodates their religious needs. The ‘either/or’ approach results in a stalemate whereby compromises, whether pragmatic or principled, cannot be made. The result is that differences are entrenched and there are clear winners and losers.

This ‘binary’ approach is underpinned by the failure to accept that believers will owe allegiances both to their religion and to the ‘secular’ world (together with an assumption that a neat dividing line can be drawn between the two). It fails to recognise how people themselves will decide what their beliefs are and how to manifest them. It does not appreciate that religious beliefs will differ between co-religionists and that a direct, causal link from creedal assent to behaviour cannot be assumed. These failings can also be seen in the hysterical responses to the continued existence of religious courts and tribunals, following the 2008 lecture by the then Archbishop of Canterbury, Rowan Williams.¹⁶ The media reaction was invariably framed in ‘binary’ terms: it was a question of either becoming an Islamic State or prohibiting all forms of religious tribunals.¹⁷ These knee-jerk reactions miss the point by presenting simply an ‘all or nothing’ option. That is not the question. The question is in what situations should religious norms be upheld under English law giving proper respect not only to the autonomy of the religious group but also, crucially, to the agency of those within religious groups. The simplistic ‘all or nothing’ approach that is frequently taken ignores the fact that religious legal systems and their norms already exist. Instead of creating a dialogue with those who seek to use such systems, it is assumed that all religious legal systems are beyond the pale. This has the effect of distancing and antagonising those people, frustrating any chance of dialogue and compromise. Those who sought to use such tribunals are treated as if they are a homogenous group and are regarded as the ‘other’. And they are given the ‘binary’ ultimatum of ‘either your citizenship rights or your religion’.

The Fact of ‘Joint Governance’

These arguments are helpfully elucidated in the work of Ayelet Shachar, particularly her monograph Multicultural Jurisdictions (Shachar, 2001), elements of which were cited by the then Archbishop of Canterbury in his lecture (Williams, 2008). Shachar argued that, although some secularists object to the very existence of religious tribunals, for most critics the ‘problem’ with religious tribunals is what she refers to as the ‘paradox of multicultural vulnerability’ (Shachar, 2001: 3). This refers to the fear that some users of religious tribunals are denied the citizenship rights that they would normally enjoy under ‘secular’ law.¹⁸ This might occur, for example, where the religious norms or law differ from that of the State as regards gender roles or sexual orientation.¹⁹ While it is important not to overplay the ‘paradox of multicultural vulnerability’,²⁰ Shachar’s identification of the paradox requires us to attempt a more ambitious and realistic solution than simply concluding that we should abandon any attempt to enhance the autonomy of minority cultures.²¹ It requires us to focus on the agency of those who use religious tribunals and to regard them as ‘citizen-insiders’.²² Shachar’s work urges us to recognise that these citizen-insiders are b...