Migration, Diasporas and Legal Systems in Europe

Prakash Shah, Werner Menski

• Publisher: Routledge-Cavendish
• Year: 2020
• eBook ISBN: 9781000158373
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

At a time when issues concerning migration and the formation of diasporic communities have come to be critical for all European legal systems, this volume reflects, discusses and analyzes the questions raised by diasporas who have established themselves in Europe over more than fifty years of immigration and the challenges faced by legal systems in the light of continued migration.

Contributors from a broad range of backgrounds address prominent issues ranging from legal pluralism among minorities, pressures on EU accession states, irregular migration, state control of family reunification and formation in light of human rights laws, challenges for citizenship and nationality laws and the implementation of visa rules and juxtaposed control zones. Besides the EU as a supranational legal order, the book contains discussion of conditions in the United Kingdom, Ireland, France, Spain, Gibraltar, Morocco, Greece, Turkey and Lithuania.This volume accompanies The Challenge of Asylum to Legal Systems and is the second book to emerge from the W.G Hart Legal Workshop held in 2004 at London's Institute for Advanced Legal Studies.

CHAPTER 1
RETHINKING LEGAL THEORY IN THE LIGHT OF SOUTH–NORTH MIGRATION

Werner F. Menski

I contemplated a number of alternative titles for this chapter, all of which seek to convey a message that something is happening to our European legal systems, under our very noses, which lawyers have been too slow to pick up and analyse, partly because to do so seriously questions many of the core assumptions on which existing dominant legal theories and jurisprudence are still based today. Lawyers are still too focused on simplistic positivist assumptions about the central powers of state law and equally optimistic ‘rule of law’ models, though recent writing is beginning to realise that reality is more complex and that, for example global rule of law discourses have remained ‘substantially empty’.¹ Continuing to apply such unsubstantiated idealism, of which we normally tend to accuse ancient non-Western legal traditions such as Hindu law and Islamic law, we prevent ourselves today from fully understanding the new socio-legal developments that result from South–North migration.

Today, the phenomenon of South–North migration constitutes a fairly recent phase of human migration history which had tended to be mainly in the North–South direction for several centuries, and involved the colonial subjugation of almost the whole world by mainly European powers. This process also involved the transplantation of Western laws through a variety of reception methods, voluntary and enforced, all over the world. The result of that process has been a remarkable hybridisation of laws in Asia and Africa. The effect of this process in our minds in Europe, manifested in most of the existing legal writing, has been a smugly self-confident reliance on the perceivably solid evidence of European superiority and legal expansion of ‘our’ systems of thought and methods of dealing with law that we thought would dominate the entire world. Never did we think that the reverse might happen in Europe and North America one day, but we are already confronted with evidence that Asians and Africans tend to reconstruct their legal worlds in diaspora ‘on their own terms’,² not on ours.

Today, many lawyers still assume and dream that ultimately a new world order will emerge in which ‘our’ law would be the dominant, if not the only, force and in which international law (preferably with Anglo-characteristics, of course) will overshadow, if not erase, all national legal peculiarities, merging everything into one global legal order. I venture here into the congested arena of globalisation debates only to mention briefly that, at any rate from a SOAS perspective, globalisation can never truly mean the emergence of a single global legal order dominated by the West.³ At SOAS, we know far too much about the legal systems of Asia and Africa now to be able to sit back and celebrate the continued march of common law across the globe, as my illustrious predecessors in the postcolonial phase of SOAS still saw it. Reception of common law may still take place today, most prominently presently in Eastern Europe, but that is hardly the most exciting part of the world nowadays. What about Asian and African perspectives and the emergence of the Asian century, whether we like this or not?⁴ Elements of common law may be fed into certain legal systems, but the system as a whole inevitably retains its peculiar characteristics.⁵ Despite hectic current activities in teaching the Chinese about common law principles, the celebration of European domination in the global legal field is coming to an end and European influence these days is waning all over the world. Even if we do not want to know or accept this, we have a professional obligation to address such issues as academic lawyers.

THE CHALLENGE OF THE NEW LEGAL SCENARIO

Mathias Rohe and Roger Ballard write in this volume that the presence of Asians and Africans in Europe and North America has brought with it new phenomena of hybridisation that lawyers need to be aware of to make sense of the world around us and to keep control, if that is what law and lawyers seek to achieve at the end of the day. Within the socio-legal sphere, Roger Ballard’s ‘skilled cultural navigation’ and the apparent ease with which Asian and African migrants reconstruct their socio-legal environment here ‘on their own terms’, are no longer new phenomena.⁶ But are we as lawyers willing to take account of this, or do we not rather too simply marginalise such evidence as ‘anthropology’, as though that was a viral disease from which we have to protect our field? Do we not in fact know, as educated lawyers, that law can be — and is — much more than state-made rules? Why does it remain so easy for us to dismiss evidence of ethnic minority laws in our midst as ‘custom’, as Poulter did so prominently in his well-known book on English Law and Ethnic Minority Customs? Why has it become equally simple to argue against recognition of ethnic minority laws and concepts on the basis that they infringe human rights, as Poulter desperately argued in his last work, Ethnicity, Law and Human Rights. The English Experience?⁷

Mathias Rohe has outlined for us how continental legal systems today, and German constitutional law, in particular, are seeking to cope with pluralising pressures. There is now an emerging literature on this topic which assumes that the legal mechanisms of modern Western legal systems can fully control the pluralising demands of Asian and African people who have become neighbours. But the binding ‘Hausordung’ that a typically continental Constitution claims to be seems unable to handle all of these pluralising pressures. The methods chosen in Continental Europe seem to redraw the boundaries between the official and the unofficial, but they do not solve the problem without wide-ranging pluralising implications for our own legal systems.

We have much evidence of creeping pluralisations wherever we care to look. A few months ago, newsflashes went around the world pointing out that Hindi and Urdu were on the verge of overtaking English as a major world language, and Arabic was catching up fast, let alone Chinese. Even English itself, it was reported and is now documented in the latest edition of the Oxford English Dictionary, is subject to multilingual influences that make you wonder. Angrez for ‘English person’ has become common, and I should feel guilty, because David Pearl and I publicised the hybrid term angrezi shariat for British Muslim Law.⁸ The list is long: filmi, gora for a white person, jungli for those who lack culture (one then wonders who lacks whose culture). I have heard from some German Turkish students that they, in their peer groups, are inventing hybrid Turko-Allemannic lingos that their parents and outsiders do not — and should not — understand; this process is going on all around us. It may not be official and legal, but is a significant indication of change. I wonder when more public debates will start about the subtle meanings of words like ‘law’, qanun and dharma.

We cannot consider in detail how religion impacts on this field, but it is evident that religions and their claims to legal relevance are not a topic that lawyers in any field can ignore any longer.⁹ The Islamic headdress debate is spread all over Western Europe now. Even banking law has had to take account of Muslim prohibitions against riba, ‘excessive interest’, and our high street banks and finance houses are busy developing new methods of dealing with huge sums of money. Muslim law is not only about helpless wives subjected to cruel talaq divorces, or husbands having more than one wife. Today, a lot of legal business is generated by the growing impact of non-Western laws in Europe and North America, but we do not know enough about such laws. Many individuals suffer because English law and other legal systems are unable to handle complex questions of private international law and especially internal conflicts of law, with confidence. There are a lot of incorrect presumptions in this field, but also some examples of wonderfully skilful handling of complex issues.

I was pleased to find myself in good company when it comes to making cautious noises about future legal developments in Europe as a result of migration. The Migration News Sheet for February 2004 contains on pages one and two a report of an important speech by the UN Secretary General,¹⁰ criticising the EU’s attitudes and policies towards immigrants and refugees. Kofi Annan is, as far as I know, not a comparative lawyer, but his global job has evidently taught him something about the realities of pluralising globalisation. Apart from critical comments about the asylum system and human rights violations in the name of immigration control, which seem to have upset a lot of important people, the report also contained the following peripheral comment on his speech (at p 2):

Mr. Annan recognised that immigration could give rise to problems and difficulties, particularly those concerning the integration of people with diverse cultures, religions and languages. ‘Integration is a two-way street’, he reminded participants. ‘Immigrants must adjust to their new societies and societies must adjust too’, he added, before making an appeal to all States which have not done so (including all EU States) to sign and ratify the UN Convention on Migrant Workers.

Significantly, such critical issues as integration of migrants are still addressed mainly as social policy matters and not explicitly as legal problems. Law, somehow, stands apart and is perceived as separate from other social sciences. I found recently that political geographers and other social scientists have become quite involved in such locally-focused debates in the context of national security concerns. And there is of course a huge social science literature on race, immigration and asylum in which lawyers, sadly, are only marginal observers. I refer here particularly to a recent excellent overview article,¹¹ which concludes, at p 284, that the current shift from asylum towards ‘useful’ worker migrants creates new dangers for race relations:

This is because the logic that underpins current legislation on migration and on race relations in Britain assumes that good race relations depend on ever more strict immigration controls. What the new legislation also signals, however, is that the language of New Labour is moving towards a political agenda on identity and social cohesion that is likely to have a major impact on the position of established minority communities and their everyday experiences of British society.

Asking for a sustained critical analysis, the authors observe that New Labour appears to be ‘stumbling along a path that has been shaped by fears and preoccupations that have much in common with both previous Labour and conservative administrations’¹² and they conclude:

Indeed, New Labour’s policies in the area of immigration and asylum seem likely to lead to new patterns of marginalization and exclusion for sizeable groups in British society.¹³

I am citing this here to demonstrate that even the best of our social science colleagues remain unable to make sense of the legal elements in this complex field and their ramifications. Party politics all too often distract from deep legal analysis. Only we as lawyers, using legal methodologies, will be able to throw further light on the difficulties in this context that we anticipate and fear. But the existing literature clearly does not go far enough. It is not that lawyers have not addressed such issues, but what exists in published form so far is spread over many jurisdictions and languages and does not provide a sufficiently theoretical overview to make sense of what is happening to our Northern legal systems.¹⁴ We need more courage and new kinds of expertise to explore these emerging questions further.

Unfortunately, it seems that legal science as a whole, and this goes not only for Britain, finds it particularly difficult ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Preface
• Foreword
• Introduction: Migration, Diasporas and Legal Systems in Europe Prakash Shah and Werner F. Menski
• 1 Rethinking Legal Theory in the Light of South–North Migration
• 2 Ethnic Diversity and the Delivery of Justice: The Challenge of Plurality
• 3 The Migration and Settlement of Muslims: The Challenges for European Legal Systems
• 4 Alternative Dispute Resolution in a Muslim Community: The Shia Imami Ismaili Conciliation and Arbitration Boards
• 5 New Judicial Developments in EU Citizenship: Solidarity, Security, and Second-class Citizens
• 6 Discriminatory Denationalisations Based on Ethnic Origin: The Dark Legacy of Ex Art 19 of the Greek Nationality Code
• 7 The Irish Citizenship Referendum 2004: A Solution in Search of a Problem?
• 8 Changing Polities and Electoral Rights: Lithuania’s Accession to the EU
• 9 Hidden Purpose: UK Ethnic Minority International Marriages and the Immigration Rules
• 10 Transnational Mothering, National Immigration Policy and the European Court of Human Rights
• 11 Entry and Residence of Aliens in the Case Law of the European Court of Human Rights
• 12 Immigration Policy of the European Union: The Challenges Posed by a Fifth Enlargement
• 13 An Unhappy Triangle? Labour Migration in Spain and Gibraltar from Morocco
• 14 Impact of the EU Membership Process on the Development of the Turkish Immigration Law Regime
• 15 EU Law and Policy on Irregular Migration: The Need for Convergence on the Admission of Third-country Nationals for Employment
• 16 Monitoring the UK Entry Clearance System
• 17 Arriving Before you Depart: Law and Fiction in Juxtaposed Control Zones
• 18 Property Law Aspects of Refugee and IDP Returns: Case Studies of Georgia and Kosovo
• 19 Selling the New Europe: Land Law Reform and Migration Pressures
• Index