Social Ordering beyond Formal Law: Legal pluralism –
Case study: religious norms in the secular state
In this class we will be looking at a contentious issue which has received a
lot of media attention in recent years throughout Europe, examining how
secular European states should manage the existence of non-state
religious norms practiced widely in minority communities, such as Shari’a
or Islamic law, and Jewish law. This debate, which is called the debate on
‘legal accommodation’, is seen as contentious because it seems to
demonstrate a conflict between a fundamental concept of law (one law for
all and equality before the law) and a fundamental human right (the right
to religious freedom). Students are asked to reflect on the various
approaches to the management of religious freedom in the secular State
by reference to case law and academic commentary. You are asked to
consider the issues arising from the Ghai case (open air funeral pyres) and
to form a view about what you think should happen when a religious
practice conflicts with public interests as defined by the state. You will
also be encouraged to think about the broader sense in which formal legal
systems exist in a social context densely populated by other regulatory
and normative systems: not merely moral or religious orders, but the rules
and conventions of a range of institutions including schools, families and
workplaces.
READINGS:
Please read the decisions of R (on the application of Ghai) v Newcastle City Council
(Ramgharia Gurdwara, Hitchin and another intervening) in the Court of Appeal: [2010]
EWCA Civ 59 and Queens Bench Division: [2009] EWHC 978- [2010] 3 All ER 380. If using
Westlaw you can locate the QBD report through the appellate history section of the Court of
Appeal decision.
An-Na’Im, Abdullahi, (2010) ‘The Compatibility Dialectic’ Modern Law Review, 73(1): 1-29.
Available at: https://www-jstor-org.gate3.library.lse.ac.uk/stable/27755231?
seq=1#metadata_info_tab_contents
R V NEWCASTLE CITY COUNCIL (CA EWCA CIV 59)
Ghai (Hindu man) requested land to be dedicated for traditional funeral pyres.
Newcastle City Council rejected this as they anticipated a building would be used for
cremations which is regulated by Cremation Act 1902.
Ghai argued it was imperative for his religious belief to be cremated on an open
funeral pyre under article 9 of the ECHR (right to religious freedom). However note
that section 2 must be considered; i.e. public health… the cremation is PUBLIC.
Allowed in democratic society?
HC: there is an interference with A9.1
BUT found that A9.2 was JUSTIFIED and NECESSARY.
Case study: religious norms in the secular state
In this class we will be looking at a contentious issue which has received a
lot of media attention in recent years throughout Europe, examining how
secular European states should manage the existence of non-state
religious norms practiced widely in minority communities, such as Shari’a
or Islamic law, and Jewish law. This debate, which is called the debate on
‘legal accommodation’, is seen as contentious because it seems to
demonstrate a conflict between a fundamental concept of law (one law for
all and equality before the law) and a fundamental human right (the right
to religious freedom). Students are asked to reflect on the various
approaches to the management of religious freedom in the secular State
by reference to case law and academic commentary. You are asked to
consider the issues arising from the Ghai case (open air funeral pyres) and
to form a view about what you think should happen when a religious
practice conflicts with public interests as defined by the state. You will
also be encouraged to think about the broader sense in which formal legal
systems exist in a social context densely populated by other regulatory
and normative systems: not merely moral or religious orders, but the rules
and conventions of a range of institutions including schools, families and
workplaces.
READINGS:
Please read the decisions of R (on the application of Ghai) v Newcastle City Council
(Ramgharia Gurdwara, Hitchin and another intervening) in the Court of Appeal: [2010]
EWCA Civ 59 and Queens Bench Division: [2009] EWHC 978- [2010] 3 All ER 380. If using
Westlaw you can locate the QBD report through the appellate history section of the Court of
Appeal decision.
An-Na’Im, Abdullahi, (2010) ‘The Compatibility Dialectic’ Modern Law Review, 73(1): 1-29.
Available at: https://www-jstor-org.gate3.library.lse.ac.uk/stable/27755231?
seq=1#metadata_info_tab_contents
R V NEWCASTLE CITY COUNCIL (CA EWCA CIV 59)
Ghai (Hindu man) requested land to be dedicated for traditional funeral pyres.
Newcastle City Council rejected this as they anticipated a building would be used for
cremations which is regulated by Cremation Act 1902.
Ghai argued it was imperative for his religious belief to be cremated on an open
funeral pyre under article 9 of the ECHR (right to religious freedom). However note
that section 2 must be considered; i.e. public health… the cremation is PUBLIC.
Allowed in democratic society?
HC: there is an interference with A9.1
BUT found that A9.2 was JUSTIFIED and NECESSARY.
