W10 – SOCIAL ORDERING
BEYOND FORMAL LAW AND
LEGAL PLURALISM
Case study: religious norms in the secular state
Nicola Lacey
CENTRAL QUESTIONS
1. What other normative systems produce social ordering and how do they
relate to law?
2. What is the role of religious norms in a secular state?
3. How has the English legal system accommodated religious norms?
4. Limits to legal accommodation?
LECTURE OUTLINE
1. Background: state law in the context of other normative systems
2. Case study: the religious law versus secular state law
3. The response of English legal systems in:
a. Arbitration,
b. Statutes,
c. Case law.
4. Normative issues: the limits of legal accommodation.
WHAT IS LAW? (first 4 pics are state law)
(next 4: informal and supplementary normative systems/systems of
social ordering)
, CASE STUDY: RELIGIOUS NORMS IN THE SECULAR STATE
All social spaces are densely populated with multiple systems of rules,
conventions, norms and disciplines.
Sometimes, these rules apply to/regulate different spheres of behaviour,
but sometimes they overlap with each other or with state law.
WHAT HAPPENS WHEN THEY CONFLICT?
SEPARATING STATE LAW AND RELIGIOUS LAW
JOHN AUSTIN’S ‘The Providence of Jurisprudence Determined’ is an
example of a rule-centred theory of law. Law is a sovereign command
backed by the threat of sanctions. Positive law is distinguished from other
phenomena, including religious laws.
The distinction between religious laws and positive laws is still important
today.
Secular legal system is central to liberal democracies.
Secularism is the idea that the state is separate from religious institutions
and state law is supreme.
Secularism has been endorsed with renewed vigour by British politicians.
CATALYST FOR DEBATE: AofC Dr ROWAN WILLIAMS in the Inner Temple,
2008; he called for greater tolerance of religion within the English legal
system.
Review of the application of Sharia Law launched 2016.
Is Sharia law being misused, or applied in a way making it compatible with
the rule of law?
Sharia law operating in a “discriminatory and unacceptable way”?
Panel to look at divorce, domestic violence and custody cases.
Review published in February 2018:
1. “While Muslim societies are diverse and vary in their lifestyles and
attitudes, the rise of extremism is seen as evidence of a lack of
social and political integration within many parts of the UK. The
observance of sharia loosely translated as Islamic law, but which
incorporates various aspects of Muslim life, has also been regarded
by some as keeping many Muslims isolated, entrenched and with
little social and psychological stake in wider British citizenship and
civic life” (Mona Siddiqui, Chair of the review)
Three recommendations:
1. Changing marriage and divorce laws – Muslim couples should be
required to civilly register their marriage before or at the same time
as religious ceremony.
2. Launching awareness campaign.
3. Regulation through a self-governing body.
Home Office rejected recommendation to establish a self-regulatory body.
“We will not be taking forward the review’s recommendation to regulate
Sharia Councils. Sharia law has no jurisdiction in the UK and we would not
facilitate or endorse regulation, which could present councils as an
alternative to UK laws”.
KEY QUESTION: “How widely shared is the gov’t’s position on the relative
importance of Sharia law versus English secular law?
BEYOND FORMAL LAW AND
LEGAL PLURALISM
Case study: religious norms in the secular state
Nicola Lacey
CENTRAL QUESTIONS
1. What other normative systems produce social ordering and how do they
relate to law?
2. What is the role of religious norms in a secular state?
3. How has the English legal system accommodated religious norms?
4. Limits to legal accommodation?
LECTURE OUTLINE
1. Background: state law in the context of other normative systems
2. Case study: the religious law versus secular state law
3. The response of English legal systems in:
a. Arbitration,
b. Statutes,
c. Case law.
4. Normative issues: the limits of legal accommodation.
WHAT IS LAW? (first 4 pics are state law)
(next 4: informal and supplementary normative systems/systems of
social ordering)
, CASE STUDY: RELIGIOUS NORMS IN THE SECULAR STATE
All social spaces are densely populated with multiple systems of rules,
conventions, norms and disciplines.
Sometimes, these rules apply to/regulate different spheres of behaviour,
but sometimes they overlap with each other or with state law.
WHAT HAPPENS WHEN THEY CONFLICT?
SEPARATING STATE LAW AND RELIGIOUS LAW
JOHN AUSTIN’S ‘The Providence of Jurisprudence Determined’ is an
example of a rule-centred theory of law. Law is a sovereign command
backed by the threat of sanctions. Positive law is distinguished from other
phenomena, including religious laws.
The distinction between religious laws and positive laws is still important
today.
Secular legal system is central to liberal democracies.
Secularism is the idea that the state is separate from religious institutions
and state law is supreme.
Secularism has been endorsed with renewed vigour by British politicians.
CATALYST FOR DEBATE: AofC Dr ROWAN WILLIAMS in the Inner Temple,
2008; he called for greater tolerance of religion within the English legal
system.
Review of the application of Sharia Law launched 2016.
Is Sharia law being misused, or applied in a way making it compatible with
the rule of law?
Sharia law operating in a “discriminatory and unacceptable way”?
Panel to look at divorce, domestic violence and custody cases.
Review published in February 2018:
1. “While Muslim societies are diverse and vary in their lifestyles and
attitudes, the rise of extremism is seen as evidence of a lack of
social and political integration within many parts of the UK. The
observance of sharia loosely translated as Islamic law, but which
incorporates various aspects of Muslim life, has also been regarded
by some as keeping many Muslims isolated, entrenched and with
little social and psychological stake in wider British citizenship and
civic life” (Mona Siddiqui, Chair of the review)
Three recommendations:
1. Changing marriage and divorce laws – Muslim couples should be
required to civilly register their marriage before or at the same time
as religious ceremony.
2. Launching awareness campaign.
3. Regulation through a self-governing body.
Home Office rejected recommendation to establish a self-regulatory body.
“We will not be taking forward the review’s recommendation to regulate
Sharia Councils. Sharia law has no jurisdiction in the UK and we would not
facilitate or endorse regulation, which could present councils as an
alternative to UK laws”.
KEY QUESTION: “How widely shared is the gov’t’s position on the relative
importance of Sharia law versus English secular law?
