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The Topography of Shari’a in the Western Political Landscape
No full textIn February 2008, the Archbishop of Canterbury, Dr Rowan Williams, delivered a public lecture in which he stated that it ‘seem[ed] unavoidable’ that certain aspects of Islamic law (Shari’a) would be recognized and incorporated into British law. The comments provoked outrage from sections of the public who viewed any recognition of Shari’a law in Britain with alarm. In July 2008 Lord Phillips, Lord Chief Justice of England and Wales, weighed into the fray. He praised the Archbishop’s speech and gave qualified support for Shari’a principles to govern certain family and civil disputes.
This chapter is the introduction to a collection of essays written by distinguished and prominent scholars addressing the question of the accommodation of Shari’a within the legal systems of the liberal-democratic West. The matters raised in the two 2008 lectures provide a springboard for discussion, criticism, and debate on both the specific question of religious/cultural accommodation by the law and the wider issues of multiculturalism, equality before the law, and the desirability of parallel jurisdictions for particular faith communities.
Leading scholars from a range of countries and academic disciplines, and representing different political viewpoints and faith traditions, explore the complex issues surrounding the legal recognition of religious faith in a multicultural society.
The volume aims to stimulate further thought on a complex issue, and to open up new pathways for policymakers and civil society institutions grappling with the relationship between Shari’a and Western legal institutions
The Topography of Shari’a in the Western Political Landscape
Full text linkIn February 2008, the Archbishop of Canterbury, Dr Rowan Williams, delivered a public lecture in which he stated that it ‘seem[ed] unavoidable’ that certain aspects of Islamic law (Shari’a) would be recognized and incorporated into British law. The comments provoked outrage from sections of the public who viewed any recognition of Shari’a law in Britain with alarm. In July 2008 Lord Phillips, Lord Chief Justice of England and Wales, weighed into the fray. He praised the Archbishop’s speech and gave qualified support for Shari’a principles to govern certain family and civil disputes.
This chapter is the introduction to a collection of essays written by distinguished and prominent scholars addressing the question of the accommodation of Shari’a within the legal systems of the liberal-democratic West. The matters raised in the two 2008 lectures provide a springboard for discussion, criticism, and debate on both the specific question of religious/cultural accommodation by the law and the wider issues of multiculturalism, equality before the law, and the desirability of parallel jurisdictions for particular faith communities.
Leading scholars from a range of countries and academic disciplines, and representing different political viewpoints and faith traditions, explore the complex issues surrounding the legal recognition of religious faith in a multicultural society.
The volume aims to stimulate further thought on a complex issue, and to open up new pathways for policymakers and civil society institutions grappling with the relationship between Shari’a and Western legal institutions
The sociological dimension of law and religion
No full textIn recent years, interdisciplinary approaches to legal subjects have become increasingly commonplace. At the same time, interest in the interaction between law and religion has blossomed. However, more often than not, law and religion has developed as an area of study within Law Schools. This chapter explores the interdisciplinary movement within law and religion studies with special reference to sociology
The Legal Recognition of Freedom of Conscience as Conscientious Objection: Familiar Problems and New Lessons
Full text linkThis chapter examines the recognition of freedom of conscience in international human law. Through the progressive recognition of the right of conscientious objection to military service, international tribunals have grappled with questions regarding the treatment of beliefs about the sanctity of life and of countervailing societal interests. By contrast, the recognition of conscience of medical personnel relating to healthcare decisions, such as provision of abortion or contraception, is at an earlier stage of development, with a number of important unresolved questions. These concern whether conscience is better protected as a freestanding right or a subset of religion and belief, questions of complicity and the proximity of conscience and action, whether the right is absolute or limited, and whether public or professional duty and conscience are mutually exclusive. The way that they are determined will be a significant marker of the limits of equality, tolerance and dissent in liberal societies
The Case Against Euthanasia and Assisted Suicide
Full text linkThe arguments in favour of legalising voluntary euthanasia and doctor-assisted suicide initially appear convincing. We should, it is said, respect people’s autonomy, euthanasia is a compassionate response to unbearable suffering, it has (supposedly) worked well in those nations that have implemented it, and so on. But on closer analysis, the arguments are far less persuasive. Such a new law is unnecessary given the current legal ability of all but the most incapacitated to take their own life and the availability of palliative care. Any euthanasia law — even one carefully drafted with requisite safeguards — is susceptible to noncompliance and vulnerable to abuse. Moreover, any law would face the ineradicable reality of self-imposed pressure the vulnerable experience to “do the right thing”. This article sets out ten reasons why euthanasia should not be legalised and contends that the case for decriminalising it has not been made out by the proponents of it
Companies as Religious Liberty Claimants
Full text linkCan a company bring a claim alleging that its religious freedom has been violated?
Some recent authority suggests ‘yes’, at least insofar as the company is a one-person company or a closely held corporation. This article examines the subject, the goal being the exploration of a coherent and principled basis for the granting, if at all, of the right for an ordinary business corporation to sue to enforce the right to religious freedom, or to claim an exemption designed for religious persons or organizations. The determining principle governing the legitimacy of a claim ought to be the nature of the act and not the actor
Reservations to Human Rights Treaties and the Diversity Paradigm: Examining Islamic Reservations
No full textThis research is a critique of the universalist theory of international human rights treaty law through an analysis of Islamic reservations to four major human rights treaties i.e., Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child (CRC), International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (CAT).
Based on my analysis of international treaty law on reservations and State practice relating to reservations to human rights treaties, I have argued that universalist claims of human rights treaties are more of an idea than an established norm.
To this effect, I have examined the concept of reservations under international law as contained in the Vienna Convention on the Law of Treaties 1969 (VCLT) and evaluated its applicability to international human rights treaties. In Chapter Two I have contended, firstly, that the VCLT provides a flexible regime for making reservations to treaties and that it does not differentiate between contractual treaties and normative human rights treaties. Secondly, I have argued that the flexible nature of the VCLT regime confirms that international treaty law supports a diversity paradigm which brings together dissimilar consent, particularly in the case of human rights treaties.
In Chapter Three I have scrutinised the theoretical debate on the nature of human rights that centres on whether they are universal, relative or pluralist. I have shown that the natural law theories and other transcendentalist justifications of universality of human rights have no cross-cultural validity. I have also pointed out that a posteriori justifications such as minimalist universality, overlapping consensus and relative universality theories are impractical because they attempt to derive a lowest common denominator which diminishes the efficacy of international human rights regimes. In comparison to such universalist theories, alternative human rights theories espouse more inclusive and cross-culturally legitimate approaches. However, I have submitted that theories of cultural relativism provide inadequate explanations of the pluralist State practice in the area of international human rights treaties. In particular, the thick relativist theories fail to explain the existing level of cultural participation in the international human rights regimes. In practice, States parties from different cultural-legal systems cooperate in international and regional human rights regimes through a diversity paradigm that offers pluralist consent on the various normative standards.
I have shown that the legitimacy of the diversity paradigm is evident from the State practice of making reservations to human rights treaties. My critique of the reservations made by Islamic States to CEDAW, CRC, ICCPR and CAT, identifies on the one hand, the particular normative conflicts between these regimes and Shari`ah, and on the other hand, the connection between the issues raised in these reservations and the domestic laws of the reserving Islamic States. This examination is important for two reasons: firstly, it demonstrates the extent to which the Shari`ah-based reservations are actually legitimate within the cultural-legal system of the reserving States, and secondly, it helps in understanding the level of juridical flexibility that is available in these reservations.
This thesis establishes that the practice of making reservations to international human rights regimes runs counter to theories of ontological universality of human rights. In the case of Shari`ah-based reservations, it reveals that Islamic States are reluctant to forfeit or bargain on certain precepts of Islamic law that are perceived to contradict normative human rights such as absolute freedom of religion and same rights of married spouses. At the same time, it suggests that Islamic States accept the large majority of human rights norms, and make exceptions to only a few select human rights. In addition, the thesis also proposes that the flexible reservations regime of the VCLT provides an effective mechanism for the Islamic States to engage and participate in international human rights treaties, in spite of the reservations.
The principal contribution of this study is that it provides a hermeneutic tool - the diversity paradigm - for understanding the plurality of human rights treaty law. I have established that international treaty law on reservations and State practice of making reservations to human rights treaties confirm the existence and validity of a diversity paradigm in the current human rights discourse. The diversity paradigm approach can play a constructive role in delineating the ontological or philosophical argument for the universality of human rights and the actual State practice of committing to and implementing human rights treaties. With the help of this hermeneutic tool I have established that a flexible, international treaty law based approach to human rights treaties is more effective in the propagation of human rights norms in diverse cultural-legal environments as noted in this case study of the reservations to human rights treaties made by Islamic States
Reservations to Human Rights Treaties and the Diversity Paradigm: Examining Islamic Reservations
Full text linkThis research is a critique of the universalist theory of international human rights treaty law through an analysis of Islamic reservations to four major human rights treaties i.e., Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Convention on the Rights of the Child (CRC), International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (CAT).
Based on my analysis of international treaty law on reservations and State practice relating to reservations to human rights treaties, I have argued that universalist claims of human rights treaties are more of an idea than an established norm.
To this effect, I have examined the concept of reservations under international law as contained in the Vienna Convention on the Law of Treaties 1969 (VCLT) and evaluated its applicability to international human rights treaties. In Chapter Two I have contended, firstly, that the VCLT provides a flexible regime for making reservations to treaties and that it does not differentiate between contractual treaties and normative human rights treaties. Secondly, I have argued that the flexible nature of the VCLT regime confirms that international treaty law supports a diversity paradigm which brings together dissimilar consent, particularly in the case of human rights treaties.
In Chapter Three I have scrutinised the theoretical debate on the nature of human rights that centres on whether they are universal, relative or pluralist. I have shown that the natural law theories and other transcendentalist justifications of universality of human rights have no cross-cultural validity. I have also pointed out that a posteriori justifications such as minimalist universality, overlapping consensus and relative universality theories are impractical because they attempt to derive a lowest common denominator which diminishes the efficacy of international human rights regimes. In comparison to such universalist theories, alternative human rights theories espouse more inclusive and cross-culturally legitimate approaches. However, I have submitted that theories of cultural relativism provide inadequate explanations of the pluralist State practice in the area of international human rights treaties. In particular, the thick relativist theories fail to explain the existing level of cultural participation in the international human rights regimes. In practice, States parties from different cultural-legal systems cooperate in international and regional human rights regimes through a diversity paradigm that offers pluralist consent on the various normative standards.
I have shown that the legitimacy of the diversity paradigm is evident from the State practice of making reservations to human rights treaties. My critique of the reservations made by Islamic States to CEDAW, CRC, ICCPR and CAT, identifies on the one hand, the particular normative conflicts between these regimes and Shari`ah, and on the other hand, the connection between the issues raised in these reservations and the domestic laws of the reserving Islamic States. This examination is important for two reasons: firstly, it demonstrates the extent to which the Shari`ah-based reservations are actually legitimate within the cultural-legal system of the reserving States, and secondly, it helps in understanding the level of juridical flexibility that is available in these reservations.
This thesis establishes that the practice of making reservations to international human rights regimes runs counter to theories of ontological universality of human rights. In the case of Shari`ah-based reservations, it reveals that Islamic States are reluctant to forfeit or bargain on certain precepts of Islamic law that are perceived to contradict normative human rights such as absolute freedom of religion and same rights of married spouses. At the same time, it suggests that Islamic States accept the large majority of human rights norms, and make exceptions to only a few select human rights. In addition, the thesis also proposes that the flexible reservations regime of the VCLT provides an effective mechanism for the Islamic States to engage and participate in international human rights treaties, in spite of the reservations.
The principal contribution of this study is that it provides a hermeneutic tool - the diversity paradigm - for understanding the plurality of human rights treaty law. I have established that international treaty law on reservations and State practice of making reservations to human rights treaties confirm the existence and validity of a diversity paradigm in the current human rights discourse. The diversity paradigm approach can play a constructive role in delineating the ontological or philosophical argument for the universality of human rights and the actual State practice of committing to and implementing human rights treaties. With the help of this hermeneutic tool I have established that a flexible, international treaty law based approach to human rights treaties is more effective in the propagation of human rights norms in diverse cultural-legal environments as noted in this case study of the reservations to human rights treaties made by Islamic States
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