Multicultural conflicts and national judges: a general approach.

AuthorHoekema, Andre J.
  1. Introduction

    How do social and legal actors negotiate accommodative solutions to legal questions regarding family matters in situations involving immigrant and ethnic minorities in Europe and North America? (1) In this contribution I want to suggest the usefulness of the concept of interlegality to study the encounters between majority and minority legal sensibilities. In a way I am not dealing with cases and examples--although many will pass by as illustration--but rather dealing with a "meta" question how best to study this aspect of legal life. Although I restrict myself to family matters, the discussion how to study these encounters between majority and minority legal concepts and sensibilities has a broader relevance, I venture to suggest. To prepare the ground, I feel the need to introduce some preliminary questions and try to summarize some bits of current discussions.

    1.1 By Way of Introduction.

    My leading question is what judges and legal actors in general do as a matter of fact in multicultural conflicts brought before them. When, to what extent and why do they take minority legal sensibilities into account? This is a "how do" question, to be distinguished sharply from the following, normative question, the "how should" question: what should a judge and other legal professionals do when confronted with values, norms and life patterns with which they are not familiar because these are related to a specific legal culture of what I prefer to call a distinct community. This "how should" question is a legal, theoretical and political philosophical matter to be answered along the lines of these disciplines. Although in this contribution I am not going to deal with these matters, their importance as well as the risk of mixing the two prompts me to briefly indicate the nature of this "how should" question.

    Many concerned observers of present day western countries and its legal order (2) are asking themselves how to construct a society and its legal institutions, allotting enough space for a wide variety of group identities and their legal traditions while at the same time fostering sufficient loyalty to common institutions and a kind of national identity to preserve a just and stable society. Some of these observers are far more engaged with critique of the reluctance of officials to accommodate other solutions to family problems while others lean more towards stressing the need for containing such legal plurality in the name of core values of English, Dutch and French society. But for all, it is clear enough that not every kind of distinct pattern of (family) life can be practised without restriction. We might hope to be able to cross the boundaries between the various identity groups and find common domestic (3) "conflicts of law" principles and rules which are endorsed by both the majority and minorities. But in the end, these restrictions may have to be defined unilaterally, as they are now. The matter recently has become extremely politicised; the exhortation to take other cultures seriously while at the same time respecting conditions for social cohesion was recently expressed forcefully by the Archbishop of Canterbury's masterful speech for a professional legal audience. (4) He declared himself in favour of some--in my view--rather modest ways of accommodating minority legal sensibilities (5) but immediately got lashed from all sides. This event warns us never to forget the wider social and political context when studying how social and legal actors cope with cultural diversity in family matters.

    So far for the "how should" question. Let me stress once more the difference with my own main question, the "how do" one: what are judges and many others as a matter of fact doing in multicultural cases and how can we best study such matters

  2. Legal Roads to Accommodation.

    Within the structure of the dominant legal order, one meets a fairly restricted number of ways to accommodate distinct legal institutions. These ways bind judges because they define them as binding. First of all there is private international law. This road is leading to what can be called institutional recognition, like recognition of a customary marriage abroad as valid and having legal consequences in the UK. (6) Then there is domestic law, where the law is perceived as being the same for every citizen of the Netherlands but leaves space for different patterns of practices and principles. An example of this normative recognition is the accommodation of practices associated with the kafala system of kin based child-care. A judge encounters a North African Islam-based way of transferring a child to a kindred family living in the Netherlands whereby extended family members other than parents raise the child as their own. This system avoids the process of formal adoption, which they consider to contradict the Muslim law. (7) Eventually, kafala came to be seen as sufficiently similar to an existing concept like foster child and therefore could be seen as qualifying the new parents for a child benefit. (8) The legal technique here is one of making incidental exceptions from the norm and/or interpreting the norm differently. Thirdly there is the vast domain of civil law, where we find several institutions that leave the parties free to regulate their affairs as they wish, like designing a contract for a loan in such a way as to avoid the notion of paying interest. Fourthly, many norms, particularly in family matters, are formulated in terms of open concepts as when the law says that the awarding of child custody after a divorce to one of the parents or both has to be determined by the best interests of the child. A harsh debate is currently going on in the Netherlands about whether this notion legally and practically implies or at least legally allows taking into account the specific distinct cultural background of a child and/or the parents or one of the parents. (9) Politically, this is a sensitive area: social workers, child protection and welfare boards, and perhaps also judges and occasionally lawyers fear being accused of granting a "privilege" to minorities and then fall under the spell of Sir Trevor Philips's dictum, "we have only one set of laws and that's the end of the story (...) If you want to have laws decided in another way, you have to live somewhere else" (10). They already envision headlines in the yellow press suggesting that shari'a takes over Holland. (11)

    Lastly, let's mention the granting of group rights for instance in personal matters, a very extended and robust form of legal pluralization of domestic law. This way of accommodating pluralism would normally imply that people of a specific religion and/or ethnicity or culture have to bring their cases before specific distinct tribunals or councils. They have no choice. In this sense, the group rights system is quite different from Jewish councils and similar conflict-solving institutions that are formally based on voluntary participation. Because of this compulsive character, group rights are not highly regarded in Europe and not often claimed by minorities. Such a system would make it impossible for members of minorities to choose to take their conflict to an ordinary national judge.

  3. Interlegality

    Where is all this leading? To interlegality. We have to portray the present living together of "communities" with different world views, lifestyles and legal practices; as encounters of individuals, "actors" forced to or eager to admit that there are other ways of doing things than the conditions in their country of origin. (Nelken 2005: 5). In doing so, we avoid the notion of different legal orders as fixed and independent elements and focus on ways individuals use their own practices and those of others. We have to concentrate on the selective use of "the legal" by concrete persons as a resource for promoting their interests. This means adopting the so-called actor-oriented approach and avoiding any notion of structural determination, but without suggesting that people are always completely free to do as they wish. (12)

    The stress on the relevance of individual actors. definitions and behaviour is brought out nicely by Acton (2005). Kalderash Roma communities in the USA changed their "family law" in the direction of dominant USA law, to prevent their women from going to state law and state legal officials and walking out on their own conflict solving traditional authorities. This pattern of looking for authoritative decision making bodies where your interests are served--best called forum shopping--is a very common phenomenon among members of distinct communities. Individuals are not the prisoners of their own supposedly integrated and homogeneous culture, but choose among legal orders, pressure their own leaders and authorities to take national or international legal elements into consideration but also, vice versa, challenge national authorities to take local legal sensibilities in consideration. The way Gypsy leaders reacted to the women's new stances, bolstered by a globalising feminism, is one of the ways in which leaders of local communities nowadays try to support and guard their specific collective identity by taking elements of global trends in majority law and blending them into their own, with the hope of maintaining themselves as a distinct community. This is often called a process of ethnic reorganisation. (13) In this sense Muslims living in present-day France who try to find new ways to conduct an Islamic marriage are trying to reorganize the ways their life hitherto has been arranged. (14) And they do so in response to pressure or demands imposed by the dominant culture. They are trying to remain loyal to their principles, the normative foundations of their culture, while at the same time taking on board norms or decisions inherent in the legal practice of state law--perhaps not just voluntarily.

    My definition of interlegality has to be...

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