How can English law accommodate an increasingly pluralistic society?

The diversity of beliefs and practices by members of different cultures is a challenge that all legal systems have to cope with. In the United Kingdom (UK), Christianity remains the official state religion, manifesting itself in ways such as the appointment of the Lords Spiritual, the opening of Parliament with prayers, the coronation of the monarch by the Archbishop of Canterbury and more. However the increasing presence of minority groups1 and the weakening influence held by the Church of England over the views of the majority Christian population have resulted in what is possibly a greater pluralism of views in society than ever before. In light of such trends, it is submitted that English law and the English legal system have to adapt accordingly to preserve a harmonious co-existence of differing ideas religious or otherwise by adopting a more discretionary and flexible approach. DEVOLUTION Even within a single country, social and cultural norms can differ dramatically between local communities with varying ethnic or religious compositions. It is therefore only practical for legislators to make decisions at a wider policy level, leaving the innumerable specific considerations that would differ from place to place to the implementers of their policy in local communities. In an increasingly pluralistic society, this practice may have to become even more pronounced to account for the wider spectrum of views across different segments of society. We can find judicial support for such devolution of responsibilities in cases like R (Begum) v Headteacher and Governors of Denbigh High School2, where Bingham LJ expressed the the court's reluctance to change the school's uniform guidelines, as it would be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governers, to overrule their judgment on a matter as sensitive as this. He further observed that the power of decision has been given to [the school] for the compelling reason that they are best placed to exercise it a justification that can apply to
1 UK Census 2001, Office for National Statistics 2 [2006] UKHL 15

the delegation of duties other than setting school regulations. It is also possible to construe this approach as an extension of the concepts of subsidiarity and marge d'appreciation in European Union (EU) law, which emphasize how national authorities are in principle better placed than an international court to evaluate local needs and conditions3 and how the authorities' direct knowledge of their society and its needs means that they are in principle better placed than the international judge to appreciate what is in the public interest4. Such reasoning can be applied as much to pluralism within a country as it has been to pluralism between countries by the European Court of Human Rights (ECtHR). SPECIFICITY Where disputes cannot be resolved by local authorities, courts should be wary of creating precedents with far-reaching consequences. Given that every case involves different parties in different circumstances, courts should place particular importance on the facts of each case, rather than seek to fit cases into broad categories or propose general rules that may not be applicable in other situations. This seems to be the approach taken by the House of Lords in the Begum case, where it was emphasized that this case concerns a particular pupil and a particular school in a particular place at a particular time a clear acknowledgement that the role of courts is dispute resolution and not policy making. There will, of course, be those who argue that for the courts to take a case-bycase approach in every matter brought before them would result in inconsistency and uncertainty in the law. However eschewing sweeping pronouncements that may not be sustainable in an increasingly pluralistic society is not tantamount to deviating from the rule of law at will, and the ability to provide the fairest possible judgment in each new case more than compensates for the slight reduction in predictability of outcomes.

3 Sahin v Turkey (2004) 41 EHRR 109 4 Dickson v UK [2007] ECHR 44362/04

COMPROMISE With increasing pluralism, there will come a point where it becomes impossible for the law to satisfy everyone. Should that occur, courts must be ready to acknowledge that certain beliefs may require sacrifices in exchange, especially in the form of education and employment opportunities available. In the Begum judgment, Nicholls LJ stated that people sometimes have to suffer some inconvenience for their beliefs. However the question of what extent of inconvenience is justifiable remains. Bingham LJ, ibid, derived from ECtHR cases such as X v Denmark5 and Karaduman v Turkey6 the requirement that there must exist other means open to the person... without undue hardship or inconvenience, with the unspoken implication that such alternatives would likely be inferior to the original choice. In practice, this approach essentially translates to placing individuals from minority belief groups at a disadvantage purely because of their beliefs. However it should be noted that the occurrence of such cases are likely to be greatly reduced given the passing of the Equality Act 2010, which prohibits discrimination based on the protected characteristics of age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation (albeit with certain limited exceptions). It is thus argued that in the rare case where an individual is unable to obtain a particular right or entitlement using the Act, the courts can and should emphasize that individual rights are never absolute, but subject to the requirements of the society they choose to live in. RELIGIOUS LAW A more pluralistic society would undoubtedly require a body of law that is able to accommodate the increased pluralism of views. However it is argued here for reasons that are largely pragmatic that this should come from the increased flexibility and discretion afforded to the courts rather than the incorporation or recognition of religious laws (such as the Sharia for Muslims or the Halakha for
5 [1976] 5 DR 157 6 [1993] 74 DR 93

Jews) for members of these faiths. Firstly, the scope of application for such religious laws would be highly limited, for they could be used only in conflicts involving members of the same faith, and where all parties involved in the conflict agree to resolution of the conflict according to their religious laws. Secondly, given the distinct possibility of social pressure from relatives, friends and other members of the community, consent to submit to religious laws is difficult to determine and may not often be full, free and informed. Thirdly, it would be difficult to obtain public support for recognising certain aspects of minority religions that are perceived to be offensive or contrary to the majority perception of fundamental human rights, which is likely to be influenced by the tenets of the majority religion. It would thus be far more practical and effective to achieve recognition of minority views by preserving the existing unitary system of law, but allowing courts to take into account the beliefs and practices of minority religious communities, insofar as they do not adversely affect society as a whole. CONCLUSION In an increasingly pluralistic society, the diversity of views challenges the law to reconcile them in accordance with justice, yet the inherent problem is that the very conception of justice varies with each of these views. This essay thus takes a pragmatic approach to examining how the law can cope with the challenges of pluralism, and concludes that courts should exercise flexibility and discretion in the ways discussed above, within the limits of existing laws, and with a sensitivity to the needs and expectations of the society they serve in the long run.

[1306 words]

Toh Jia Jun 15 Dec 2011