Minorities and Law: Past and Present

TY - JOUR

T1 - Minorities and Law: Past and Present

AU - Malik, M.

PY - 2014/7/30

Y1 - 2014/7/30

N2 - Recent discussions have presented non-state legal orders of minorities such as Jews and Muslims as a parallel legal system and an ominous threat to liberal political order. I argue that the presence of ‘law-like’ institutions that are a feature of some minority communities are best described as a minority legal order. On a closer analysis of the history of European legal systems, it becomes clear that minority legal orders have always co-existed with state law. I use these historical insights to suggest that a liberal democracy need not eliminate or criminalize minority legal orders in order to pursue a vision of ‘one law for all’. Instead, it is possible to take a more pluralist approach that accommodates minorities within increasingly diverse communities. In considering how to respond to a minority legal order, a liberal democracy should pay special attention to the vulnerability of individuals such as women, the young, gays and lesbians who may be subject to social pressure to comply with the norms of their group and who may be at risk of harm within a minority legal order. I also explore the advantages and disadvantages of the different techniques and practical ways in which the liberal state can respond to and work with minority legal orders.

AB - Recent discussions have presented non-state legal orders of minorities such as Jews and Muslims as a parallel legal system and an ominous threat to liberal political order. I argue that the presence of ‘law-like’ institutions that are a feature of some minority communities are best described as a minority legal order. On a closer analysis of the history of European legal systems, it becomes clear that minority legal orders have always co-existed with state law. I use these historical insights to suggest that a liberal democracy need not eliminate or criminalize minority legal orders in order to pursue a vision of ‘one law for all’. Instead, it is possible to take a more pluralist approach that accommodates minorities within increasingly diverse communities. In considering how to respond to a minority legal order, a liberal democracy should pay special attention to the vulnerability of individuals such as women, the young, gays and lesbians who may be subject to social pressure to comply with the norms of their group and who may be at risk of harm within a minority legal order. I also explore the advantages and disadvantages of the different techniques and practical ways in which the liberal state can respond to and work with minority legal orders.

U2 - 10.1093/clp/cuu011

DO - 10.1093/clp/cuu011

M3 - Article

SN - 0070-1998

VL - 67

SP - 67

EP - 98

JO - Current Legal Problems

JF - Current Legal Problems

IS - 1

ER -