Legal Methods and Legal Structures - Essay Example

Legal Methods and Legal Structures Table of Contents Introduction 3 Comparison between R. (on the application of Playfoot) v Governing Body of Millais School and R. (on the application of Begum) v Denbigh High School Governors 3 2. Comparison between Dr Rowan Williams, Archbishop’s Lecture – Civil and Religious Law in England: A Religious Perspective and Lon L. Fuller’s Law as an Instrument of Social Control and Law as Facilitation of Human Interaction 6 3. Discussion of “Begum and Playfoot Show That the Law Can Successfully Resolve Disagreements over the Acceptable Boundaries of Public Professions of Faith” 7 Conclusion 11 References 13 Introduction The recent years have witnessed extensive augmentation in the judicial process related with religious assumptions. Several states throughout the globe are thus viewed to adopt certain stances towards strengthening the religious assumptions of the citizens. The aspect of secularity is identified to have significant implications for applying constitutional rules protecting freedom of religion as well as co-existence of different religious communities within a society. The comparative analysis of secularity factor within varied states has certainly provided greater understanding about the nature of pluralism as well as the role of religion in modern society1. Against this backdrop, the essay intends to make comparative analysis of the cases related to religion along with measuring the effectiveness of law to deal with such cases. 1. Comparison between R. (on the application of Playfoot) v Governing Body of Millais School and R. (on the application of Begum) v Denbigh High School Governors The issue of whether wearing religious apparel can be prohibited or restricted has been appeared as an important topic of discussion in several jurisdictions. Unfortunately, no clear or uniform response to this particular issue or claims has been recognised so far. In certain circumstances, courts are involved in justifying the ban on religious attire, while in other circumstances, courts are often seen to lack in making proper jurisdictions concerning the aforesaid issue. A comparison of two religious apparel cases that predominately arise in the context of school has been depicted in the following discussion. In R. (on the application of Playfoot) v Governing Body of Millais School [2007] H.R.L.R. 34, a 16 year old minor named Lydia Playfoot was the claimant. Lydia was pursuing her education from a non-denominational girl’s school in Horsham West Sussex. The Governing Body of Millias School was the defendant, which prohibited Lydia to wear a chastity ring (purity ring) as an insignia of her commitment made towards her religious beliefs. Nevertheless, the school has defined a clear set of dress code, which restricted the wearing of apparel other than plain ear studs. Notably, Lydia’s father disagreed with such dress code formulated by the school. Subsequently, she filed a lawsuit claiming for judicial investigation of the defendant’s decision. Her claim was grounded on the fact that the decision of the school prohibiting her from wearing purity ring was against her right to freedom of thought, principle and religion as per Article 9 prescribed European Convention on Human Rights (ECHR) as well as discrimination in violation of Article 14 of the ECHR. The Deputy Judge, Michael Supperstone Q.C. considered the legal proceeding of this case. The court was required to provide judgement on whether the wearing of chastity ring was a demonstration of Lydia’s religious beliefs, prohibiting Lydia to wear chastity ring that would be impediment of her religious beliefs and whether the issue is justified under Article 9(2)2. In order to determine whether the wearing of the ring was a manifestation of belief, the Deputy Judge referred to R (Begum) v Governors of Denbigh High School (2006). Based on the case law and Article 9 of ECHR, the Deputy Judge asserted that an individual owes the right to express ones religion irrespective of time and place. However, referring to Williamson & Ors, R (on the application of) v. Secretary of State for Education and Employment & Ors, the courts stressed that Article 9 does not guarantee act of an individual, which is driven or inspired by a religious belief to be protected under the same. Correspondingly, the Deputy Judge referring to the Article 9 (paragraph 21.2), which firmly disregard every act of an individual to be protected on the ground of religious belief, decided that wearing a purity ring is far from related with the religious beliefs and thus, Lydia was not entitled to wear the ring3. Thus, based on the above jurisdictions, the judicial review was delivered in favour of the defendant (Governing Body of Millais School), stating that the ring wore by Lydia was not an obligation of her faith and hence it was not a manifestation of her belief. Subsequently, the court passed the judgement stressing that the decision of the defendant was not against the law and the provisions articulated in both Article 9 and Article 14 were not infringed by this decision4. In contrast, in R. (on the application of Begum) v Denbigh High School Governors [2006] UKHL 15, the House of Lords enforced uniform policy, which required wearing of a uniform restricting students of a public school to wear the type of apparel or also jilbab required by a young Muslim woman. Denbigh High School Governors were involved in extensive conversation with the Muslim community in order to ensure that their act does not contribute towards the breach of interest of local community. Later, with a unanimous decision, “shalwar kameeze”, as a version of the school uniform was introduced. Muslim students accepted the uniform as well as most of the members of the Muslim community expressed their satisfaction. However, after first two years at the school, the claimant Shabina Begum refused to wear this uniform and began to wear a jilbab instead. On court hearing, the judges unanimously decided that there was no breach of the student’s rights, as she had been fully informed of the uniform policy at the time of admission and had the choice of joining other schools that would permit her to dress according to preferred form of attire. The panel of judges concluded that the policy of the school was not in breach of the Human Rights Act 1998(UK)5. 2. Comparison between Dr Rowan Williams, Archbishop’s Lecture – Civil and Religious Law in England: A Religious Perspective and Lon L. Fuller’s Law as an Instrument of Social Control and Law as Facilitation of Human Interaction During the early 2008, extensive public discussion reflecting ‘Islam in English Law’ was arranged at the Royal Courts of Justice in London, UK. On February 08, 2008, the Archbishop of Canterbury Dr. Rowan Williams delivered a lecture titling ‘Civil and Religious Law in England: A Religious Perspective.’ In his lecture, Dr. Rowan argued that the UK’s legal system is required to engage progressively with religious aspects and inspirations. He pointed that around 1.6 million people from Muslim community are residing in the UK. He added that most of the Muslims use Sharia law matrimonial and private law as a rule to settle disputes and other related matters. On this note, the Archbishop argued that despite the widespread use of Sharia law, decisions of Sharia courts are not recognized by the UK law. In addition, Dr. Rowan asserted that the UK law should recognise legal elements of Sharia into the law. The basis of his contention was grounded on the aspects that Sharia law was preordained and the incorporation of Sharia law into the UK’s law would enhance community cohesion by making various religious minority communities part of the public process. In his lecture, the Archbishop further argued that none individual has the right to curtail anyone’s citizenship or prevent free participation. In this regard, he argued that there lay certain domains wherein the recognition of the roles of Sharia can be extended such as matters related to marital law, laws governing trade and lawful organisations of mediation as along with conflict resolution. However, significant stress was placed by him on the conditions essential for moving further towards such incorporation without sabotaging basic liberty. It is vital to mention that his message was based upon the conjecture that every individual have coinciding identities and that the promotion of membership of one set should not impede their liberty as a member of other set6. Conversely, Lon L. Fuller argued that it is the gradual human interaction process, which facilitates towards the development of law. Fuller has mainly focussed on three areas of law including laws relating to murder and physical violence, contract law and customary law from the perspective that considers law as an instrument to assist human interaction. Fuller claimed that laws that govern murders and other physical violations, have significant influence on controlling human behaviours. An argument was also made in the similar stance stating that law of contract is a social control, which binds the individuals who attempt to ignore contractual obligation. In addition, it has been contended that failure of the law to control human behaviour may contribute towards constraining interactions, which in turn may lead towards the emergence of reciprocal understanding. With this connotation, Fuller argues that law tends to develop due to regulated as well as restricted process of human interactions. Furthermore, according to Fuller, the modern statutory law predominately relies on customary law for its successful functioning. In this regard, Fuller claimed that human interaction also facilitates customary law as well as it drives from human interaction. He contended that law rests partly in recognised forms and mutual expectations that promote sense as well as direction to the entire trial process7. 3. Discussion of “Begum and Playfoot Show That the Law Can Successfully Resolve Disagreements over the Acceptable Boundaries of Public Professions of Faith” In recent years, the relationship prevailing between state and religion has been subjected to considerable contention and controversy. The analysis of the constitutional position with respect to religion is viewed to be quite complicated. No foundational constitutional code, which clearly defines the constitutional position of faith, is identified in the context of the UK. Historically, issues that safeguarded religious beliefs and practices were dealt intermittently. However, with the incorporation of Human Rights Act 1998 that retains the provisions from Convention Rights in the European Convention on Human Rights, constitutional protection grounded on the principle of freedom of religion and belief is ensured. The enactment of the Human Rights Act 1998 has been claimed to dramatically alter the legal background concerning the fortification of religious beliefs and views in the UK8. It is vital to mention that the UK Human Rights Act 1998 was widely applied in both the cases. UK Human Rights Act 1998 deals with the implementation of provisions in the UK law articulated in the European Convention on Human Rights (‘ECHR’). In the UK, individuals are free to conduct religious marriages and no legal consequences are likely to arise from such action or the conduct. Over the preceding two decades, significant development is witnessed with respect to the recognition of religion and belief as the major elements of discrimination law. Historically, individuals from diverse religious group were safeguarded under the Race Relations Act 1976, which prohibited any restriction based on racial gradient. However, the Act did not clearly defined measures pertaining to prohibition of religious discrimination. In the contemporary society, discrimination laws such as the Employment Equality Regulations 2003 have emerged as one of the extremely important measures that firmly prohibit oppression, discrimination and harassment based on religion and belief9. In R. (on the application of Begum) v Denbigh High School Governors [2006] UKHL 15 ,the contention of Begum concerning the prohibition of wearing jilbab breached the rights articulated in Article 9 was disregarded based on the aspect that the claim of the applicant was subjected to inter alia. In relation to the case, the court stated that the applicant (Lydia) could have enrolled in the school, which allowed the wearing of hijab. The court also asserted that the uniform policy of the defendant school does not breach the provisions articulated in Article 9 of ECHR10. On the other hand, in relation to the case of R. (on the application of Playfoot) v. Millais School Governing Body [2007] HRLR 34, the applicant Begum claimed that the uniform policy of the defendant school has breached her convention rights. However, the court asserted that prohibiting a student to wear a “purity ring” did not breach her convention rights. The decision of the court was based on the notion that the applicant could have used other ways to demonstrate her religious beliefs11. Faith, with respect to the court’s ability to judge between opposing interests, relies on its decision making quality. It is quite important to make decisions that are robust and balanced. In the cases of R. (on the application of Playfoot) v Governing Body of Millais School [2007] H.R.L.R. 34 and R. (on the application of Begum) v Denbigh High School Governors [2006] UKHL 15, the courts have had revealed the effectiveness of the law to successfully resolve disagreements over the acceptable boundaries of public professions of faith. Accordingly, it can be argued that in both the cases, the courts have rightly recognized the rules and regulations in the context of assessing the balance between the interests of communities and individuals. The decision making in these two cases can be recognised to be quite fair in its entirety. The courts, in both the cases, remained much focused on the issue of religious attire in an educational context. In these two cases, the courts can be seen to apply fair along with unbiased principles under the Human Rights Act 1998 and justify that the defendants in both the cases have exercised their discretion reasonably, prudently and in good faith12. In both the cases, it can be affirmed that Lydia and Begum shows effectiveness of the law to analyse the matters relating to religious attire under Article 9. The effectiveness of the law to address the issue prevailed in the cases was demonstrated through referring the appropriate case law on the subject of when and how secular authority should mediate in religious matters. Besides, these cases provided a clear description that the law does not restrict any individual to dress religious attire, but this right may depend on a particular context. In both the cases, the courts’ decision can be viewed to be non-speculative and supported by evidence. Article 9(2) analysis in both the cases can be identified to be better balanced with respect to proportionality assessment. Due regards were placed by the courts on alternative arguments about the wearing of religious attire. Interest of parties in these two cases were also due significance. Preservation of public order and social cohesion can also be seen in the case of Begum. The decision of the courts in both the cases can be seen to rest on the assumption that faith is divisive in certain circumstances with regard to social cohesion13. Evidently, it can be argued that the decision of the court in favour of the defendants in both the cases can be closely related with the promotion of social cohesion by preventing the use of divergent type of uniform. The courts’ decision in both the cases can also be duly considered as incidental to the extent that deviation from the school uniform policy would undermine the tenet of social cohesion. It is also rightly observed that the courts in both the cases have placed due importance on the schools’ discretion to formulate and implement policy pertaining to uniform. It will be vital to mention that the courts’ decision in both the cases does not recognised the infringement of the applicants’ right under Article 9(1) of the convention, which the court justifies by referring to Article 9(2). It was held by the court in the case of Begum that the school has made decisions based on the principles of Human Rights Act 1998 and there was no breach of Begum’s right under Article 9(1) of the convention14. It can be affirmed from the foregoing discussion taking into account the cases of Begum and Lydia that the law can successfully resolve disagreements over the acceptable boundaries of public professions of faith. In other words, a few of the religious claims have been successfully resolved by referring to Human Rights Act 1998, however, its effect on public as well as political discourse can be identified to be quite massive. Notably, certain difficulties can be seen with respect to secular authorities while dealing with religious matters. In order to ensure increased effectiveness of the law governing the religious matters, it can be argued that greater clarity is essential for evading future dilemmas. Thus, in order to ensure that the religious matters are resolved in an effective and unbiased manner, it is extremely important for the presence of a strong court. The contemporary society can be seen to be moving towards becoming more diverse. In such circumstance, there lays the utmost requirement of following fair and effective doctrines that can be used and referred to prudently navigate the interests of both communities and individuals. It cannot be denied that the principles of convention are “‘living instrument”, however, the European Court must need to reveal its flexibility to ensure making changes for generating better outcomes. It is pivotal that the laws governing religious matters are capable enough to resolve the differences emerging from multicultural society now and in future15. Conclusion From the above analysis and discussion, it can be affirmed that the issues related with religion impose profound impact on the effective performance of judicial bodies. Accordingly, the analysis of the two cases i.e. of Lydia and Begum displayed the effectiveness of the law in dealing with religious matters. Notably, both the cases revealed how the courts have efficiently applied the provisions of Human Rights Act 1998 as well as case law to preserve public order and maintain social cohesion. Nevertheless, certain drawbacks have also been apparently identified in this context that needs to be mitigated in order to remove contentions related to resolution of religious matters in future. References Anthony Bradney, ‘Religion and the Secular State in the United Kingdom’ [2003] The Social Context 737 James Dinemans, Can Yeginsu, Tom, Cross and Hafshah Masood, ‘The Protection of Religious Rights’ Oxfor University Press 1 Lon L. Fuller, ‘Law as an Instrument of Social Control and Law as a Facilitation of Human Interaction’ [1975] BYU Law Review 89 Mike Higton, ‘Rowan Williams and Sharia: Defending the Secular’ [2008] International Journal of Public Theology 400 Nicholas Gibson, ‘Faith In The Courts: Religious Dress And Human Rights’ [2007] Cambridge Law Journal 657 Read More