Questions About the Reasonable Accommodation of Minorities
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The furore following the lecture by the Archbishop of Canterbury in early 2008—where Dr Rowan Williams discussed the prospect of some limited form of Shari’a being introduced into Britain—reminds us that the accommodation of minorities is seldom an uncontroversial or straightforward subject. The UK debate quickly degenerated into a heated and polarized discussion that, with few exceptions, neglected to undertake a constructive analysis of the underlying issues and policy concerns. In this brief essay I hope at least to partly redress that shortcoming by illuminating some key questions that a modern liberal state confronts in legally accommodating the religious and cultural claims of minority groups. The title of this essay refers to the ‘reasonable accommodation of minorities’. I take this to mean accommodation within a modern legal system of the norms and requirements of their culture or religion or of the law associated with their culture or religion or associated elsewhere with a political community of which they and their ancestors were once a part. I shall assume that the accommodations occurs within the framework of a comprehensive system of law in a modern democratic state. Among other things, ‘accommodation’ might include (i) exemptions from generally applicable prohibitions or requirements to permit actions (or omissions) required by minority norms but presently prohibited by general law, or (ii) giving legal effect to transactions (such as certain types of marriage or property transactions) structured and controlled by norms other than those used to structure and control similar transaction in the general system of law. (An example of (ii) might be the introduction and recognition of marriage as defined by Shari’a law within the general framework of British law or Israeli law of the law of Ontario.) I assume that ‘accommodation’ does not include devolution of government, in a sense that would allow a minority community to determine, for example, (iii) the imposition of punishments for crimes that were more severe than, or different in character from, the punishments imposed by the general legal system (amputation for theft, for example). Possibly accommodations of type (i) might have something in common with accommodations of type (iii)—for example, allowing minority groups freedom from constraints on corporal punishment imposed generally on parents. But the idea of devolution and regional autonomy, with different legal systems (what the Archbishop of Canterbury in his Shari’a Lecture called ‘parallel jurisdictions’), is in principle separable from the idea of accommodation within the framework of a single overarching legal system associated—importantly here—with a single state in control of the legitimate means of coercion. So I shall not discuss accommodations of type (iii).
Source Publication
Shari'a in the West
Source Editors/Authors
Rex Ahdar, Nicholas Aroney
Publication Date
2010
Recommended Citation
Waldron, Jeremy, "Questions About the Reasonable Accommodation of Minorities" (2010). Faculty Chapters. 1583.
https://gretchen.law.nyu.edu/fac-chapt/1583
