Working Papers

Cross-border family cases and religious diversity What can judges do?

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Author(s): 
Maarit Jänterä-Jareborg
Publication: 
Religare Working Paper No. 10 / January 2013
Abstract: 

This contribution focuses on challenges faced by European judges when examining family disputes in a multicultural context. Why are judges, generally, so uneasy when facing religiously or culturally motivated claims? Under what conditions can religious law be applied in cross-border family cases? What are the limits of Private International Law in this respect? Case law from primarily the Nordic jurisdictions is examined in order to illustrate the points made. Ultimately, the parties’ ability to formulate their claims in a legal language is essential for the outcome of a dispute. Where permitted by the rules of procedure of the competent court, the judge should strive to stimulate an active dialogue with the parties for the purpose of acquiring a better understanding of the issues at stake.

In pursuit of the pagans: Muslim law in the English context

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Author(s): 
Prakash Shah
Publication: 
RELIGARE Working Paper No. 9
Abstract: 

Western and Muslim law. Muslim law is itself a complex, pluralistic amalgam of different legal ‘bricks’, and in the context of the struggle for Islam to be acknowledged as a legitimate source of value pluralism in the Western context, the religious aspects of Muslim law, with their doctrinal justifications, are being foregrounded. With the English case as the main focus, I further argue that customs among Muslims are suppressed in this process of ‘shariatisation’. Beyond that, even Muslim doctrines are being placed under the spotlight in various ways. These changes are taking place as a result of Muslims living as nondominant communities in Europe, where they are under the gaze of the dominant culture and are judged to be potential or actual violators of human rights and the rule of law. Relying on Balagangadhara’s (2005) explanation of the ‘dynamic of religion’, I present these processes as an outcome of the collision of two religious cultures, the Islamic and the Western.

Religion and the Myths of Secularization and Separation

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Author(s): 
Veit Bader
Publication: 
RELIGARE Working Paper No. 8
Abstract: 

This paper discusses the difficulties we encounter in working out with care and detail – in conditions of extensive religious diversity – a concept of religion that is not biased towards ‘Western’, Christian or Abrahamic religions. Yet, it also tries to show that we need such a concept for practical and scientific purposes. With the aim of ending the unhappy marriage between ‘modern’ sociology and a predominant political philosophy that has uncritically legitimized the ‘secularization of societies’ and a pretended ‘secular state’/politics, the paper discusses whether it is possible to develop critical concepts of ‘the secular’ and of ‘secularization’ that are free from their Western, Christian and Protestant bias. It intends to show that only polycontextual and perspectivist concepts can achieve this and what such critical concepts look like.

Transnational family relations in migration contexts: British variations on European themes

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Author(s): 
Prakash Shah
Publication: 
RELIGARE Working Paper No. 7
Abstract: 

This paper discusses the increasingly transnational and trans-jurisdictional activities that members of diasporic communities engage in, and the ways in which members of such communities may experience legal penalties within Western legal systems for such engagements. With a focus on British legal systems and some European jurisprudence, the paper outlines the ways in which trans-jurisdictional marriages and divorces have become two key areas where penalties may be experienced. The writer argues that this not only poses problems for the ways in which domestic legal systems in Europe may impose unjust results for those diasporic communities, but goes on to suggest that, for a more just global legal order, the basis of private international law rules in the principle of the ‘comity of nations’ may have to be rethought by its transformation to that of a ‘comity of peoples’.

Alternative Dispute Resolution in Europe under the Auspices of Religious Norms

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Author(s): 
Mathias Rohe
Publication: 
RELIGARE Working Paper No. 6
Abstract: 

There has been a remarkable shift towards means and bodies of extra-judicial (alternative) dispute resolution (ADR) in many countries. Yet, at the EU level no broad in-depth research is available on ADR regulations and cases, combining the sociological and legal issues. This paper aims at identifying the particular challenges associated with ADR for EU citizens and immigrants who are affiliated with religion-based legal orders and at formulating a set of questions on that basis for further research.

The Place of Religion in European Union Law and Policy

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Author(s): 
Sergio Carrera & Joanna Parkin
Publication: 
RELIGARE Working Paper No. 1
Abstract: 

While the EU has no explicit legal competence in the sphere of religion and the management of relations with faith communities, religions concerns have taken on increasing importance within the legal and institutional framework and policy discourses of the EU in the last years. This paper provides an overview of how religion and issues of religious diversity are being framed and addressed in EU law and policy by undertaking a critical analysis of the ways in which EU law and policy deal with, engage and understand religion at the policy level of the European Commission.

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