International Journal of Law in Context, Vol. 4, pp. 385-393, 2009
10 Pages Posted: 15 Nov 2009 Last revised: 18 Nov 2009
In “The Struggle for Law: Some Dilemmas of Cultural Legality,” Professor Roger Cotterrell argues that the law’s most distinctive aspiration is to promote a respectful exchange of ideas among different parts of a multicultural society. He illustrates his thesis with the House of Lords’ decision in Begum, describing it as “a relatively successful contribution to the process by which battlefields of rights are turned into areas of routine structuring” and finding much to admire in the messages communicated by the Lords in this case. I am more troubled by the Lords’ opinions in Begum and less convinced than Cotterrell seems to be that the court used it as an opportunity to promote successful cross-cultural dialogue. On close examination, the message it communicates to Muslims in Great Britain and elsewhere appears to be less that of mutual respect or “trans-cultural reasonableness” than of evasion and double standards.
This conclusion rests on four main observations. First, although Article 9 of the European Convention on Human Rights requires courts to engage in a two-part analysis by first asking whether an individual’s religious freedom has been limited and then determining whether any such limitation can be justified, the Lords simply elide both the crucial distinction between purpose and incidental effects and the careful scrutiny of necessary means that are required for a proper legal analysis in this context. The school dress code policy in Begum appears to have targeted a certain type of religious clothing because of its character as religious clothing and the particular belief system it represents. Yet three of the judges held that the policy did not even limit religious freedom, and none of them made a serious attempt to show that this limitation was “necessary in a democratic society” as required by the ECHR.
Second, a familiar lesson of both feminism and critical race theory is that rights discourse can often be uplifting for disadvantaged or marginalized populations, and that denying these individuals the chance to participate in that discourse, and to assert their rights, can be alienating or disempowering for them, serving mainly to reinforce their subordinate status. In this light, one of the most conspicuous features of Begum is the manner in which Shabina Begum and her family are chastised, scolded even, for approaching their dispute with school officials from a legal perspective and vigorously asserting her legal rights. Several of the Lords accept without comment the school’s portrayal of this behavior as “threatening” and add some unflattering characterizations of their own.
Third, as Cotterrell perceptively observes, the House of Lords effectively “dilutes Shabina Begum’s individual claim by implicitly portraying it as something else: perhaps a politically motivated group claim” or “an insincere claim abstracted from her personal circumstances.” For example, the Lords emphasize that Begum elected to comply with the school’s dress code for two years before subsequently refusing to do so. Oddly, several of the judges imply that the school thereby obtained some kind of reliance interest in this behavior, as if an individual were not entitled to change her mind about what clothes to wear and thereafter modify her conduct accordingly. At the same time, the Lords pass right over the rather obvious differences between the ages of twelve and fourteen in the typical course of female adolescent development. Apart from a brief mention by Baroness Hale, one searches in vain for any serious analysis or recognition in these opinions of the fact that, over the course of these two years, Begum presumably had undergone puberty, crossing the threshold from girl to young woman, at least in her own eyes, and developing breasts, hips, and other adult characteristics, which she then wished to conceal, as a matter of sincere religious belief or otherwise. A more sympathetic decision might have considered these facts and Begum’s physical, cognitive, and emotional development generally from the perspective of familiar rites of passage like the Christian confirmation or Jewish bat mitzvah. Instead, the Lords often fall into the dismal pattern of exoticizing Begum and of viewing her largely unremarkable manifestation of adolescent independence through the prism of their own apparent multicultural anxieties.
Finally, another indication that the Lords missed a valuable opportunity to promote successful cross-cultural dialogue in Begum is, paradoxically, the deference it displays to Islamic religious authorities. The court repeatedly relies on the approval of Muslim religious leaders to uphold the school’s dress code policy. To grasp the irony of appeals to religious authority in this context, one need only recall the central drama of the Reformation, which eventually paved the way for secular developments such as the Scientific Revolution and the Enlightenment, but which "was above all else a revival of religion," as historian Roland Bainton observes. Luther’s famous, if perhaps apocryphal, declaration of autonomy has long been held to mean that no one should be compelled to accept the authority of intermediaries in matters of individual conscience. The Lords neglect to explain why this celebrated principle does not apply to Muslims like Shabina Begum. Isn’t she entitled to decide for herself which, if any, religious authorities to accept, without being forced to comply with the edicts of local Imams or “mainstream” Muslim opinion?
Keywords: human rights, civil liberties, religious freedom, discrimination, Shabina Begum, Edward Said, Lon Fuller, Patricia Williams, Islamic headscarf, autonomy, equality, orientalism
Suggested Citation: Suggested Citation
Mikhail, John, Dilemmas of Cultural Legality: A Comment on Roger Cotterrell's 'The Struggle for Law' and a Criticism of the House of Lords' Opinions in Begum. International Journal of Law in Context, Vol. 4, pp. 385-393, 2009; Georgetown Public Law Research Paper No. 1506242. Available at SSRN: https://ssrn.com/abstract=1506242
By John Mikhail
By John Finnis