I-CON International Journal of Constitutional Law, 2012 (Forthcoming)
20 Pages Posted: 11 Jun 2012 Last revised: 24 Jun 2012
Date Written: 2011
All over the world, the challenges of defining the scope and boundaries of the public recognition and accommodation that ought to be given to religious faiths and practices have come to occupy a place at forefront of public debate. The claims of culture have been thoroughly explored in both the constitutional context and the criminal law area. But what about the civil side of the justice system? What are the core challenges raised by the “migration” of claims of culture from the constitutional law arena of public accommodation of religious diversity to the realm of civil adversarial disputes between private parties in family matters, where the state and its agencies do not act as immediate stakeholders or interveners? Legal scholars and political philosophers have paid surprisingly little attention to this question. This paper begins to amend this lacuna.
The discussion is informed by a quantitative and qualitative study of Canadian private family law litigation that involved a cultural element, covering the period of 1980-2005. Drawing insights from this comprehensive study, I will articulate and defend the characteristics of what we might call the culture-demystifying approach. On this account, the claims of culture can operate as a legitimate consideration by a trial or appellate judge, where relevant — but crucially as only one among many other factors and considerations — rather than the absolute trump card that one of the parties can raise to end a dispute. The culture-demystifying approach will be distinguished from two “absolutist” alternatives: the culture-neutralizing and the culture-override approaches.
By ensuring that identity-based factors are neither excluded nor privileged, the culture-demystifying approach comes closer to fulfilling the promise of equal citizenship for women and other historically vulnerable members, as well as meeting the goals of fairness and justice for the individual litigants.
Keywords: culture, citizenship, courts, justice, women, family, children
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