Sociology of Law, Lund University, Lund, Sweden
This chapter may be read as an attempt not only to further develop the critique of rationality, but also to elaborate on some of the theoretical and methodological concerns of the previous chapters regarding the tension between law and sociology. Sociology and the anthropology of law were developed from their inception partly to address empirically the complexity of the relationship between law and society. Many of their insights into how law is socially constructed through the interaction between cultural, religious, economic and political factors remain incompatible with the aims and concerns of mainstream legal scholarship. Most social-scientific approaches to the study of legal institutions and legal behaviour have revealed the plurality of forms of law, demonstrating that it can simultaneously manifest itself in different forms and at different levels of social reality. By contrast, various schools of legal positivism have conceptually separated law from morality, legality from justice and facts from norms, in order to create a normative basis for justifying the unity and autonomy of law. This chapter starts by exploring the tension between Western and Islamic legal cultures in relation to immigrant communities living in the West. It then goes on to argue that the use of such antinomies as facts and norms, or law and morality, which are employed by legal theory in order to organise itself conceptually, diverts our attention away from the fact that law, whether it is defined as the command of the sovereign or the inner order of associations, is not divided into two opposing or contradictory poles. Instead, it consists of countless fragments which are not necessarily related in a formal rational manner.
This chapter is a revised version of ‘The Politics of Legal Cultures’. In (2008) Retfœrd: The Nordic Journal of Law and Justice 31(4): 37–60.
The concern with the limits of rationality, which we discussed in light of Kafka’s writings in the previous chapter, constitutes the backdrop against which we shall explore the relationship between law and culture in contemporary society. By turning to the works of two contemporaries of Kafka, to Eugen Ehrlich’s ‘living law’ and Hermann Hesse’s Steppenwolf, this chapter will attempt to throw new light on the ‘irrational’ elements of modern law, legal thought and legal cultures. This also allows us to view the tension between sociology and legal studies, and the separation between facts and norms, from a different angle than the one we used in Chap. 2. Our immediate point of departure, however, is more mundane and concerned with how law and legality is debated in multicultural Britain. Can UK law recognise and accommodate aspects of Sharia, such as Islamic family law, which is widely employed by certain Muslim groups living in Britain? To explore this question, we need to form a general understanding of the relationship between law and culture generally and examine how various cultures, religions, systems of beliefs and groups interact in modern Britain. We also need to consider that the interaction between ethno-cultural and religious groups takes place within a societal context which is permeated by history and forms of power and domination.
A case is made that we cannot satisfactorily explore the interaction between Western legal cultures, which emphasise democratic values and principles of human rights, and those of certain Muslim immigrant communities, which are neither based on Western democratic principles nor are sensitive to Western standards of human rights, without considering the political processes through which such interactions are realised. In this chapter, the relationship between the Western and Islamic legal cultures of immigrant communities living in the West is conceptualised, not only in terms of the compatibility of their value systems, but also in terms of the imbalance of power and authority which shapes this relationship. Which factors influence the interface of legal cultures, where one legal system is operating within the jurisdiction of the other and thus is subject to its conception of legality and moral standards? To what extent is the acceptance or rejection of the legal culture of the ‘other’ the function of an assessment of the actual compatibility of the cultures in question, assessing whether they can or cannot coexist in the same social space, and to what extent is it the outcome of legal ideologies and transient socio-political interests?
This chapter is divided into four sections. Section 1 explores the interaction between legal cultures by reference to three case studies: (1) a study of how the Bolsheviks attempted to engineer the modernisation of Muslim parts of Soviet Central Asia during the 1920s, (2) a 25-year-old case of domestic violence from the lower court in Sandviken, Sweden (tingsrätten i Sandviken), where the court regarded the cultural background of a Kurdish immigrant as a mitigating circumstance in sentencing, and (3) the negative reactions to the Archbishop of Canterbury’s proposal in 2008 to integrate parts of Sharia law into UK law, in order to address the needs of certain Muslim communities living in Britain. These case studies are used to conceptualise and examine the relationship between law, culture, religion and politics in the multicultural setting of late modern societies.
Section 2 defines ‘legal culture’ as a sub-category of the concept of culture, emphasising the importance of a shared language for the formation of a common cultural identity. This draws attention to the misleading presentation of Muslim communities in terms of a single mono-cultural or mono-ethnic identity.
Section 3 revisits Eugen Ehrlich’s work and argues that his sociology of law, which was neither a contribution to legal pluralism nor to comparative studies of legal cultures, was nonetheless sensitised by the cultural diversity he experienced in the Bukowina, and that his theory of ‘living law’ remains a useful tool for studying law in multicultural settings. The incompatibility of Ehrlich’s ‘living law’ with the formalist project of legal positivism of the time was captured in his debate with Hans Kelsen, who criticised him for confusing ‘is’ and ‘ought’. This chapter argues that Kelsen could not acknowledge Ehrlich’s sociology of law as a bona fide theory of law because ‘living law’ described how law manifested itself empirically and, at times, in a contradictory fashion. This allows a twofold reinterpretation of ‘living law’, either as an approach that recognises the irrational (or contradictory) elements of law or as a theory which introduces a different form of rationality (e.g. communicative rationality), thereby transcending the understanding of law as a system which coheres internally.
Section 4 concludes the discussions by referring briefly to Hermann Hesse’s novel Steppenwolf. The story is about a middle-aged man who has become aware of his inner duality. Outwardly, he is a cultivated and moral man, while inwardly he is a ‘wolf of the Steppes’. As the story unfolds, the man discovers that his belief that he was made of one or even two souls or personalities is illusionary, for every human being consists of ten, a hundred or a thousand souls or identities. This idea is used to return to the distinction between ‘is’ and ‘ought’ and to throw new light upon the three case studies in this chapter.
1 Three Case Studies on Law, Culture, Gender and Religion
1.1 The Bolsheviks’ Modernisation
In a study published in 1968, Gregory Massell describes how the Bolsheviks, during the 1920s, attempted to engineer the modernisation of the Muslim areas of Soviet Central Asia, by legally strengthening the standing of women in these regions (cf. Kidder 1983, p. 39). The Bolsheviks decided that women, who hardly had any social or legal rights and were excluded from public life, could be used as ‘a surrogate proletariat’ and an instrument to remove ‘backward’ Islamic customary practices. Although women did not represent the working class, which in these agricultural regions was yet to emerge, they could nevertheless be empowered to gradually ‘loosen and disintegrate traditional social relations’ which hampered the progress of modernisation (Massell 1968, p. 184). The Bolsheviks assumed that Muslim women would readily welcome and embrace such a reform and that a fundamental improvement in their legal status would lead automatically to the gradual demise of traditional Islamic structures and institutions. This would in turn pave the way for the transformation of these communities into modern societies. Subsequently, Muslim women were granted civil rights, which were supported by a new judicial system staffed, in part, by women. These legal reforms ensured that women could publicise grievances against their husbands, file for divorce and take employment—and thus participate in public life. At the same time, traditional court structures, including religious and customary tribunals, were abolished and replaced by Soviet courts.
The changes that ensued took the Bolsheviks by surprise. Women took advantage of the new laws reluctantly, and the male population subjected those who did so to hostile treatment and acts of violence. Moscow-trained judges and officials, who were imported to administer the new system, had neither knowledge of the local language nor any understanding of the culture of the local people. Understandably, they soon felt lost in the maze of claims and counterclaims that flooded the courts. To make matters more complicated, women who dared to leave their husbands, in search of the promised emancipation, often found no employment and were either forced into prostitution or had to return to their husbands. Far from revolutionising or modernising Muslim societies, or improving the situation of women, Soviet social engineering through law reforms reinforced traditional attitudes, values and structures. The brand of modernity which the Bolsheviks—and other Western imperialist powers—brought to the underdeveloped areas of Asia and other continents aimed at establishing their colonial hegemony. This ‘modernisation’ was not mediated through enlightenment but imposed on natives through the barrel of the gun and without consideration for their cultural identity, religious beliefs, political autonomy or national sovereignty (for a discussion on ‘colonial modernisation’ see Dabashi 2007).
The Bolsheviks started transplanting their own set of political values, socio-cultural norms, brand of law and legal institutions into the body of communities which already had functioning cultural norms, formal and customary laws and legal institutions. In addition, they did not attach any importance to Central Asia’s ‘patchwork of religious and tribal tribunals, usages, and laws’ (Massell 1968, p. 182). Far from being uniform, the natives’ legal order consisted of two systems with local variations: official or semi-official Islamic courts, which implemented the rules of Sharia, and the local customary rules of adat. This meant that in these societies ‘conflict resolution could be formal or highly informal, public or private, and the prevailing legal forms, norms and practices depended to a large extent on the particular region, communal organisation, and ethno-cultural milieu, as well as on the personal charisma of the particular judicial mediator’ (Massell 1968, p. 182). The combination of formal Sharia laws and the local customary laws of adat were related intimately to the social structures and dominant forms of social life in these societies. While the Bolsheviks could restrict the practice of Sharia, which had to be conducted publicly, they could not curb adat, which was an extension of cultural traits and did not require publicly implemented procedures.
Similar examples to that of the Bolshevik experiment can be found in the studies of how British colonial rule disrupted the lives of the people of India, by reproducing its own legal system in the country, and how the natives reacted by ‘perverting’ the new legal system through, for example, flooding ‘the courts with law suits against each other’ (Kidder 1983, p. 41). In contrast to the Bolsheviks, the British did not try to transform the customary rules of the native Indians but instead tried to enforce Hindu and Muslim customs, using the procedural frameworks and traditional institutions of English law. This approach, which appears to be more sensible than the Bolshevik’s method, was not without its problems. Hindu law ‘assumed the hierarchical caste system, and the ancient codes prescribed different penalties for the same crime, varying with the caste of the offender’, while Muslim law distinguished between the Muslims and the Kafir (infidel) (Smith 2005, pp. 160–161). In such a legal setting, where justice is realised through unequal treatment, the British introduced the principle of equality before law, but they gave too much regard to the homogeneity of Hindu and Muslim customary laws, which led them to ignore the differences between the practices of numerous Hindu sects and sub-sects, on the one hand, and Shia and Sunni Muslims, on the other. In addition, the British ignored the localised variations of Muslim laws and customs. In order to bring these customary rules within the framework of English law, they had to be recorded, which meant that the two laws had to be codified. This task was carried out by learned scholars using authoritative texts (Smith 2005). By codifying the customary law of Hindus and Muslims, the British deprived them of their dynamic property and their ability to register and respond to the changing conditions of the lives of the people who used them. As a result, the version of Hindu and Muslim customary laws, as described by the courts, soon came to be viewed as alien by the natives. According to Derrett (2005, p. 71), ‘if Hindu law “stagnated” under the British, Islamic law died’.
1.2 The Sandviken Case
In October 1989, a 24-year-old Kurdish immigrant from Iraq was brought before the Sandviken Lower Court in Sweden charged with assaulting, coercing and threatening his pregnant ex-girlfriend, who had left him to live with another man (Case B 61/89, Sandvikens tingsrätt). Although the court found the defendant guilty as charged, it nevertheless released him on a suspended sentence and fined him 3,000 Swedish Kronor (ca $400). Convictions for this type of criminal offence against a person ordinarily carried six months’ imprisonment, but in this case, when the court came to sentencing the accused, it argued that his ‘cultural’ background provided a mitigating circumstance’. According to the court’s judgement, the fact that the accused had a different (non-Swedish) culture meant that his perception of his own actions, which were in Swedish law labelled ‘assault’, were different (Case B 61/89, Sandvikens tingsrätt, p. 7). Moreover, the court added that at the time when the assault took place, the accused felt that his integrity had been violated.1 It should be noted that the judge and the lay judges who participated in making this decision were all Swedes and the court had not called for any independent expert opinion on Kurdish customs and traditions.
This ruling was met with protest from several quarters. Lawyers and the judiciary questioned the relevance of the assumed cultural background of the accused for sentencing, while various women’s associations and interest groups highlighted that the ruling legalised violence against women. Immigrant associations, each in their own way, regarded the wording of the judgement as a threat to the precariously balanced ethno-cultural relations in the country. In an article in the editorial pages of one of the morning newspapers (Svenska dagbladet, 19 January 1990), Ingrid Fredriksson, the chairperson of the Conservative Women’s Association in Malmö, asked if Swedish women married to foreigners, from that point onwards, were to be subjected to a different set of legal rules than those under Swedish law. Also, many Kurds challenged the court’s interpretation, arguing that violence against women was not, as it was implied in the judgement, a part of their custom (during the 1980s, few people had heard of ‘honour killing’ among Kurdish immigrants). The prosecutor also criticised the ruling, pointing out that although an immigrant’s cultural background might explain his actions, it could not provide an excuse for assault. Not surprisingly, the Sandviken ruling was appealed and the accused was sentenced to two months’ imprisonment.
The significance of this case lies in the court’s acknowledgement that Sweden was ethno-culturally diverse and that the recognition of the ‘other’ was unavoidable. What appeared as a progressive step failed disastrously because the ideological structures of Swedish law and legal policy were mono-culturally constructed and not conducive to recognising the ‘other’. The court’s attempt to acknowledge the ethno-cultural diversity of Swedish society thus revealed not only law’s male-centric perceptions of gender relations, but also its ethnocentric images of other cultures.
A final issue concerning this 20-year-old case is that neither in the court’s judgement nor in the public debate that followed the ruling can we find arguments that explain the defendant’s behaviour in terms of his religious beliefs. This is in stark contrast to the way recent cases involving Kurds living in Sweden have been presented and discussed publicly. In these cases, the Kurdish culture is linked to, or defined in terms of, Islam. In a recent case of honour killing we read: ‘The father who is suspected of the crime is a Muslim’, suggesting a causal relationship between Islam and honour killing.2 This demonstrates how religion, or more specifically Islam, has recently become an ethnic signifier in public debates. However, this religious marker of ethnicity can function meaningfully only as long as one works with a monolithic conception of Islam, in other words, as long as one regards Islam as a system of immutable principles which produce a uniform set of social practices across cultural, linguistic and national boundaries. It is noteworthy that a similar monolithic conception of Islam and Muslims also informed the Bolsheviks and the British colonialists’ understanding of the religious and cultural practices of the natives. In addition, since 9/11, the public debate on Islam has been shaped by the paradigm of the ‘clash of civilizations’, according to which Islam poses direct threats to Western civilizations and the spirit of democracy (cf. Huntington 1997).
1.3 Incorporating Aspects of Sharia into UK Law
In a lecture delivered to the Royal Courts of Justice in London on 8 February 2008, the Archbishop of Canterbury, Dr Rowan Williams, argued that the legal system in Britain needed to engage constructively with the religious concerns and motivations of members of the diverse communities which make up contemporary British society. There are some 1.6 million Muslims currently living in Britain (2.7 % of the total population), many of whom use Sharia law in matrimonial and private law-related matters to settle disputes. Yet, the decisions of Sharia courts are not recognised by UK law. In his lecture, the Archbishop argued that UK law should incorporate parts of Sharia into its corpus. He further pointed out that the accommodation of aspects of Sharia being placed into the law was ‘unavoidable’ and would, in his opinion, enhance community cohesion by making various religious minority communities part of the public process.
In an interview with BBC Radio 4, ahead of his lecture, Dr Williams explained that the recognition of certain aspects of internal laws of various religious communities by the British legal order could not be rejected casually as impossible, because there were already instances where UK law recognised the internal law of religious communities. Jewish courts, for example, already operated in Britain legally because there were ‘modes of dispute resolution and customary provisions which apply there in the light of Talmud’ (Williams 2008). The Archbishop made it clear, however, that he did not advocate the indiscriminate adoption of all aspects of Sharia, and neither did he condone the inhumane way in which it had been interpreted and enforced in certain Islamic states through extreme punishments and the oppressive treatment of women. UK law was in such a strong position in relation to Sharia to allow it to provide the right of appeal and the necessary safeguards against possible extreme and inhumane interpretation and the application of Sharia. The Archbishop added that Britain did well to avoid situations where the law challenged ‘religious consciences’ over issues such as abortion and treated them as a secular matter, saying ‘we have no room for conscientious objections’ (Williams 2008). Neither did Britain want a situation ‘where, because there’s no way of legally monitoring what communities do, making them part of public process, people do what they like in private in such a way that becomes a way of intensifying oppression within a community…’ (Williams 2008).
Despite these clarifications, most headlines run by both the broadsheet and the tabloid press suggested that the Archbishop was advocating the introduction of the whole of Sharia law to Britain. Even liberal newspapers such as the Guardian carried the headline: ‘Uproar as archbishop says Sharia law inevitable in UK’ (Guardian 8/2/2008). One of the free London papers (thelondonpaper 8/2/2008) wrote on its front page:
Dr Rowan Williams said the adoption of elements of Islamic Sharia law – which includes all women wearing burkhas – in the UK seems unavoidable.” He hopes a “constructive accommodation” in areas such as marriage which could allow Muslim women to avoid Western divorce proceedings.
The Archbishop was criticised by the British Government, his own church and the representatives of other religions, including the Muslim Council of Britain, Liberal Judaism and other organisations. The British prime minister’s spokesman swiftly distanced the Government from the Archbishop’s proposal by declaring that British law had to be based on British values and ‘Sharia could not be used as a justification for committing breaches of English law, nor should principles of Sharia be included in a civil court for resolving contractual disputes (Timesonline 5/3/2008). Similarly, the Conservative Shadow Minister for Community Cohesion stressed that ‘All British citizens must be subject to British laws developed through Parliament and the courts’ (Guardian 7/2/2008). Britain’s only Asian Bishop, the Bishop of Rochester, went further, by pointing out that it would be impossible to introduce Sharia into the corpus of UK law because ‘English law is rooted in the Judaeo-Christian tradition’ (Timesonline 5/3/2008). Dr Williams’s predecessor, Lord Carey, who does not usually directly criticise the Archbishop, made an exception in this case, stating that ‘… there could be no exceptions to the laws of our land, which have been painfully honed by the struggle for democracy and human rights’, adding, ‘acceptance of some Muslim laws within British law would be disastrous for the nation’ (Independent 11/2/2008). Finally, two members of the General Synod in London called for him to resign, whilst other senior figures agreed with the remark that ‘Dr Williams’s standing as the [Anglican] Church’s worldwide leader had been diminished’, thus making it difficult for him to resolve other disputes within his church (Independent 11/2/2008).
The Archbishop’s lecture, published on his website, amounts to a 7,000-word long paper, in which he tries to ‘… tease out some of the broader issues around the rights of religious groups within a secular state, with a few thoughts about what might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom’ (Williams 2008). His overall approach is pluralistic. His message is based upon the assumption that we all possess overlapping identities and that the ‘membership of one group’ should not restrict our freedom as a member of other groups (Williams 2008). The sources which the Archbishop uses in his paper to argue his case consist of the works of reformist Muslim scholars who wish to bring about what amounts to the reformation of Islam. Sharia, admittedly, does depend on the Qur’an for its legitimacy, but as the Archbishop argues:
[I]t is to some extent unfinished business so far as codified and precise provisions are concerned. To recognise Sharia is to recognise a method of jurisprudence governed by revealed texts rather than a single system… [A]n excessively narrow understanding of Sharia as simply codified rules can have the effect of actually undermining the universal claims of the Qur’an. (Williams 2008)
One interpretation of this notion is that the Archbishop is suggesting that by engaging with Sharia, which is currently operating within certain (but not all) Muslim communities in Britain, in a constructive fashion, and by recognising its already functioning courts, one could support the reformist movement in Islam. However, the angry reactions sparked by this suggestion revealed that the media and other interest groups and organisations in Britain were not concerned with having a ‘constructive’ dialogue with anyone related to or representing the Muslim faith. Instead of asking if such incorporation was feasible legally, if such a step would support the reformists to introduce a new interpretation and practices of Sharia, which were in line with the democratic underpinnings of English law, and if it would strengthen the community cohesion as suggested by the Archbishop, the general tendency was to reject the proposal as ‘impossible’ (Telegraph, 9/2/2008), denounce it as ‘the pitiful contortions of a dying Church’ (Independent 11/2/2008) or dismiss it as an idea which, if implemented, would lead to ‘all women wearing burkhas’ (thelondonpaper