Maleiha Malik

Minority Legal Orders: Accommodating Religious Law in Western Democracies

Maleiha Malik-Professor of Law, School of Law, King's College, University of London, maleiha.malik@kcl.ac.uk

The paper argues that Western democracy, such as the UK, has a responsibility to consider the rights and needs of those from minority groups who want to make legal decisions in tune with their culture and beliefs; it also has a responsibility to protect those "minorities within minorities" who are vulnerable to pressure to comply with the norms of their social group.

Keywords: religion and law, legal pluralism, religious minorities, democracy.

The article was sent to the editor by the author. A more detailed analysis is contained in the full program document of the British Academy: Minority Legal Order: Minorities, Pluralism and the Law (London: British Academy, 2012) ["Legal regime of minorities: minorities, pluralism and the law"], which is presented here in a slightly modified form.

The author expresses his gratitude to all those who contributed to the development of the project "Legal regime of Minorities: minorities, pluralism and law", including the Coordinating Council of the British Academy, and all those who advised and helped determine the subject of the study, as well as to all participants of the forum that discussed the first version of the project in September 2011.

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The topic of religious law and religious courts has been the subject of much debate in the UK in recent years, but the question of how the state should respond to religious minorities, whose traditional way of life includes "law-like "norms and" law-like " religious institutions, has also become important for other Western democracies, which are becoming increasingly independent. increasingly multicultural and multireligious. In the United Kingdom, Archbishop Rowan Williams ' statement in February 2008 that certain legal norms of religious communities, such as British Muslims, could be incorporated into State legislation was a catalyst for subsequent public discussions. This statement was followed by public condemnation of Islamic (Sharia) legislation and "decontextualization, distortion and misinformation" .1 Since the events of September 11 and July 7, public discussions about religious legislation have focused specifically on Islamic law (sharia) and Muslims. Muslims are often portrayed as an aggressive threat to liberal democracies because they want to unilaterally impose their values on the majority. This view is fueled by the widespread stereotype that Sharia law is associated with severe criminal punishments such as stoning women or amputating limbs, sometimes practiced in some Muslim countries.2 Although these extreme examples apply to foreign countries, they continue to have a significant impact on the domestic debate. In this context, religious law and religious courts have been misrepresented as "parallel legal systems" that pose a sinister threat to liberal democracies. In fact, the topic of minority legal regimes requires a sober analysis, without fears and value judgments directed at Muslims, and outside the discourse of the "war on terror".

1. Moore, K., Mason, P. and Lewis, J. (2008) Images of Islam in the UK: The Representation of British Muslims in the National Print News Media 2000 - 2008, p. 32. Cardiff School of Journalism, Media and Cultural Studies, Cardiff, 7 July 2008.

2. Ibid., p. 32 - 34.

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1. What is the legal regime of a minority?

A religious community has a "minority legal regime" (PFP) when its mode of existence includes some aspects that we often associate with the law and the legal order. There are two aspects to the definition of PFP: first, specific cultural or religious norms, and second, some systemic features that suggest that there is a specific institutional system for defining, interpreting and implementing these norms. Whether or not a community has an OFP is more of a degree assessment than a well-defined question.

For some religious minorities, " law " includes specific rules governing individual and social behavior within communities. Different cultural groups, and especially religious communities, may have different ideas about what is meant by "right"in their own traditions. In some cases, there are no conflicts or tensions between the self-awareness of these groups as having a "right" and the State's claim to the sovereignty of the national legal system. Moreover, the claim of a certain cultural group that it has a "law" or a "legal system" does not necessarily have to be considered a threat to the power of the State; such a claim is not in itself a claim to political or legal authority. Many of these cultural and religious groups do not seek to compete with the State, influence public policy or the social structure of the entire political community. In most cases, the claim of a cultural or religious minority to the possession of a "law" or "legal system" is strictly limited to the concern of the group members to establish and preserve their cultural, religious and ethical practices for a certain period of time. For example, a group can create rules for entering into and terminating marriages within its community, without trying to impose these rules on other citizens. This concern for cultural preservation, however, raises the question of control over individuals within these communities. Where these cultural and religious traditions cause harm to individual members within a group, the State may find it justified to intervene to ensure individual constitutional or human rights.

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The use of the term "law" in the context of religious law is a subject of constant debate and controversy. In some cases, the State legal system may recognize or introduce norms of the legal regime of minorities, with the subsequent transformation of these norms into law in the usual sense, since they become part of the official State legal system. On the other hand, some individuals or groups (for example, Jews or Muslims) may consider themselves to have a special "law" or "legal tradition". In such cases, the concept of "law" may be very different from the State law.

(a) The law in the legal regime of minorities

The assumption that a cultural or religious community can have its own law or legal regime causes fear and concern in society. However, this fear is misplaced, because the law and legal regime in this context are related to the relationship of the minority to the majority or to State power. In terms of political power, a State is a sovereign legal system. Other forms of normative social regulation (promotion of certain shared values or standards of behavior) that exercise power over individuals ' lives are "subordinate" to legal regimes or" minority legal regimes": they are subject to regulation within the State legal system. However, there are situations where PFP has more legitimacy and power within the religious community than State legislation. PFP can include a variety of traditions, but this internal pluralism can be hidden from external view, when the most influential forces within the community make some kind of prescription, which is then issued as the only possible, authentic and legitimate norm. It should be noted that PFP in the UK mostly accepts the supremacy of the state system, and communities actively interact with the state. Therefore, in most cases, we can call PFP "subordinate" legal regimes.

The legal regimes of minorities include both legal norms to which an individual or group can refer, and certain mechanisms for their institutionalized application.-

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changes. Legal norms define how individuals should behave, as well as the consequences of non-compliance. In contrast to the State legal system, the PFP may not initially be organized as a system with a central mechanism for securing power and imposing sanctions. The legal regime of minorities may allow for diversity, since it does not have a full control mechanism and, unlike the State legal system, it does not have a monopoly on the use of coercive force to enforce the rules. PFP, however, may involve communication within the group, which is also an important aspect of legal effectiveness. Moreover, in some cases, PFP norms can be organized into a reasonably ordered institution of a dynamic and systematic nature, with sufficient stability and sustainability necessary to ensure that social norms are defined, modified and enforced. Thus, there is something similar to the legal order. If there is some mechanism, albeit informal, for resolving disputes about legality, interpretation, and enforcement, then this institutional aspect is most likely indicative of the existence of a minority legal regime.

Thus, PFP has two aspects. First, we must take into account the key norms of the religious minority itself. Second, we must take into account whether there is a sufficiently coherent institutionalized order in place in this community to ensure that these norms are identified, modified, and enforced. In order to classify them as PFP, the norms must be sufficiently different (from the standard ones), widespread and specific, which makes it possible to distinguish them from the sum of social relations. In some cases, there may be a moral code that establishes control through social pressure or the threat of ostracism. However, to become a legal regime, this system of norms needs some additional mechanism for exercising power. The presence of these two aspects makes it possible to classify certain types of social phenomena as the "legal regime of minorities". This definition includes the full range of specific patterns of social behavior organized in a coherent, institutionalized order that allows the group to recognize itself as having "the law." However, this definition allows you to exclude from the concept of "mode"

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a set of vague regulatory mechanisms, even if their adherents insist that they are "the law." It is possible to consider a scale in which the forms of the legal regime of minorities vary from the most clear-cut, demonstrating almost all the characteristics of State law, to less strict forms of social control. Whether there is a legal regime for minorities or not is more a question of where we are on the scale.

(b) Legal treatment of a minority

Hierarchical sovereignty of State legislation and subordination of all other legal regimes within the nation-State is the only way in which the State can consolidate its power and national unity, especially in relation to minorities. The development of unified state legislation was the most important aspect on the way to the formation of a national state. This desire for unity and centralization of power may contradict the real state of affairs, in which the state is not always able to control the normative behavior of individuals and groups within its jurisdiction. Nevertheless, in terms of political power, the State is a sovereign legal system, while other forms of normative social regulation that exercise power over the lives of individuals are "subordinate". The use of the term" minority " in this context means that, despite the fact that norms related to minorities co-exist with State legislation, they are completely subordinate. In the United Kingdom, State legislation is the official legal rules that are put into effect by the legislative and judicial authorities. The legal regime of minorities refers to those norms and systems that do not derive from legitimate sources of political and legal power of the State, such as Parliament and the Supreme Court of Great Britain.

In some situations, the State legal system may be stronger than the legal regime of minorities, which makes it easier to ensure compliance with the State legal system. However, there are other situations in which the legal regime of minorities has more legitimacy and power within the community than State legislation, regardless of the legal status of minorities.-

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despite the formal sovereignty of the latter. Despite the persistent desire for unity, control, centralization and uniformity of State legislation, there will always be areas of social life with different, non-State regulatory systems in the form of minority legal regimes.

Like the pluralism of normative regulation within the nation-State, there is also diversity within the minorities themselves. This pluralism can be institutionalized. For example, although Jewish and Islamic law may seem like established systems, in reality there are a large number of different institutions within Jewish and Muslim communities.3 In addition, this pluralism can provide a significant choice between different regulatory requirements, each of which can be considered part of the PFP. For example, the relationship of a minority legal regime to marriage and divorce may seem clear to an outside observer. However, in reality, there may be a choice in the rules and regulations that the PFP applies in specific cases.4
Often, however, this internal pluralism can be masked by power asymmetries, which allow those in power within the PFP to introduce a regulation that, once developed by the governing body and supported by the main authority, has the character of a single governing norm. However, the same desire for independence and pluralism that motivates a liberal State to recognize PFP also justifies the State's support for the right to choose and pluralism within PFP.

(c) Which minorities?

In every Western democracy, there are religious minorities that maintain a non-State legal order. In the case of Great Britain, we can cite the example of the Jews. Jews have lived in Great Britain since about the 11th century.

3. Douglas, G., Doe, N., Gilliat-Ray, S., Sandberg, R. and Khan, A. (2011) AHRC Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts, p. 42. Cardiff, Cardiff University.

4. Ibid.

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Jews, like Muslims, are committed to their own special legal tradition, the Law, despite the fact that this "law" differs significantly from the modern concept of state law. Jewish religious rules regarding personal matters of faith are not uniform. Each branch of Judaism has its own rabbinate with its own interpretation of Jewish Law. London's oldest Jewish authority, the eighteenth - century Beit Din, is an Orthodox institution that represents a significant portion of the Jewish community. There are also other Orthodox, ultra-orthodox, and liberal Jewish religious movements that have their own separate governing bodies. A key function of these Beit Din is to control religious divorces according to Jewish law, without which an Orthodox Jew cannot remarry, regardless of whether there is a civil divorce. Despite the fact that the Beit Din controls this process, religious divorce remains the prerogative of the husband. This is different from the situation with Islamic divorces carried out by a religious court, where the religious authority can grant a divorce regardless of the husband's consent. 5
Muslims who shared some common legal views with Jews gradually established their own dispute resolution institutions (usually at local mosques). Such institutions have emerged as Muslims have become an established religious minority, especially in view of the need to regulate family and civil issues. These institutions are sometimes referred to as "Sharia courts". They are not centralized and reflect pluralism within the British Muslim community. "Courts" range from individual reputable individuals to large well-known institutions, such as the Sharia Council of the Birmingham Central Mosque or the Muslim Arbitration Court, which offer dispute resolution based on religious law. Such community-based institutions deal with a wide range of issues, as well as provide general advice, mediation and dispute resolution. These "Sharia courts" are not recognized by State law. Although citizens can voluntarily follow the decision-

5. Jackson, B. (ed.) (2009) Agunah: The Manchester Analysis. Manchester, Agunah Research Unit, University of Manchester.

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In the case of these courts, their decisions will not be automatically applied in State courts. Sharia courts do not have the power to decide on criminal cases. Any person who commits a criminal offense is subject to criminal prosecution in the usual manner, regardless of the decision of the Sharia court.

Jews and Muslims are closely linked to religious law. Moreover, these minorities are biased in society precisely because of their adherence to religious law and because, according to public opinion, they thereby separate themselves from central institutions. In the past, a recurring stereotype about Jews was that their adherence to their own sacred texts and religious law was indicative of "barbaric" practices regarding food intake, animal slaughter, and the treatment of women. 6 The same applies to Muslim communities, especially after the events of both September and July. British Muslims are often portrayed in public discussions and in the media as a dangerous and" barbaric " social group because of their adherence to Islamic legal norms. 7
It was after the events of both September and July that the Islamic " law " began to be perceived by Muslims and non-Muslims as a source of political extremism. However, new groups are also being drawn into this process, which do not have a developed "law" like Jews and Muslims, and whose traditions are rather regulated by custom. One such example is the Roma community, which has existed in Great Britain since about the 13th century. Roma communities avoid appealing to the State and legal structures. They manage conflicts within their communities without recourse to official justice systems, using "gypsy law", which is often applied through informal meetings of clan leaders or the more formal cris-the traditional "gypsy court" for the treatment of children.

6. Herman, D. (2011) "An Unfortunate Coincidence": Jews, Jewishness and English Law. Oxford: Oxford University Press.

7. Moore, K., Mason, P. and Lewis, J. (2008) Images of Islam in the UK: The Representation of British Muslims in the National Print News Media 2000 - 2008, pp. 32 - 34. Cardiff School of Journalism, Media and Cultural Studies, Cardiff, 7 July; Bamforth, N., Malik, M. and O'Cinneide, C. (2008) Discrimination Law: Theory and Context, Ch. 12. London: Sweet and Maxwell.

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conflict resolution 8. The Hindu and Sikh communities also have a normative social framework that provides for internal consultation, interpretation, and decision-making. The Hindu Council of Great Britain has an online advisory service called "Ask a pandit" that explains Hindu rules. In addition, there are panchayats in the Hindu and Sikh communities that deal with a wide range of public and consultative issues.

2. The legal regime of minorities-past and present

(a) The "past" of legal pluralism

The new experience of cultural diversity associated with twentieth-century migrations has made minority legal regimes a real problem. However, as Brines points out. Based on the work of legal historians such as Raoul van Kaneghem, Harold Behrman, and Walter Ullmann, minority legal regimes are not a new phenomenon:

[ ... ] the Middle and late Middle Ages were characterized by an incredible mixture of different laws and institutions operating in the same space, sometimes conflicting, sometimes complementing each other and, as a rule, having no hierarchy or organization. These forms of law included local customs (often in different versions, usually oral); commercial law, or lex mercatoria-commercial rules enforced by merchants; canon law of the Roman Catholic Church, and revived Roman law developed in universities.9
It is noteworthy that in the past, each individual judge had great flexibility in resolving disputes, applying different legal rules depending on the nature of the dispute and relying on different regulatory frameworks. In some cases, based on the "personality principle", it may have been possible to take into account the first person.-

8. Weyrach, W. O. (ed.) (2001) Gypsy Law: Romani Legal Traditions and Culture. California: University of California Press.

9. Tamanaha, B. Z. (2008) "Understanding Legal Pluralism: Past to Present, Local to Global", Sydney Law Review 30: 377.

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the rest was the identity of the litigants, so that the judge could apply different laws depending on whether the person was a Frank, Burgundian, or descended from Roman Gauls. In Europe, therefore, "legal pluralism has shown itself along at least three main axes: overlapping legal bases associated with different geographical areas; co-existing institutionalized systems and conflicting legal norms within the same system " 10.

This historical experience calls into question the dominant approach to law in modern nation-states as a unified centralized system. The Ottoman system of "millets" is often used as a historical illustration in favor of the pluralism of legal regimes that coexist with the state within a single political community. Another example is the European historical experience, which also confirms that minority legal regimes can co-exist with State legislation.

The principle that the law should be "one for all" is the basis of the modern project of the state. This vision of the nation-state as a single hierarchical legal system is one, but not the only possible way to organize political communities. During the consolidation of the nation-state in the 17th and 18th centuries, the various forms of law that flourished in the Middle Ages gradually disappeared or were absorbed into a single centralized legislative and legal system that spread over vast geographical areas. However, this unified system has not eliminated the diversity of legal norms related to cultural diversity. Legal customs and religious law did not disappear altogether, but rather were pushed into the realm of private life. Their status was transformed by the state legal system from the initially recognized autonomous legal status to norms that are socially significant and applicable, but have a different, subordinate status compared to state legislation. It is important to note that the law itself has undergone a transformation: from a system of norms that reflects and supports the natural order or established tradition, to an increasing understanding of it in utilitarian terms, as a tool for achieving social and cultural goals.-

10. Ibid., p. 378.

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effective goals. In other cultures, concepts of law (natural law or customary law) continued to exist, which were considered to belong to the private sphere, but State law gradually came to dominate this area as the only public expression of what is a legitimate "law" or legal system. 11
(b) Modern challenges: a new diversity

While European history confirms that minority legal regimes have always existed, the current context differs significantly from the historical one. In the UK, there has been a change in the nature of cultural diversity. Despite the fact that the experience of immigration is not new, the scale and intensity of global migration of peoples have become much higher. Moreover, since this migration is taking place from non-Western States to Western ones, it is precisely countries like the UK that are now having to raise and address issues of cultural diversity. While drawing a clear line between" Western "and" non-Western " can be problematic, this distinction is important for analyzing minority legal regimes. The increasing presence of non-Western communities increases the "geographical extent" between State and non-State law. British citizens can resort to non-British legislation in the Middle East, Africa or South Asia to resolve their disputes, thereby increasing the likelihood of" importing " foreign legal norms, or turn to non-state legal systems within the UK. Jews, Christians, and Muslims have well-developed institutional systems for conflict resolution. Not surprisingly, the normative and traditional Muslim religious courts can cite precedents in Pakistan or Malaysia, and the Jewish religious court can cite precedents in Israel. The State's attitude to cultural and religious diversity has also undergone significant changes. During the previous historical periods, the open hostility of state legislation and policy towards-

11. Tamanaha, B. Z. "Understanding Legal Pluralism: Past to Present, Local to Global", p. 381.

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access to certain minorities was considered commonplace. An example is the attitude towards Jews: until the end of the 13th century, Jews had the legal status of royal property, and they were subject to laws that led to their persecution, expulsion, and discrimination. These laws included restrictions on land ownership and on hiring Christians as servants. Jews were also not allowed to pray "within earshot" of Christians, and they could be required to wear yellow identification badges and pay special taxes.12 Herman summarized the effects of government policies during this period as follows:"By the 1270s and 1280's, Jewish communities in England were largely reduced to poverty, forced conversion to Christianity, violence, or exile." 13
Now, however, in the context of a liberal State and the rule of constitutional law and human rights, it is impossible to pursue policies that lead to the persecution, exclusion or discrimination of any minority. This shift means that religious minorities now often claim that some of their own legal norms or legal systems need to be "recognized" or"adapted". One consequence of this is that the State's policy of assimilating minorities into majority norms, especially with the use of force if necessary, may be resisted; moreover, it is now considered acceptable for minorities to require the inclusion of certain cultural and religious practices in the system of State law.

3 " Minority legal regimes in liberal democracy

(a) Selection of minority legal regimes

In the past, State legislation could provide space for the existence of minority legal regimes without constitutional and legal obstacles or public criticism. Now the" liberal " nature of the state

12. Herman, D. (2011) "An Unfortunate Coincidence": Jews, Jewishness and English Law, p. 10.

13. Herman, D. (2011) "An Unfortunate Coincidence": Jews, Jewishness and English Law, p. 10; Moore, R. I. (2007) The Formation of a Persecuting Society. London: Blackwell Publishing.

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This means that it is bound by constitutional norms that protect the individual rights of all its citizens. The UK has a constitutional system designed to protect key individual rights, such as freedom of speech, freedom of religion or belief, and equality based on gender, race, and sexual orientation. This liberal system was created through legislation such as the Human Rights Act and the Equality Act of 2010. The current liberal paradigm is changing the structure of PFP analysis and evaluation, as the question of whether PFP provides individual freedom or equal protection for its members becomes extremely important. A classic example of a related challenge is whether or not the PFP can meet the constitutional guarantees of equality for women.

Some branches of liberal political theory recognize that belonging to a cultural or religious group is important for the well-being of people and for the exercise of their rights, and a liberal State can legitimately provide space for groups and associations to operate. 14 This is the liberal argument for cultural participation, because people are seen as individuals who make choices, not as beings determined by cultural norms; in the words of Anna Phillips, " as active individuals, not as hostages of their culture or robots programmed with cultural codes."15. According to this theory, the key issue is not the empowerment of groups, but rather the recognition that in some situations people can live a more fulfilling life because they belong to groups.

In the past, it was possible to assume that people would remain members of their social group for most of their lives. This could justify the use of the" personality principle " - that is, the application of a legal system or rule based on a person's permanent membership in a cultural or racial group. Now it is increasingly believed that a person has a choice about their identity and group identity.-

14. Kymlicka, W (ed.) (1995) "Introduction", Rights of Minority Cultures. Oxford: Oxford University Press.

15. Phillips, A. (2007) Multiculturalism Without Culture. Princeton: Princeton University Press.

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properties. This choice can be made in many ways. Some may choose to leave their native cultural or religious group, while others may choose to move to another group. Many people prefer to associate themselves with hybrid identities. This diversity implies a flexible understanding of belonging to a cultural or religious group. It also raises difficult questions for minorities themselves: how is belonging defined? do individuals have a real opportunity to participate and not participate? do young people and women have a real right to choose the beliefs and customs of the group? In reality, groups have considerable power over their members. In such situations, the use of group power and influence over people may remain unknown and hidden from public discussion. Conflicts between the normative systems of a liberal State and the legal regimes of minorities are often acute precisely because they make public the abuse of power by non-State actors. In the context of PFP, special attention should be paid tothe right of exit to ensure that citizens do not fall under the control of the minority legal regime without their consent. Naturally, liberal theory recognizes the "right of withdrawal" of people from the community. However, there are more complex situations where individuals want to remain members of the group, but they also want to renegotiate the terms of their membership. In this case, the "right to exit" is not a solution in itself.

(b) "Minorities within minorities"

Some "minorities within minorities" - such as women, youth, the elderly, gays and lesbians-require special attention because they may face social pressures to conform to norms within their social group, but they do not have sufficient power to ensure their interests. Where there is a minority legal order, and especially where it is officially recognized by the state through the system of minority rights or the system of personal law, this social pressure can be even stronger, since refusal to use these opportunities can be interpreted as a sign of disloyalty ("if there are religious rights, the use of the right is prohibited-

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state-given boron may increase the sense of disloyalty"16). Young people born in small groups may face social pressures associated with the need to conform to norms that they would prefer to abandon or that they would like to reconsider. Therefore, the situation of children and young people who might choose not to become members of a minority requires special attention. Ikelaar sums it up by saying that care must be taken, and concludes as follows::

Perhaps we should recognize that at least in most cases (excluding stalking situations) communities don't have special interests as such. But their individual members most likely have them, and they include a desire to pass on their culture to their children. But this desire is limited, and it is limited primarily to the interests of the children of this community.17
When it is said that "minorities within minorities" may be at risk due to the pressure of cultural or religious group norms, it is important to pay special attention to the" multicultural vulnerability " of women. Women are "at risk" because traditional cultures and religions fix their attention on women as a way to control the group and preserve group norms. For example, women's sexuality is often the focus of special attention of minorities, since the latter seek to preserve and transmit their culture or religion, and it is women who reproduce a collective identity through the birth and upbringing of children. From this point of view, it becomes critically important that a woman should enter into intimate relationships in such a way as to preserve the identity of the entire community. For these reasons, the control of women, especially in the areas of sexuality, marriage, divorce and their children, is an essential function of traditional cultural and religious communities.18
16. Ahmed, F. (2011) "Religious Arbitration: A Study of Legal Safeguards", Arbitration 77: 302.

17. Eekelaar, J. (2004) "Children between Cultures", International Journal of Law, Policy and the Family 18 (2): 191.

18. Moller Okin, S. (1999) Is Multiculturalism Bad for Women. Princeton, USA: Princeton University Press.

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Minority legal regimes often focus on family law precisely because these norms control women and ensure the preservation of group identity. There is a particular problem of vulnerability of "religious" women, as they often have no choice but to resort to PFP if they want to obtain a religious divorce ("adherents of certain faiths must apply to a religious court if they want "permission to remarry within their faith")19. This explains why there is such a high demand for religious divorce services among Muslim women.20
There is also evidence that Muslim women use these courts at will, rather than as passive victims who are manipulated and confused by conservative Muslim men. 21 Thus, in many situations, securing freedom for these religious women may require making PFP more "favorable" to women rather than banning it altogether.

It is often claimed that many women choose to remain members of the group, even though the rules and customs of their community undermine their interests. "They have the right to leave, but they voluntarily choose to stay" is the answer to any objection. But this "right-of-way" argument is not always realistic. It offers an overly narrow and radical approach to what is often a systematic or structural problem of traditional cultures and faiths. It puts the burden of conflict resolution on women and relieves the State of its responsibility to protect the fundamental rights of its citizens. Most importantly, the "right of exit" argument suggests that a woman who is threatened by intra-communal practices should break with her group identity, leave her family and community. However, the reality is as follows,

19. Douglas, G., Doe, N., Gilliat-Ray, S., Sandberg, R. and Khan, A. (2011) AHRC Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts, p. 44.

20. Bano, S. (2010) "Asking the Law Question: Agency and Muslim Women", in S. Sayyid and A. K. Vakil (eds) Thinking Through Islamophobia: Global Perspectives. London: Hurst & Co.; Bowen, J. R. (2009) "Private Arrangements: Recognizing Sharia in England", The Boston Review March/April 2009.

21. Glazer, S. (2012) "Sharia Controversy: Is There A Place for Islamic Law in Western Countries", Global Researcher 6 (1): 1 - 28.

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that often emotional attachments, economic circumstances, and religious obligations make leaving the community unrealistic for many women.

Some versions of multiculturalism suggest that the State must unconditionally recognize minorities as they are. On the other hand, "progressive multiculturalism" should return to the basic principles and find an answer to the question: what is at stake in the process of adapting minorities?22 One of the strongest arguments of multiculturalism is that the structure of the power hierarchy between minorities, the majority, and the State should be reviewed. At the same time, the recognition of external hierarchies should not obscure the existence of power hierarchies within groups. Internal inequalities can cause vulnerable individuals (such as women) to pay disproportionately for any policies that adapt cultural or religious practices. This fee may include entering into a marriage without the right to divorce, inadequate monetary compensation in the event of divorce, giving up custody of children, and restricting the right to education, work, or participate in the public sphere. In addition to being members of a cultural or religious community, women in minorities are also full citizens of a liberal political community. Therefore, a liberal State has an obligation to protect female citizens from harm, even if they choose to be members of illiberal cultures or religious communities. Women's consent to participate in PFP requires a more comprehensive analysis that addresses these complex power asymmetries. Although women do opt for group membership, they do not necessarily agree with the choice of group leaders or even the choice of group norms that will apply to them.

The issue of gender equality is often misused to criticize minorities. As Anna Phillips notes, " [ ... ] the principles of gender equality have been used to demonize small cultural groups. Explicit expressions of racism were turned into socially more acceptable criticism of minorities, who were accused of holding their own.-

22. Malik, M. (2010) "Progressive Multiculturalism: Minority Women and Cultural Diversity", International Journal on Minority and Group Rights 17 (3): 447 - 467.

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their women at home, passed off their young daughters as unknown and unwanted partners [...] " 23. This discourse can deceptively portray national minorities as patriarchal, while the cultural majority is presented as a model of gender equality. This risk requires special care to avoid demonizing the PFP. At the same time, the vulnerability of certain individuals, such as women and young children, must be taken seriously. There are also restrictions on consent in these situations, since the State is obliged to take measures to protect vulnerable persons in the event of a risk of significant harm, regardless of whether they voluntarily belong to a cultural or religious group or consent to participate in PFP.

Defining thresholds for "significant damage" can provide a universal criterion for when a State should intervene in the PFP. More agreement can be reached on what constitutes "damage" than is sometimes considered possible. Contrary to popular perceptions, which may be distorted by the demonization of PFP, the State and PFP may agree on what constitutes damage. This consent, in turn, can lay the foundation for the development of principles governing State intervention to ensure the protection of vulnerable individuals within an PFP.

(c) Individuals, groups and the evolution of minority legal regimes

Belonging to groups in liberal democracies is becoming an increasingly complex phenomenon. Constant migrations and mixing lead to the fact that individuals and groups constantly include new elements in their identity, while at the same time preserving the traditional ones. Most attention, for obvious reasons, is paid to established communities that are held together by language, ethnicity, culture, or religion. However, it is now necessary to pay more attention to those individuals who often move from one group to another. Therefore, it is important to understand the impact of policy measures on people who choose to remain members of the same organization.

23. Phillips, A. (2007) Multiculturalism Without Culture, p. 2.

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or another group. This approach is based on an understanding of the dynamics of cultural change within the PFP. How do you define "culture" or "religion"? Who has the right to make decisions? Who is excluded from this process? Will State intervention help protect the fundamental value of individual freedom? Will people be able to choose the leaders who represent them and the norms that govern them? Will decisions be made impartially through discussion and transparency, with the participation of all members, and not by imposing the will and authority of a few people?

It is difficult for outsiders to obtain the necessary information to assess the results of government intervention. Sometimes neglect or poorly thought-out intervention can lead to a tightening of PFP, including in relation to "minorities within minorities". Cultural changes should be monitored at both the individual and group levels. Sometimes members of a group may refuse to change their norms, not wanting to respond to changes or share power. When PFP becomes static, loses its ability to interpret and becomes a marker of group "identity", it ceases to be a dynamic system of normative social regulation that responds to social changes. On the other hand, group leaders can be creative and change the norms of community law to meet the needs of individual members, including "a minority within a minority".

4. Possible State responses to minority legal regimes

A liberal state faced with a minority legal regime can choose one or more of the following approaches, which, however, often overlap:

A. PFP ban. This action seems unacceptable for several reasons. First, the following is essential: PFP, as already mentioned, can be essential for the exercise of individual freedom. In addition, the prohibition policy may not be effective: the state system may simply not have enough power to implement this policy.

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politicians, and the PFP will simply ignore the state, despite the ban.

B. Non-interference in PFP. This can cause problems in situations where the PFP causes significant damage that makes government regulation justified. The "right of exit", as we have seen, is often not a sufficient guarantee for the protection of individual rights within the PFP, especially the rights of the most vulnerable groups, such as women or sexual minorities.

C. Recognition of PFP through granting rights to minorities or creating a system of personal rights. The disadvantage of this approach is that PFP is anchored as a "marker of identity", that is, an institution that resists dynamic cultural changes. This makes it more difficult for people to move between different cultural and religious communities and social spheres.

D. Cultural voluntarism. This approach allows the legal regime of minorities to function, but leaves State legislation free to choose whether and how it wants to recognize and adapt PFP, while maintaining its own liberal norms. The State can identify a number of key issues where the group's "laws" need to be consistent with the State's "liberal" public policy. This will allow you to assess the degree of compliance with each standard separately, and not the entire system as a whole.

E. Mainstream learning goes one step further than cultural voluntarism. It actively supports, incorporates and integrates the social norms of PFP within the State legal system, based on the principle of non-contradiction with fundamental constitutional principles. This can be done through methods such as expanding existing legal concepts, designing legislative solutions, or granting privileges.

The disadvantage of integration is that minorities will have to convince the majority of their fellow citizens that their cultural or religious practices should be included in the State system (accommodated). This is difficult to achieve if minorities do not have enough power and their participation in the democratic process is limited. Integration can only be successful if it is the result of an active collaboration.-

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the State and religious communities, especially if this dialogue concerns specific issues (for example, whether and how the State legal system should recognize religious marriages or divorces). The advantage of this approach is that the majority will feel involved in the process of recognizing PFP, increasing the level of trust of PFP in the eyes of all citizens. Modest concessions of this kind can bring significant political benefits for both minorities and all citizens.

Final comment

Moving towards greater recognition of PFP may have advantages such as greater autonomy for minorities or greater integration of people's private lives with their contacts with political and legal institutions. Notably, the Social Cohesion and Civil Law project, sponsored by the Arte and Humanities Research Council, confirmed that the religious courts that were the subject of the study "provide important services for those Jews, Muslims and Christians for whom religious divorce "with divine sanction" is important both spiritually and physically." from a religious and legal point of view " 24. None of the three courts studied had a legal status and did not seek state recognition. Their authority was based on their religious status and extended only to those who "voluntarily" submitted to and accepted these religious norms and institutions. However, this voluntary acceptance of a religious law cannot be considered as consent to harm, if such consent can result from it. There will still be a need to protect vulnerable individuals who voluntarily participate in the minority legal regime. In increasingly multicultural and multireligious Western democracies, there is an urgent need for a more comprehensive analysis of minority legal regimes.

Translated from English by Elena Bondal

24. Douglas, G., Doe, N., Gilliat-Ray, S., Sandberg, R. and Khan, A. (2011) AHRC Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts, p. 48.

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