Religion, Law, and Secularism in the UK

In modern nation states numerous times the religion and law have come at loggerheads against each other. The more the importance of religion and faith has waned the more we have seen the number of litigations ending up in intense arguments in the courts. The subject of religion operates in the society in regulating and modifying different agents. The identification of religious tropes helps us to be aware of the charitable comportment of the religion and the associated benefits of it in the society. UK and Wales have a long-established religious system which has its very own authoritative set of doctrines and practices. It is nevertheless difficult to conclusively say a system of faith as religion in the absence of scholarly methods. In the UK religion acts as a distinctive reference, which is used to organize society. It invariably has a binding character, but also sometimes it prejudices against people of a particular system of faith and practices. These instances of prejudice have made apparent the distinction of secular and nonsecular in the UK and the need for specific legislation to address the issue. Tensions always subsist between religious and secular perspectives; however, we also find some consensus between them. Maybe that is convenient for these two perspectives to stay afloat in civil life and earn validation. This consensus helps both to avoid litigation and craft ways to avoid disputes. Progressive context of multiculturalism seeks to address the helplessness of minority groups in relation to the centralised state and of individuals within those groups whose interests may collide with those of dominant people of the group. The rift between the religious and the secular has been generally perceived to be greater than that between religious faiths - and is certainly more vociferously expressed. We know the commonly accepted views about secularism as the separation between Church and the State. It is respectful towards every religion and privileges none. However, it may privilege one religion over the other provided the approach has legal backing, or there is enough legal resource to back up this approach- indeed for safeguarding the interest of the minority groups.

The aversion towards secularism is also partly noted by people's confusion with atheism. We may note that in rejection of conventional strands of religious religious systems. The law here is the best guarantor of the people to either practice religion or stay free from the clasp of religious system by choosing not to subscribe to any available system of faith. There is wide consensus that courts and tribunals should analyse justification for restrictions on the manifestation of religion or belief using sociological arguments based upon the context of the case, rather than arguments about whether, for example, particular practices are prescribed by a religion or belief. This does not hinder legal review of the nature of beliefs and practices, but becomes aware of the inherent difficulty for secular courts in adjudicating doctrinal matters. Courts have traditionally been careful not to make determinations on matters of belief or practice. However, some experts suggest that in both Article 9 and religious discrimination cases, the courts' previous reticence has given way to a greater willingness to adjudicate disputes that affects matters of doctrine. The inclusion of religion alongside other protected characteristics in the Equality Act, 2010has stretched legal concepts in often uncomfortable ways. One effect has been to enlarge conflicts - especially between the religion strand and sexual orientation - which might not otherwise have become so apparent. Cases concerning tension between religion and sexual orientation have been the most contentious. Law of the Church of England is the law of the land, its daily operation is in the hands of authorities to whom considerable independence is granted. Beyond the particular issues that crop up in relation to the practicalities of delegation, there are large questions in the backdrop about what we expect from the law, questions that are more focused than ever in a largely secular social environment. There is anxiety in the people about the position of the Muslim in the society of UK and Wales. One perspective is floated that Muslim communities want to live under the Sharia law and for which they would need necessary freedom. But the amusing thing is the problem associated with Sharia is openly admitted by Muslim scholars. 'In the West', writes Tariq Ramadan in his ground breaking Western Muslims and the Future of Islam, 'the idea of Sharia calls up all the darkest images of Islam...It has reached the extent that many Muslim intellectuals do not dare even to refer to the concept for fear of frightening people or arousing suspicion of all their work by the mere mention of the word'(p.31).

In big contrast to what is sometimes, there is no such conflict between two rival legal systems when we discuss Islamic and British law. The governance of the UK and Wales does not promote this conflict Sharia depends for its legitimacy not on any human decision but on the conviction that it reflects the mind of God; on the other, it is to some extent unfinished business so far as codified and precise provisions are concerned. The law makes way for the liberal approach where different doctrine systems can exist together with their distinctive visions and work for humanity. There is a lack of clarity about the relationship between, on the one hand, protection for the manifestation of religion or belief under Article 9 and, on the other, protection against direct and indirect discrimination under the Section 6(8) of Equality Act 2010.In the international sphere the protection against persecution afforded by Article 9 of ECHR. In the domestic context, the preoccupation is with discrimination that stems primarily in the context of social exclusion. These differences often fade out in domestic public discourse. This, there is a need to distinguish more clearly those situations that are most properly addressed on the basis of freedom of religion or belief and those that are best addressed on the basis of non-discrimination. This will also increase understanding of the debate being framed by some Christian sections of people, which cites the deployment of equality law in some instances as a form of religious persecution. In the UK the right to freedom of religion is protected by the Human Rights Act, 1998 and especially Section 9 of the Act. The drift in law is clear: a change in affiliation to historic churches as the maker of the law of governance; an approval by the modern law to those asssertung that they have no religion; and (particularly in England) an increase in faiths associated with immigration, especially Islam. Other trends are apparent: for example, the greater importance attached to their religion by minority religious communities compared to those that state a Christian affiliation. In terms of discrimination on grounds of religion, there is one dominant tendency. The greater prevalence and seriousness of discrimination against Muslims compared to other groups defined by their religion. In recent years, there has been an increase in concerns and claims relating to perceived discrimination against Christians; however, there is not much we get to substantiate such perceptions. The progressive notions of multiculturalism seek to address the powerlessness both of minority groups in relation to the state and of individuals within those groups whose interests may collide with those of dominant members of the group. Such an approach respects individuals’ membership of a cultural or religious community, whilst also recognising the internal diversity of most such communities and ensuring that all their subjects are able to be full citizens of a liberal political society and enjoy full equality before the law.

There were a number of sharia councils in England and Wales that helped Muslim communities to resolve civil and family disputes by making recommendations by which they hoped the parties would abide; but they are not part of the court system in this country and have no means of enforcing their decisions. If any of their decisions or recommendations are illegal or contrary to public policy – including equality policies such as the Equality Act 2010 – or national law, national law will prevail all the time, every time. That is no different from any other council or tribunal, whether or not based on sharia law. But at the same time the UK and Wales legal system do not prevent individuals from seeking to regulate their lives through religious beliefs or cultural traditions; and provided that activities prescribed by sharia did not contravene the law of England and Wales, there was nothing to prevent people from living by it. There is no universal definition of religion under English law. Different definitions have been developed by courts in relation to different religious rights. However as said earlier the Human Rights law of 1998 protects the religious freedoms of the citizens of UK and Wales and promote the notions of multiculturalism in the social life.

(a)What was the main reason for their adoption of the common law system?

Quebec, the second most populous province of Canada, and one of the thirteen provinces within territories of Canada, passed a symbolic motion in the House of Commons of Canada to recognise Quebec as a nation within the territories of United Canada. Presently, Louisiana is a State of common law country United States. Tilliam Charles Cole Claiborne, the Governor of Louisiana, in 1803, initiated to introduce common law into his territory. However, it was said that there was a failure at attempting the plan as the people of unhappy and unsatisfied with the way Congress has given arbitrary power to the President and its officials and they could not trust a law system where judicial decisions had to be regarded as law. In 1825, The Louisiana Civil code of 1825 was drafted and published in two languages I.e., French and English (official languages of Louisiana back then). According to Professor Oppenheim, it became difficult for Louisiana to not operate as per the common law, as the French tradition’s influence started to fade away. In the present situation because of the American Federal law as guaranteed by Article 6 clause 2 of the United nation’s Constitution (that says, establishes that the constitution federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thus take priority over any conflicting state laws) common law has replaced the civil law. To justify the statement, there can be concluded with three examples: first, that to be a judge in Louisiana, one has to pass by various examinations, must possess an intimate knowledge of Civil law and Common Law. Second, if a case is transferred to the Supreme Court, it is decided by the common law judges. During the Battle of Qubec in 1759, the British (ruling under General James Wolfe 1727-59) won a dramatic victory over French forces (ruling under Louis Joseph de montcalm). After seven years of war, in 1763, it ended with the signing of treaties of Hubertusburg and Paris in February 1763. Where, in the Treaty of Paris, France lost all its claim to Canada and gave Louisiana to Spain, Britain received Upper Canada and other French holding overseas. While signing the royal proclamation of 1763, the portion of Canada within the new France territory named ‘Province of Quebec’. Further, the province was later divided into two parts: upper Canada and Lower Canada, by the Constitutional Act, 1791. Through this Act, English Common Law was introduced for the governance of Upper Canada (Province of Quebec). This way, Province of Quebec adapted common law. But, later to that, there has been a brew of both civil laws and common laws in the province of Quebec.

For instance, under Sec 91 (26) of the British North America Act, 1867, Marriage and divorce fall under federal jurisdiction. Where, marriage ceremonies are according to Quebec Civil Code where divorce proceedings may apply federal laws and regulations and common laws.

b) Critically discuss the extent to which their legal systems mirror the common law system of England and Wales.

The common law system refers to as the uncodified laws which are based mostly on precedents, i.e., on the previous judgements that have been passed and the previous decisions taken by the Court in this regard. The legal regime existing in Quebec is one of a kind, in which the base for the Quebec law, the roots are in Napoleon Law and the civil laws. But it remains an undeniable fact that the legal system in Quebec is influenced by both civil laws and common laws as are existent in the land of England and Wales. In 1766, the Governor created a “bijural” system in Quebec by an order requiring that juries be composed of British born subjects in civil actions among British born subjects and that juries be composed of ‘Canadians’ in civil cases involving only ‘Canadians’. Where cases involved British subjects and ‘Canadians’, upon request, juries could be comprised of equal numbers. The practice dictated that the Common law was taken into consideration in cases where there was federal jurisdiction and the federal Parliament had legislative competence. The Quebec Act, 1774 is a Common law Act which provides for the practice of existing French laws to be made applicable in the province of Quebec. The complete Canadian legal system actually consists of two legal systems –the civil code of Quebec and the common law of the other nine provinces and three territories. Louisiana, on the other hand, may be described as to consist of a hybrid of Civil law which draws its origin in the French laws, and the Common law practices which are derived from England and Wales. It is the only state out of the 49 states of the United States to be governed by Civil law. It can be argued that the heart of the legal system in Louisiana is composed of the Common laws as are in practice in England and Wales, and consists of an outer cocoon of French Civil laws. The Common Law element of the State is similar to the law followed by the rest of the 49 states of the United States, while the colonial past of the state contributes to the adoption of the Civil laws as a part of the jurisdiction of the state. "The Revised Civil Code of the State of Louisiana" was adopted in 1870 and it stated that the law in cases of conflict between the Common law of England and Wales, and the Civil laws that were adopted from the French Colonisation, the Civil laws would be upheld by the judicial systems.

At the present time the principal sources of law in Louisiana are the Constitution and laws of the United States, the decisions of U.S. courts, the state Constitution, the respective state codes, statutes and ordinances as well as decisions of the Louisiana state courts. The judicial system of Louisiana is that it consists of a Supreme Court which deals mostly with writ applications of lower courts, and five Intermediate Appellate Courts, such circuit courts of appeal which deals with civil and criminal appellate cases. At the trial level, it consists of courts with general jurisdiction – the various District Courts, special jurisdiction – juvenile courts and family courts, and limited jurisdiction- the Parish. The Common law Court system in England and Wales is that it consists of the Supreme Court (formerly the House of Lords) and the Judicial Committee of the Privy Council as the Apex appellate court, the Court of Appeal is the High Court, the Crown Court and County Courts and the Magistrates’ Courts and the Tribunals Services.

c) Critically discuss what, if any, are the other major legal influences in those jurisdictions.

Quebec saw a number of instances where federal law upheld the Civil laws in many circumstances, for example, in Quebec North Shore Paper Co. v. Canadian Pacific (1976) involving an alleged breach of contract to construct a marine terminal as part of a larger contract for transportation of newsprint from a paper manufacturing plant in Quebec to locations in the United States, the Supreme Court held that a lower court (Federal court) could not constitutionally assume jurisdiction because the case was not governed by any existing applicable federal law. The legal federal competence was totally constrained in this case. The division of powers to the effect of unhindered federal competence is described in the Federal Interpretation Act, which consists of words such as ‘extending liabilities to The Crown, Her Majesty, which further implore the effectiveness of the upper hand of the Common law as is prevalent in England and Wales. Louisiana, which may be described as a confluence of civil and common law legal tradition, has the legal system infrastructure which is more bent towards the common law type. Its legal institutions—the structure and competence of the courts, the relationship between the courts and the legislative organs, the integrated character of the legal profession and the system of legal education—follow the traditional common law approach. The laws relating to the public law components of Louisiana’s substantive law, i.e., constitutional law, administrative law, criminal laws, etc blend the properties of American common law along with the common law principles of England and Wales, from which the former are derived, and also, with constitutional principles and regulatory laws. On the other hand, the State also follows the Napoleonic Code as its civil laws which finds most of its application and implementation in substantive rules which are embodied in the civil rules of the State. The civil rules include laws relating to matrimony, commerce, laws of persons (family laws), laws of property, laws of obligation, laws of succession, etc.

The States of Quebec and Louisiana are anomalies to the nations which they represent in terms of their legal structures and systems of justice they provide to their residents. They invoke confusion to the interpreters of law who try to generalise their legal traditions to be similar to the other parts of their nation.

BIBLIOGRAPHY

Law and religion, Russell Sandberg, Cambridge University Press, 2011, Retrieved on 7th March, 2021

Suzanne Owen, Teemu Taira, Religion as a Category of Governance and Sovereignty, 90-114, 2015, Retrieved on 7th March, 2021

John R. Bowen, How Could English Courts Recognize Shariah?, University of St. Thomas, Law Journal, Volume 7, Issue 3, Spring 2010, Retrieved 7th March, 2021 from < ir.stthomas.edu >

The Archbishop of Canterbury and shariʽa law. (2013). In R. Griffith-Jones (Ed.), Islam and English Law: Rights, Responsibilities and the Place of Shari'a (pp. 7-8). Cambridge: Cambridge University Press., Retrieved on 6th March, 2021

E. Fabre, Louisiana Law Review, Volume 1 Number 4 May 1939, The Civil Law in Quebec and Louisiana, Retrieved on 7th March, 2021

Equality Act 2010