Religious courts, tribunals and councils in predominantly secular states : their role in Malta, and England and Wales

Abstract

In today's globalised world, cultural diversity has become a fact to which EuroAmerican societies must respond. A particular challenge is presented by the kind of legal pluralism that has arisen as a result of the activities of individuals and groups within these societies. These have developed their own legal norms based on their religious beliefs and resulting in a situation of ‗inter-legality‘, where numerous legal systems co-exist and overlap within the same state borders. This thesis aims to explore how 'predominantly secular' states should respond to religious legal systems, that are constantly competing with state law. It develops and tests the hypothesis that embracing a particular kind of multiculturalist policy is the most appropriate way to respond to religious/cultural diversity. It is proposed that such states should facilitate diverse cultural and religious groups to operate their religious courts, tribunals or councils within the overarching context of the state. If this policy were to be followed, these adjudicative bodies would themselves have an incentive to respect human rights and gender equality in their decisions in order to ensure that they could be recognised and enforced by the state courts. The thesis evaluates which model of legal recognition of such religious courts, tribunals and councils is most appropriate to achieve the above-mentioned aims; particularly by contrasting the different modalities of recognition in different case studies: the Jewish Beth Din, the Muslim Arbitration Tribunal and the Islamic Sharia Councils in England and Wales, and the Ecclesiastical Tribunal in Malta. It concludes that the English model is preferable due inter alia, to the limited and a posteriori character of the recognition it provides and the way it places the onus equally on both the secular and the religious courts to work towards mutual recognition of their respective decisions.