Studies in Law, Politics, and Society: Volume 79
Table of contents(8 chapters)
Section I Law and Religion
Legal and philosophical scholarship on religious education typically focuses on religious schools that challenge core liberal values. Religious schools that offer their students quality secular education, and whose religious character is mild, do not raise these concerns and have therefore evaded scrutiny thus far. This chapter argues that the latter kind of religious schools, which I call “creaming religious schools,” may have a negative effect on educational equality and should therefore be subject to restrictive legal regulation. The negative effect on equality is caused by the fact that when successful, these schools appeal not only to members of the religious community but also to non-member high-achieving students who leave the public schools (a process called creaming) thus weakening them. The chapter argues that the harm caused to public schools cannot be redeemed by alluding to the right to religious education because the religious justification for creaming religious schools is relatively weak. The chapter then examines several potential legal measures for contending with creaming religious schools: the antidiscrimination doctrine, which the chapter rejects, showing that it actually aggravates creaming, locating schools in disadvantaged neighborhoods, restricting tuition, reflective enrollment policy, and finally, the total prohibition of establishing creaming religious schools.
The 2015 Obergefell v. Hodges decision accomplished more than the national legalization of same-sex marriage; it also laid bare a deep rift among US Supreme Court justices over the question of whether and how religious objections to same-sex marriage should be accommodated in this new era of marriage equality. This chapter will explore the rift revealed in Obergefell between the Court’s differing conceptions of religious free exercise and will highlight the ways in which this legal dispute was translated into a forceful mode of conservative religious activism in the buildup to the groundbreaking 2016 election.
The religious tradition of male circumcision has come increasingly under attack across a number of European states. While critics of the practice argue that the problem is about children’s rights and the proper relationship between secular and religious traditions, Jews tend to see these attacks within the longer history of attempts to assimilate and remake them according to the norms of the majority. Using the 2012 German legal controversy concerning the issue as my vantage point, I explore how contemporary criticism of male circumcision remains entangled with ambivalence toward Judaism and the Jews as the “other.” Through a close reading of the arguments, I show how opponents use the seemingly neutral language of universal human rights to (re)make Jewish difference according to the norms of the majority. I conclude by arguing that such an approach to this issue runs the risk of turning Jews once again into strangers at a time when cultural anxieties are troubling European societies.
Western liberal states are considered to be secular in nature, with a presumed neutrality of state laws from religious values and norms. However, this claim overlooks the inherent influence that religious groups (namely, dominant Christian churches and groups) have as informal institutions. According to neo-institutionalists, informal institutions, like these religious norms and values, interact with and influence formal state institutions. As such, it could be argued that the norms and values of dominant religious groups within the state have a role in shaping governmental policies and the law. This is evident when examining the debates around multiculturalism and religious freedom that arise in liberal democratic states such as Australia, Canada, and the United Kingdom (UK). In particular, the recent Sharia debates that have arisen in each of these jurisdictions illustrate that the secular state legal system is often positioned as “neutral” and free from religious influence – and thus incompatible with, and unable to, accommodate the religious orders of minority groups. However, this idea that the state is entirely free from religious values is a fallacy that ignores the historical role and influence of Christian churches in each state. In opposing the accommodation of Sharia in private dispute resolution, common arguments include the inherent patriarchal nature of the religion leading to further oppression and disadvantage of Muslim women when seeking resolution of personal law matters (i.e. divorce and property settlements). The secular state law is positioned against this (and religion more broadly) as the “fair” and “just” alternative for minority women – protector of individual rights. Though this ignores the inherent gender hierarchies embedded within formal state institutions, including the legal system that has been implicitly shaped by religious moral values to varying degrees – where minority women are also faced with a set of gender biases. When combined with the internal pressures from their communities and families this can often place them in a double-bind of disadvantage. In this paper, I draw on feminist institutionalism to examine the informal institutional norms that arise from dominant Christian churches in Australia, Canada, and the UK. In particular, the ways in which these informal norms have influenced the development of state laws, and continue to operate alongside the legal system to shape and influence governmental policies, laws, and ultimately the outcomes for Muslim women.
Section II Law and Social Change: Old Questions, New Answers
This article explores how legal intermediaries facilitate or inhibit social change. We suggest the increasing complexity and ambiguity of legal rules coupled with the shift from government to governance provide legal intermediaries greater opportunities to influence law and social change. Drawing from new institutional sociology, we suggest rule-intermediaries shape legal and social change, with varying degrees of success, in two ways: (1) law is filtered through non-legal logics emanating from various organizational fields and (2) law is professionalized by non-legal professionals. We draw from case studies in the United States and France to show how intermediaries facilitate or inhibit social change.
The Politics of Litigation
Litigation is part of the American policymaking playbook as diverse groups routinely turn to courts to pursue their agendas. All of this litigation raises questions about its consequences. This essay examines the literature on the political risks of litigation. It argues that this literature identifies four potential risks – crowd out, path dependence, backlash, and individualization – but offers less insight into the likelihood of these risks in practice. It ends by offering suggestions about how to advance our understanding of when litigation casts a negative political shadow in the current age of judicialization.
This chapter discusses the use of law and legal institutions by the emerging social movement seeking to end Australia’s policy of mandatory detention for refugees and asylum seekers. Through an examination of Australian inquiries and court cases alongside social campaigns, it considers the ability of legal institutional responses to identify the harms, in particular state and institutional responsibility, and the subsequent impact of these legal processes in inhibiting and promoting social and structural change. It shows how social movements are harnessing law and creating new legal and civic spaces in which to contest Australia’s refugee and asylum seeker regime.
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