Taking Euroscepticism that mainly concentrates on the tension between European integration and the preservation of cultural diversity and national identity as a point of departure, this contribution serves as a normative observation of the Lisbon Treaties' competences and procedures in relation to the statement that the EU will respect cultural diversity and national identity. The question is whether the Lisbon Treaties are giving in to Euroscepticism by respecting and protecting diversity or whether the statements are only a window-dressing formality which, in reality, is not effectuated by the Union. When one looks at some Union developments and initiatives over the last few years, the EU's eventual ideal of becoming a more centralised political entity becomes clear. If, when looking at the new provisions in the Lisbon Treaties, this ideal is taken into account, the Treaties seem to reflect this progressive approach. Overall, it seems that 'Lisbon' has indeed considered the Eurosceptic arguments concerning a lack of democratic control and the tension concerning diversity and national identity. Nonetheless, the general signal expressed by the innovations seems to be that progressive integration by increased effectiveness is more important than the satisfaction of the Member States' wishes with regard to respect for cultural diversity and national identity. It may well be that this effectiveness results in a counter-effect: an intensification of Euroscepticism that may negatively reflect on the Union's progressive integration.
This essay seeks to reflect on how the conscious political effort to overcome the divisiveness caused by Member States' idiosyncracies has matured into the constitutional recognition of Member State identities as essential to the European project. Central findings concern the particular twist from 'national identity' to 'constitutional identity' in the Lisbon Treaty. This can be considered a codification of the case law of some of the Member State constitutional courts. This implies that, whereas the Lisbon Treaty failed to incorporate a 'supremacy clause' on the priority of EU law over conflicting Member State law, it has indeed formulated a legally binding rule on the priority of certain Member State constitutional law over EU law. The more precise contours of this priority have already become the object of controversial ECJ case law. This essay explains why this European controversy must necessarily remain open-ended, based as it is on tolerance, the acceptance of otherness and trust.
This paper examines the difficulties of reconciling the values promoted by multiculturalism with the objectives of harmonization. In the event of conflict, examples from English and French law show that harmonization of private law rules does not always achieve its aim of approximating national laws but, on the contrary, often backfires. The question of whether and why these divergences produce Europhile or Eurosceptic positions amongst Member States is addressed. It appears that when maximum harmonisation clashes with multiculturalism this can lead to legal nationalism, whereas minimum harmonization has less negative effects and can stimulate legal experimentation. It is suggested that harmonization requires a mutual listening and learning process in order to accommodate the multiculturalism of Member States and enable Europhilia to flourish in the European Union.
This contribution aims to show that Euroscepticism is based on a particular view of how citizens' interests are represented. This view should be replaced with a different type of thinking about ensuring citizens' participation in the European integration process. In this alternative view, the possibility of citizens choosing legal regimes other than their 'own' (and States being explicit about the limits of exercising such an enhanced party autonomy) is seen as a method of empowering citizens in fields that matter to them the most. Typically, these fields relate to (but are not limited to) what is known as 'private law', the law that deals with how private parties can shape their own private, professional and business lives.
In recent debates on the constitutional status of 'secularism' we can discern three positions. The first tries to overcome the absence of 'secularism' in most liberal-democratic constitutions by developing a more robust theory of constitutional secularism. The second develops theories of 'alternative secularisms'. The third, defended in this article, argues that we should drop secularism as a 'cacophonous' concept from our constitutional and legal language and replace it by liberal-democratic constitutionalism. I develop an analytical taxonomy of twelve different meanings of 'secularism' based on a comparative study of Turkish and Indian Supreme Court cases on secularism, and demonstrate that they are incompatible with each other and with the hard core of liberal-democratic constitutions. Next, I criticize the respective rulings in the Turkish and Indian context. Particularly in 'militant democracies', the appeal to a principle of 'secularism' turns out to be inimical to the liberal and to the democratic 'constitutional essentials'. I end with some normative recommendations on the role of constitutional review and judicial activism.
Normative pluralism refers to a social fact: the co-existence of different bodies of norms within the same social space. State legal pluralism indicates a single overarching national legal system but plural laws, the state recognising different rules for specific categories of persons. However, the equating of multiculturalism and legal pluralism with state law is challenged. In the modern unitary nation state of the Western type only a weak version of legal pluralism in which state centralism still prevails is acceptable. Below it is advanced that in this state the accommodation of cultural diversity and multiple normative orders can only be brought about by the judge, the tuner or the navigator and steersman of the law, by using discretion and creative interpretation and not by the legislators, whose main demarcation lines are clearly drawn within domestic law by the Constitution, and within Europe and within the EU by the demands of human rights and 'ever closer integration'. In both of the critical illustrations below - the equality of the spouses in Turkish family law and the General Principles of the CEFL on divorce and maintenance - more scope should be given to judges to cope with and to create the necessary 'fit' between law and culture that do not coincide.
This article presents evidence of a trend in the practice of British immigration control of denying recognition to marriages which take place trans-jurisdictionally across national and continental boundaries and across different state jurisdictions. The article partly draws on evidence gleaned from the writer’s own experience of being instructed as an expert witness to provide opinions of the validity of such marriages, and partly on evidence from reported cases at different levels of the judicial system. The evidence demonstrates that decision making in this area, whether by officials or judges, often takes place in arbitrary ways, arguably to fulfil wider aims of controlling the immigration of certain population groups whose presence in the UK and Europe is increasingly seen as undesirable. However, and quite apart from the immigration control concerns underlying such actions, the field throws up evidence of the kinds of legal insecurity faced by those whose marriages are solemnized under non-Western legal traditions and calls into question respect for those traditions when they come into contact with Western officialdom.
This contribution explores the legal acceptability of old and new forms of sex segregation, using a multilayered ‘inferiority test’ that can be regarded as a specification of (inter)national equality and non-discrimination standards. The test is applied to a number of topical cases of sex segregation: 1) A traditional case of rather uncontested sex segregation in sports, specifically in amateur football; 2) A more controversial case that seems to be on the rise once again: sex-segregated education; 3) The highly controversial case of sex-segregated integration courses in the Netherlands. The outcome shows that each sex-segregated practice is problematic in the light of one or more criteria of this inferiority test, but not necessarily the same criteria. Specific attention is paid to the merits of the test in a multicultural context. The inferiority test is a useful tool in dealing with multicultural complexity, although not in every respect. It allows the impact of sex segregation on minority women to be taken into account, as well as cultural and religious reasons which women may have in demanding sex-segregation facilities, unless this will result in perpetuating their or other women’s subordination. Our findings suggest that the inferiority test is quite useful as an analytical tool to assess contested practices of sex segregation. However, the multilayered character of the test needs some fine-tuning when the various elements of the test lead to different conclusions.
Because of the increase in international love traffic, transnational problems in divorce, maintenance issues, visitation rights, custody over children, and cases of child abduction are here to stay. A clash of cultures is obvious in international child abduction cases in which Islamic legal cultures are involved, because ‘the best interests of the child’ principle as mentioned in several treaties functions as a site of struggle. This paper shows, firstly, in what ways the clash manifests itself by describing abduction cases in which Dutch legal professionals become involved, and how they act in such cases. The second part of the paper takes a look underneath the surface of legal practice in order to better understand it and to trace possible future developments. I describe the developments in the Dutch legal profession, such as how legal professionals keep their ‘cultural knowledge’ up to date, and whether they develop alternative ways to deal with culture clashes in child abduction cases. Developments seem to be haphazard and piecemeal in the form of knowledge and network development, court-annexed mediation, and specialized liaison judges. These developments do lead to a broadening of horizons, but not necessarily to a consensus handshake between legal cultures. A solid ‘stalemate’ in actual abduction cases can usually be prevented because Dutch legal professionals search for pragmatic solutions in individual cases.
The tension between religious law and secular law in modern democracies is illustrated in this article by a discussion of the different approaches to the get (a bill of divorce) refusal (based on Jewish law) under Dutch, English and Israeli law. These legal orders share many characteristics, but also display important differences as to the role of religion and religious law in the public realm. The Dutch system is the most secular of the three; it does not recognize a role for religious law within the secular system as such. The English legislation provides for means that to a certain extent facilitate the effectuation of a religious divorce. In Israel, finally, the law of marriage and divorce is as such governed by the religious law of the parties concerned; for the majority of the population that is Jewish law. An evaluation of the different approaches in the framework of human rights law reveals the complexities of the collision of the underlying values in terms of equality, religious freedom and minority rights, also having regard to the diversity of opinions within religious communities.
This article discusses the law and practice of Muslim marriages and their registration in Indonesia. The central question is to what extent these accommodate the rights and needs of poor women. A historical overview of state involvement in marriage regulation demonstrates how the women’s rights discourse has been largely replaced by one based on Islamic law, but that nonetheless women’s rights in marriage have been substantively reinforced. The next part discusses the control of Muslim marriage in practice, by focusing on the registration of marriage and divorce. It shows how informal practices at the lowest level of the state and state courts serving as a safety net protect the rights of poor women in practice much more effectively than is often assumed. These findings undermine the assumptions underlying the current emphasis by national women’s rights groups and donors on extending state registration and criminalising non-registration. This emphasis on the juridification of people’s lives by casting the issue essentially in terms of human rights and remedies may in fact even lead to the opposite of what it aims to achieve: more liberty for women to dispose of their own lives.
This article deals with one of the aspects of a pluralistic society: the existence of informal marriages. These are marriages concluded in accordance with religious or cultural traditions that do not comply with the requirements of the formal secular legal order. Two aspects of those marriages will be discussed: primarily, whether and to what extent spouses in informal marriages should be regarded and protected by law as spouses, and secondly, whether spouses who are involuntary kept in their informal marriages should be released by and protected by formal law. With regard to both aspects the question will be raised whether human rights could and should serve as a means to offer spouses of informal marriages their desired protection. From recent case law both from the European Court of Human Rights and the national courts, it becomes clear that human rights have only recently and very cautiously started to demand a role in the informal legal orders.
This paper looks at the türban ban controversy in Turkish politics from an empirical and behavioural perspective. With the aid of a number of nationwide surveys I aim to clarify how the ban on the türban in public spaces is being evaluated by different segments of Turkish society. Who supports which policy options and who opposes these options for what reasons? The policy implications of these findings will be evaluated in the concluding section.
The case of the SGP essentially concerned the question whether the Netherlands should take measures against a Bible-based political party that bars women from its list of candidates. Against the theoretical background of human rights sociology, the rise of rights as a framework for moral discussions and the role of NGOs in rights implementation, this article assesses how ‘rights talk’, in particular based upon the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), became the language in which the discussion over orthodox women’s political rights came to be framed in the Netherlands. It makes use of extensive quantitative and qualitative data to assess how this particular form of rights realization – via court cases lodged by outside NGOs – impacted upon discussions within the communities concerned, particularly amongst the women themselves. It argues that this particular form of rights realization can also have undesired effects, such as reinforcing more conservative positions and strengthening a general sense of isolation from society and relates these findings to more general discussions on ‘talking rights’ in a context of religious diversity.
Conflicts in human rights today are often conflicts around religion and equality. They focus on headscarves, swimming lessons or prayer during school. To understand them better, we need to resist the temptation to reduce them to cases or clashes between a determinate set of rights. Rather, we need to understand the political agendas set, including the culturalization of religion and the othering of sex equality, and we need to analyse such conflicts in contexts of contested secularism, as an occurrence in a world of multi-level (and thus also contested) regulation and as a problem of multiple inequalities. To solve them, this paper suggests relying on a triangle of fundamental human rights, with substantive equality and interrelated liberty as well as dignity.
The still to be adopted Stockholm Programme, setting out the policy for justice and home affairs for the next five years, includes a chapter on data protection that calls for a comprehensive legal framework on data protection covering all areas of EU competence. With Directive 95/46 and a newly enacted Framework Decision on data protection in criminal matters there is still a need for such a comprehensive EU protection scheme. Both existing instruments are not consistent with each other and cannot thus form a comprehensive framework of data protection. The inconsistencies have equally penetrated the transatlantic cooperation in criminal matters. When assessing the agreements concluded between Europol, Eurojust and the EU, on the one hand, and the US, on the other (including the PNR Agreements), the same issues can be detected. Still, the communication on the Stockholm Programme refers to the data protection provisions in these agreements as an example for future bilateral and multilateral agreements.
This article discusses whether a rule that requires the defence to give prior notice of its strategy and arguments to the prosecution has any bearing on the role of the prosecutor being inquisitorial or adversarial. The rule of special defences in Scottish criminal procedure, which combines inquisitorial and adversarial characteristics, is analysed. On the basis of the historical background of this rule and of Scottish criminal procedure in general, it is submitted that the rule exemplifies inquisitorial ideology, while Scottish procedure is by and large adversarial. The prosecutor may well be expected to use the information gained from an advance notice in an impartial manner, requiring him to investigate exculpatory evidence for the defence. Even though no clear legal duty to that effect exists, the Scottish prosecutor has considerable discretion to engage in informal cooperation with the defence. It is argued that a duty to act impartially may exist within this context of informal cooperation. The Scottish example shows that a rule on special defences need not imply an inquisitorial role for the prosecutor, but it can do so. As prosecutorial discretion and informal cooperation are pivotal for this inquisitorial role, the coherence of the criminal process may change if this discretion is limited by prosecution directives. The resulting loss of the magisterial role of the prosecutor may have to be compensated by a stronger position for the defence, as it may be dependent on the prosecutor’s impartiality for a fair trial.