Personal Autonomy and the Option of Religious Law

Ahmed, Farrah

doi:10.1093/lawfam/ebq006

Cited by 8 publications

(3 citation statements)

References 22 publications

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“…Conferring such powers upon religious or cultural authorities is likely to make it more difficult for individuals within such groups to exit from the group. Farrah Ahmed () has argued that even if individuals become subject to such norms on an opt‐in basis, pressures felt by many group members to conform reduces their autonomy. Shachar (, 84) has worried that conferring jurisdiction on groups to administer their own norms could encourage “reactive culturalism” whereby the groups become defensive about their distinctiveness and less open to adaptation.…”

Section: Legitimacy and The Social Thesis: Plural Legal Systemsmentioning

confidence: 99%

Positivism and Plural Legal Systems

Eekelaar

2012

Ratio Juris

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This paper considers whether the positivist account of law is useful in guiding states in how they should deal with religious or customary legal orders followed by minority groups within their jurisdiction. It argues, first, that such orders can be said to exist despite the prevalence of disagreement about the grounds of law. It then argues, contrary to views advanced by Scott Shapiro and Joseph Raz, that there are good reasons for perceiving that the resolution of legal disputes by reference to moral principle involves the application of pre‐existing law. However, the paper concludes by arguing that the Social Thesis has an important role in supplying the basis upon which the application of law can be deemed to be legitimate, and that this has relevance to the way states might respond to minority legal orders.

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Section: Legitimacy and The Social Thesis: Plural Legal Systemsmentioning

confidence: 99%

Positivism and Plural Legal Systems

Eekelaar

2012

Ratio Juris

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“…It might be thought that the authorisation model could have an advantage if group members were to be given the power to opt-in (or opt-out) of a particular norm-system. However, Farrah Ahmed 8 has convincingly argued that the view that such options enhance autonomy is severely undercut by pressures felt by many group members to conform. In fact, she goes further and argues that, even if that were not so, the option of personal law will usually reduce autonomy because such laws characteristically place restraints on autonomy, and those governed by them will experience reduction in autonomy which they can avoid only by a conscious decision for which they must accept responsibility, and against which they may therefore feel inhibited.…”

Section: The Cultural Dimensionmentioning

confidence: 99%

From Multiculturalism to Cultural Voluntarism: A Family‐based Approach

Eekelaar

2010

Political Quarterly

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In the context of the current debate on multiculturalism, this article draws on three models of state policies towards families to propose a reframing of multiculturalist policies. They are the ‘authorisation’ model, wherein the state authorises families to define and enforce family obligations as law; the ‘delegation’ model, wherein the state prescribes the norms families are to follow and delegates to families the role of enforcing them; and the ‘purposive abstention’ model, wherein the state uses the voluntary performance family norms as a tool of policy, giving them limited legal recognition within the continued application of the general law. The article considers how these models might guide policy towards communities, which can be seen, substantially, as collections of families. It favours the ‘purposive abstention’ model, which, in the context of cultural groups, could be termed ‘cultural voluntarism’.

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“…These personal law systems predate the modern state and were used to help maintain stability in the British empire (Ahmed 2010;Ghosh 2007;Aung 2015).…”

Section: Ethnic or Territorial Federalismmentioning

confidence: 99%

The road to federalism : finding the middle ground in Nepal, Myanmar and Sri Lanka

Breen¹

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Following the establishment of post-World War II modern nation-states, many Asian countries including Nepal, Myanmar and Sri Lanka sought to nation-build on the basis of their dominant ethnic group's identity, to the exclusion of smaller ethnic groups. There was substantial resistance, leading to civil war and poor development. Minority ethnic groups have demanded federalism and the recognition of their political equality, lest they pursue a secessionist agenda. It is not known why Asian states have been reluctant to institutionalize federalism, nor what causes it to be established in these holding together situations, let alone what type of federalism is more likely to be conducive to establishing political equality and bringing an end to conflict and authoritarianism. This thesis addresses these questions and dissects the lessons and innovations of the institutional responses of Nepal, Myanmar and Sri Lanka to their diversity based challenges.Using a historical institutional methodology and analyzing the critical junctures and intervening path dependencies, I demonstrate the importance of secession risk and infrastructural capacity variables to the establishment of holding together federalism, building on the theories of Riker (1964) and Ziblatt ( , 2006. I show how the initial nation-building mechanism, as a tool of power reproduction by the dominant ethnic group, kick started a simultaneous reactive sequence leading to centralization, concession and ultimately, a federal compromise. In particular, when the secession risk is moderate, and when minority ethnic groups have a demonstrable infrastructural capacity, there are incentives for regime change agents from the dominant ethnic group to align with minority ethnic groups to pursue mutual goals of federalism and democratic reform.Further, although federalism may be agreed as part of such a constitutional settlement, there remain many issues to resolve, primarily the demarcation of units, the division of powers, power-sharing and proportionality. An ethnic federal system is likely to have a narrower and less secure set of powers for units with any shortcomings in ethnic autonomy addressed by inclusion, non-territorial arrangements, local government and personal laws.Accommodation of diversity is a just goal, but without moderation, accommodation can lead to extremism and undermine political equality. Nepal, Myanmar and Sri Lanka are finding a middle ground whereby deliberative and moderating institutions are combined with accommodating ones to balance centrifugal and centripetal forces. Based on their experiences, I hypothesize that a federal system that encourages, if not requires, multiethnic political parties at the center, and ethnic parties in the units and sub-units provides a range With accommodation, should come moderation, lest the worst effects of intra-ethnic competition come to play. Nepal, Myanmar and Sri Lanka are finding a middle ground, where the rights of minority ethnic groups are affirmed and given institutional substance, and the risks of f...

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Personal Autonomy and the Option of Religious Law

Cited by 8 publications

References 22 publications

Positivism and Plural Legal Systems

Positivism and Plural Legal Systems

From Multiculturalism to Cultural Voluntarism: A Family‐based Approach

The road to federalism : finding the middle ground in Nepal, Myanmar and Sri Lanka

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