Normative Pluralism and Human Rights: Social Normativities in Conflict

Description

The complex legal situations arising from the coexistence of international law, state law, and social and religious norms in different parts of the world often include scenarios of conflict between them. These conflicting norms issued from different categories of ‘laws’ result in difficulties in describing, identifying and analysing human rights in plural environments. This volume studies how normative conflicts unfold when trapped in the aspirations of human rights and their local realizations. It reflects on how such tensions can be eased, while observing how and why they occur. The authors examine how obedience or resistance to the official law is generated through the interaction of a multiplicity of conflicting norms, interpretations and practices. Emphasis is placed on the actors involved in raising or decreasing the tension surrounding the conflict and the implications that the conflict carries, whether resolved or not, in conditions of asymmetric power movements. It is argued that legal responsiveness to state law depends on how people with different identities deal with it, narrate it and build expectations from it, bearing in mind that normative pluralism may also operate as an instrument towards the exclusion of certain communities from the public sphere. The chapters look particularly to expose the dialogue between parallel normative spheres in order for law to become more effective, while investigating the types of socio-legal variables that affect the functioning of law, leading to conflicts between rights, values and entire cultural frames. Cover Half Title Title Page Copyright Page Dedication Table of Contents List of figures Notes on contributors Foreword Acknowledgements 1. Introduction: conflicts over justice and hybrid social actors as legal agents Prologue: a biographical note The focus of the current collection of articles Maps and perceptions of conflict The precariousness of conflict and the key role of human agency The practical test The individual articles Part I: Preventing conflict Part II: Articulating conflict Part III: Processing conflict Part IV: Resolving conflict Conclusions References PART I: Preventing conflict 2. Beyond the pedagogical beauty of dichotomy: comparative law methodology in liquid times Re-thinking (over and over again) comparative law Methodological limits Beyond the dichotomy: a flexible approach Bibliography 3. Managing language in multicultural societies: learning from the Indian experience Preventing conflicts and managing language in multicultural societies Indian federalism: institutional tools to manage cultural and language conflicts Preventing language conflicts through institutional arrangements: the linguistic States Preventing language conflicts through rights Comparative conclusions: suggestions from a post-colonial experience PART II: Articulating conflict 4. De-religionising religion: the European Court of Human Rights and the conflict of definition Introduction The selected cases of the Strasbourg Court Debating conceptions of identity of the subject Challenging the legitimate aim By way of epilogue References 5. Immigrants or new religious minorities?: conflicting European and international perspectives Introduction Religious diversity in Europe: minorities and immigrants The divergent approaches in practice Towards a minority perspective Conclusion Bibliography 6. Conscientious objection in Swedish and Italian healthcare: paradoxical secularizations and unbalanced pluralisms Introduction Conscientious objection in Sweden: the case of Ellinor Grimmark A counter case: the frenzied availing of conscientious objection in Italy Pluralism and claims for difference: the specter of cosification and its shackling effect on freedom The translational path to pluralism: a method for dialoguing among differences Bibliography 7. The unfinished education: religion, education and power struggles in multicultural Israel Introduction Religion within education in Israel The design of educational pluralism in Israel: general features Normative justification of close entanglement between religion and the state in education in Israel Constitutional plurality and religious diversity Educational diversification according to religious belonging: the example of Ultra-Orthodox education Educational pluralism, autonomy and accommodation of religious identity Education and democratic governance PART III: Processing conflict 8. Feminist dilemmas: the challenges in accommodating women’s rights within religion-based family law in India Introduction I. Contesting India’s personal law system II. Contesting Western feminism: contextualising gender discrimination III. State-led reforms IV. Community-led reforms V. Conclusion Bibliography 9. Tamāshā: the theatrics of disputing and non-state dispute processing Disputes as memories and reflections Tamāshā: The creation of liminal spaces Tamāshā: the theatrics of dispute processing Case study 1: Tamāshā as an act of drawing boundaries Understanding the significance of tamāshā in the context of dispute processing Conclusion Bibliography 10. Can law ‘sustain’ cultural diversity?: the inheritance laws of Indian minority communities and the Italian legal system Introduction Hindu inheritance laws between judicial system and customary rules Customary rules within Indian communities in Italy Minorities within the Italian legal system Some particular examples of inheritance “laws” in Italy Conclusions Bibliography PART IV: Resolving conflict 11. Multiculturalist conflicts and intercultural law Introduction Conflict and social conflict management Cultural and legal shock Law and identity Multiculturalist law The intercultural law: culture and interculture The possibilities of intercultural law Intercultural law and the narrative approach Intercultural law beyond formal law References 12. Addressing the possibility of normative conflicts around human rights: the concept of adaptation Introduction Justifying human rights as individual and universal rights The legitimacy of the impact of the universality of human rights within religious and worldview-based communities Patterns of argumentation by religious and worldview-based Communities on their correlation to human rights Adaptation: a model for bringing human rights and religious and worldview-based communities together References 13. Adjudication in a pluralized legal field: proposing communication as an analytical device Introduction The Muslim Personal Law in the Indian context Conclusion Bibliography 14. Two legal orders and one cause: or a way to simultaneous decision-making The frame The rule The comparative assurance The kernel Bibliography Index