Muslim Asian Women and Customary Law in Britain (Article) [2000] JSPL 16; (2000) 4 Journal of South Pacific Law

MUSLIM SOUTH ASIAN WOMEN AND CUSTOMARY LAW IN BRITAIN

By Samia Bano*

COMMUNITY AND THE LAW

Liberal political theory operates according to the principles of individual choice, personal freedom and religious toleration, grounded in the notion of individual rights. Within this tradition group rights are viewed with suspicion and seen as inherently dangerous and oppressive if they fail to acknowledge conflict and diversity within the group. Recently, however, liberals have begun to argue that group interests may, in fact, be accommodated within the framework of individual rights.¹

This raises a number of important conceptual and theoretical questions regarding the relation between individual and group rights, how these are to be distinguished and how clashes between individual and group rights may be reconciled. Embedded in these is the key question of what makes a community a community of rights. Does the state, in granting individuals the right to enjoy their culture, have an obligation to foster that culture and ensure its survival?

One kind of critique of liberalism comes from 'communitarians' who argue that liberalism has failed to encompass the concept of 'community' adequately within its analysis of rights. These critics claim that liberalism, by assuming that the individual exists prior to a community, fails to capture the reality of human experience. According to Christian Bay,

Liberals have persistently tended to cut the citizen off from the person; and they have placed on their humanistic pedestal a cripple of a man, a man without a moral or political nature, a man with plenty of contractual rights and obligations perhaps, but a man without moorings in any real community, a drifter rather than a being with roots in species solidarity.²

By contrast with liberals, communitarians aim to place the individual within a community, seen to play a defining role in identity formation. According to Sandel, the introduction of 'community' into the liberal conception of rights enhances self-consciousness and individual identification with a wider subjectivity of, ‘participants in a shared identity, be it family, community, class or nation', through a sense of participation and engagement with others).³ Belonging is central to the communitarian ideal. Human beings are defined as being socially interdependent, connected over their life course through complex social networks. People as subjects are continuously 'made' through their engagement with their society and its institutions).⁴ 'Community' thus provides a sense of social selfhood and identity, a moral biography embedded in the 'story of those communities from which 1 derive my identity'.⁵ What we are or are able to become depends to an important extent on the wider community in which we live.

The limitations of the 'communitarian' approach lie in its failure to address the issue of difference and diversity within a group. For Hirsch, the communitarians fail to acknowledge the negative dimensions of community:⁶