Normative Pluralism and Human Rights: Social Normativities in Conflict (Juris Diversitas)

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.-- Provided by Publisher Cover 1 Half Title 4 Title Page 6 Copyright Page 7 Dedication 8 Table of Contents 10 List of figures 12 Notes on contributors 13 Foreword 17 Acknowledgements 21 1. Introduction: conflicts over justice and hybrid social actors as legal agents 24 Prologue: a biographical note 24 The focus of the current collection of articles 25 Maps and perceptions of conflict 27 The precariousness of conflict and the key role of human agency 36 The practical test 40 The individual articles 45 Part I: Preventing conflict 45 Part II: Articulating conflict 46 Part III: Processing conflict 49 Part IV: Resolving conflict 51 Conclusions 55 References 57 PART I: Preventing conflict 60 2. Beyond the pedagogical beauty of dichotomy: comparative law methodology in liquid times 62 Re-thinking (over and over again) comparative law 62 Methodological limits 65 Beyond the dichotomy: a flexible approach 74 Bibliography 78 3. Managing language in multicultural societies: learning from the Indian experience 84 Preventing conflicts and managing language in multicultural societies 84 Indian federalism: institutional tools to manage cultural and language conflicts 86 Preventing language conflicts through institutional arrangements: the linguistic States 88 Preventing language conflicts through rights 92 Comparative conclusions: suggestions from a post-colonial experience 95 PART II: Articulating conflict 98 4. De-religionising religion: the European Court of Human Rights and the conflict of definition 100 Introduction 100 The selected cases of the Strasbourg Court 103 Debating conceptions of identity of the subject 108 Challenging the legitimate aim 113 By way of epilogue 121 References 123 5. Immigrants or new religious minorities?: conflicting European and international perspectives 128 Introduction 128 Religious diversity in Europe: minorities and immigrants 128 The divergent approaches in practice 134 Towards a minority perspective 140 Conclusion 142 Bibliography 142 6. Conscientious objection in Swedish and Italian healthcare: paradoxical secularizations and unbalanced pluralisms 145 Introduction 145 Conscientious objection in Sweden: the case of Ellinor Grimmark 145 A counter case: the frenzied availing of conscientious objection in Italy 150 Pluralism and claims for difference: the specter of cosification and its shackling effect on freedom 155 The translational path to pluralism: a method for dialoguing among differences 157 Bibliography 161 7. The unfinished education: religion, education and power struggles in multicultural Israel 164 Introduction 164 Religion within education in Israel 165 The design of educational pluralism in Israel: general features 166 Normative justification of close entanglement between religion and the state in education in Israel 169 Constitutional plurality and religious diversity 171 Educational diversification according to religious belonging: the example of Ultra-Orthodox education 175 Educational pluralism, autonomy and accommodation of religious identity 182 Education and democratic governance 187 PART III: Processing conflict 190 8. Feminist dilemmas: the challenges in accommodating women’s rights within religion-based family law in India 192 Introduction 192 I. Contesting India’s personal law system 193 II. Contesting Western feminism: contextualising gender discrimination 195 III. State-led reforms 198 IV. Community-led reforms 203 V. Conclusion 207 Bibliography 208 9. Tamāshā: the theatrics of disputing and non-state dispute processing 212 Disputes as memories and reflections 212 Tamāshā: The creation of liminal spaces 213 Tamāshā: the theatrics of dispute processing 214 Case study 1: Tamāshā as an act of drawing boundaries 216 Understanding the significance of tamāshā in the context of dispute processing 224 Conclusion 227 Bibliography 228 10. Can law ‘sustain’ cultural diversity?: the inheritance laws of Indian minority communities and the Italian legal system 230 Introduction 230 Hindu inheritance laws between judicial system and customary rules 232 Customary rules within Indian communities in Italy 235 Minorities within the Italian legal system 236 Some particular examples of inheritance “laws” in Italy 236 Conclusions 238 Bibliography 239 PART IV: Resolving conflict 242 11. Multiculturalist conflicts and intercultural law 244 Introduction 244 Conflict and social conflict management 245 Cultural and legal shock 246 Law and identity 248 Multiculturalist law 250 The intercultural law: culture and interculture 251 The possibilities of intercultural law 252 Intercultural law and the narrative approach 255 Intercultural law beyond formal law 256 References 257 12. Addressing the possibility of normative conflicts around human rights: the concept of adaptation 260 Introduction 260 Justifying human rights as individual and universal rights 262 The legitimacy of the impact of the universality of human rights within religious and worldview-based communities 266 Patterns of argumentation by religious and worldview-based Communities on their correlation to human rights 268 Adaptation: a model for bringing human rights and religious and worldview-based communities together 273 References 275 13. Adjudication in a pluralized legal field: proposing communication as an analytical device 278 Introduction 278 The Muslim Personal Law in the Indian context 279 Conclusion 293 Bibliography 293 14. Two legal orders and one cause: or a way to simultaneous decision-making 295 The frame 295 The rule 295 The comparative assurance 297 The kernel 299 Bibliography 300 Index 302 Social Normativities in Conflict "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."--Preliminary page This volume studies the tensions between the universalist aspirations of human rights and their local realizations. It reflects on how these tensions can be eased, while observing how they occur. The authors examine how obedience or resistance to the official law is generated through the interaction of a multiplicity of conflicting norms, interp