Religious and cultural conflicts with the common law of the land
College: Banasthali Vidyapith
Religion, culture and law are wide ranging concepts in themselves. As wide-ranging as they are they also get influenced by each other and causes small changes in them which in turn lead to transformations in them.
An excerpt from Joseph’s story:
The earth has long since been divided into distinct nations, inhabiting different regions, speaking different languages, engaged in different pursuits, and attached to different forms of government. It is natural that, under such circumstances, there should be many variances in their institutions, customs, laws, and politics and these variances should result sometimes from accident or design or from superior skill and knowledge of local interests, and sometimes from a choice founded in ignorance and supported by the partiality of evolving civilization.
Religious and cultural conflicts
Religion has defined frame of beliefs acquired and accumulated over time and passed from generation from generation. For instance different religions like Zoroastrianism, Christianity existed earlier than Buddhism among others which came into existence recently. Difference in faiths and beliefs within a religious group leads to creation of sects among them like the Shia and Sunnis in Muslims. But if such sects increase in size or differ in their beliefs too much then they form a separate group like the Sufis.
Culture has defined physical boundaries and the people belonging to a particular culture adopt practices as per the requirements of the geographic, available resources and popular common thought. For instance in southern part of India where it surrounded by waters rice is part of the staple diet there. Within a society there can be various subcultures.
Large group of people believing in a certain religious belief are bound to affect the culture in a concrete way as culture is sum total of the beliefs and actions of everyone on a given society. Culture can influence people’s religious beliefs and practices. Also the technological and economic level of development in a society determines any religious values that people might adopt. Culture and religious belief can reinforce each other in subtle ways.
Common law of land
Law is command or order which tells you about some rules which regulate the code of conduct of a person. The ulterior motive of law is to bringabout peace and happiness in a society.
Law of the land is derived from the Latin word lex terrae or legem terrae which includes all laws in force within a country or region, including statute law and case made law. Law is as old as civilization ,as, since the time rules have existed, there has been the existence of rule breakers. Law is different in each society as morals of each society also vary.
With time law has evolved from retributive to reformative in nature and has become more humanly and gentle in comparison to the inhumane punishments prevalent in the primitive ages.
Relationship between conflicts and the law
As the society has evolved over time evolution of law has also taken place. Evolution of society has taken place using religion and culture as instruments. As the needs of man have been changing it has further caused change in the religious beliefs and the prevalent cultural practices. Societies in fact typically use law to control processes of cultural development.
Even the laws that are presented as reflecting local cultural values are most often products of cultural invention and borrowing from outside. Patrick Devlin imagines that law enforces “the invisible bonds of common thought” that hold us “together” as a society, and this “fundamental agreement” in turn gives legitimacy to law. Law also acts as a binding force for the already existing and prevalent acts and practices.
Doctrines in a culture and religion are harmful for being excessively malleable and too complicated to apply. Thus arose the need the need for written law. For instance, untouchability, a then common practice in India amongst Hindus was ceased with the advent of the Constitution after independence, thus, protecting the human rights of the minority. Thus law is sometimes used to revise and reshape culture.
Another example is of the sati pratha which was stopped by making and enforcing strict laws as it was found to be too inhumane and violative of human rights. While there is also the example of Vishakha guidelines which were introduced when women had started going out of homes and work. Thus herein a cultural change brought about the formation of new law.
Religious and cultural communities are large in nature. There is disagreement present both in between different communities but also within a single community. Those disagreeing often interact with each other in ways that are offensive and pressurizing which further creates misunderstanding and tensions in between them. This results into modifications and transformations in these communities.
In a multicultural society conflict poses the question of whether and how the law ought to permit different cultures to coexist. Indian democracy is a living example of wide variety of multiculturalism. Multicultural states typically seek to design legal strategies to coordinate the relationship among multiple cultures. Such strategies range from individual rights, to group rights, to federalism. In India uniform civil code has been tried to be introduced but has only resulted in failed attempts because the existence of differing cultures which cannot follow same laws regarding certain aspects. Problem at the heart of conflicts is whose rules or values shall prevail.
A court confronting a case regarding conflict should view the case as foreign in two ways – as distant from judges own value system and also the controversy over cultural values within the foreign region. What looks exotic or irrational in one context or from one point of view looks perfectly rational and even admirable from another and to the extent possible, one should seek to understand people’s ways of knowing the world, on their own terms, before passing a judgment on the according to one’s own moral and legal criteria.
The common law in particular self consciously embodies the “experience” and “custom” of the surrounding community. Every time the common law requires a jury to reach a verdict based upon the judgment of the “reasonable person”, it seeks to enforce “the general level of moral judgment of the community, what it feels ought ordinarily to be done.
Laws designed to prevent urban fires, avoid traffic accidents, or promote market efficiency follow the logic of instrumental rationality, which distinct from, and sometimes hostile to, the logic of cultural values. The law does not merely reflect the norms of a pre-existing culture, but is instead itself a medium that both instantiates and establishes culture. With regard to family, for instance, law enforces antecedent cultural norms when it establishes parental obligations that reflect traditional family roles.
Law can intervene into cultural matters in a wide variety of ways. Each kind of legal action possesses its own logic and requirements, and each must be assessed on its own merits. Intervention in criminal would be very different from one in civil case.
Legal enforcement of positive cultural values can produce negative as well as positive effects. No society has unlimited tolerance for disorder and turbulence. Culture establishes difference as well as unity. When the laws become too oppressive or ineffective then cultural conflicts can spin out of control and threaten to unravel he core values. Further unmediated cultural conflict can lead to civil war or secession. Such situations bring about drastic and necessary changes in law. Examples of such changes includes the changes in rape laws and juvenile laws after the mind boggling case of Nirbhaya.
Thus, religious and cultural conflicts affect the common laws of the land and the reverse is also true. It seems as though both coexist to keep a check on each other in a cyclical form and even take rigorous forms to do so and bring about changes in each other as required with time.
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