Ethnicity, Law, and Human Rights: The English Experience

By Sebastian Poulter | Go to book overview

2
Developments in English Law

The aims of this chapter are to chronicle the principal developments which have occurred within English law in its handling of ethnic or cultural differences and to identify the various legal techniques which are available to give effect to the two broad policy options outlined in the previous chapter. While the modem approach endorses cultural pluralism there are, as we have seen, limits to this process and assimilationist measures may sometimes be needed to uphold minimum standards, as part of the wider public interest, in the light of shared institutional values.

The first section explores the evolution of English legal attitudes towards cultural diversity by concentrating upon the role of the courts in three particular areas. In each of them the judges have been called upon to determine whether or not to recognize and uphold a diversity of customs, usages, and traditions. The second section focuses on the work of Parliament and illustrates how the legislature has, in recent decades, passed enactments reflecting both pluralist and assimilationist philosophies. The third section seeks to demonstrate the variety of techniques which are available to implement each of these approaches and thus draws attention to the ambiguity inherent in the use of blanket terminology to describe policies whose legal implications can be far more complex than they appear at first sight.


JUDICIAL STANCES IN RELATION TO CULTURAL DIVERSITY

(a) Local English customs 1

Despite the mass of legislation enacted in modern times, the bedrock of the English legal system remains the common law developed over many centuries through the decisions given by the English judiciary in individual cases. The roots of the common law system lie in local customs, derived from a variety of sources, which were in operation prior to the advent of William the Conqueror in 1066. However, the Norman Conquest had a dramatic impact upon the development of the common law

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1
See generally, Allen, C., Law in the Making, 7th ed. (Oxford, 1964), ch II.

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