Ethnic Minorities Law Net

Richard Jones, Liverpool John Moores University

Richard’s paper reports on the Ethnic Minorities Law Net project, funded by UKCLE’s Project Development Fund and Liverpool John Moores University. It draws considerably on a paper (PDF format) presented at the 2002 BILETA Annual Conference.

The Ethnic Minorities Law Net project aims to create a resource that will provide for the development and dissemination of good practice in relation to learning and teaching in a wide range of areas of law as they relate to ethnic minorities.

The objectives of the project are:

• to raise the profile of English law and ethnic minorities within legal education
• to create an online resource of bibliographic materials
• to provide opportunities for publishing for both students and faculty
• to create a resource of learning and teaching materials, including the development sets of case studies
• to forge links
• to maintain online conference facilities
• to provide a focus for the development of seminars and conferences

Ethnic minority legal studies

Compared to the sociological and political aspects of ethnic minority presence in Britain, the related legal issues have received only scant attention in law faculties and in the literature. Ethnic minorities, often with poor English language skills and encumbered with the ‘baggage’ of their cultural and personal law, face and create many complex legal challenges, but such conflict scenarios have interested only few legal academics (see in particular Pearl, 1972, 1986; Poulter, 1986, 1987, 1989 and 1998, Jones and Welhengama, 2000). One major reason for this lies in the dominant conceptualisations of ‘law’, apart from the fact that assimilationist assumptions about ethnic minorities in their relation to the law have prevented lawyers from studying ‘the others’ and their norm systems.

Surreptitious attempts to de-culture the debates about legal recognition of ethnic minority patterns of life suggest that we are moving in circles of confusion. Little progress has been made in the past 20 years or so in the field of ethnic minority legal studies in Britain (notable exceptions include Menski at SOAS and Shah at SOAS, Kent and Queen Mary) – in stark contrast with the vigorous development of British immigration law and anti-discrimination law. These now separate legal fields seem to have prospered because they have accepted the challenge of legally sponsored racism (Menski in Jones and Welhengama, 2). It is the intention of the Ethnic Minorities Law Net website to provide a unique resource for all legal academics and students wishing to consider ethnic minority legal studies and to refocus the debate. It will provide a series of stepping stones, to enable the debate between a wide range of groups to the flow. The site aims to provide a resource not only for those involved in learning and teaching ethnic minority law but for all legal academics and students whose subjects are being affected by ethnic minority issues.

In our text (Jones and Welhengama, 2000) whilst concentrating on the legal process we also drew on issues from criminal law, employment law, welfare law and family law. We aimed to provide a detailed examination of the approach of English law to some of the challenges posed by migrants and the subsequent generations of ethnic minority residents in Britain. The responses of the judiciary show significant inconsistencies, judicial analysis in the cases tends to be shallow, and there is a notable lack of conceptual awareness to facilitate a comprehensive strategy for accommodating different norms and customs.

We have examined extensively education, training and attitudes to the values of ethnic minorities (Jones and Welhengama, 2000) and we can merely comment briefly here (see detail in Gibson, 1994). It is our view that considerable progress needs to be made in the development of effective education and training at all levels, from undergraduate legal education through to the key workers in the legal system. The paucity of legal texts and the low numbers of courses offered in institutions concerned with legal education is evidence of neglect in this area.

The project team are in contact with those institutions at present offering such studies and actively seeking the co-operation of these teaching teams in the running of the resource. For example Dr W Menski (SOAS) has agreed to run the main publications arm of the site.

Attitudes of key legal workers

In our text we have highlighted extreme judicial attitudes, for example Judge Ingeborg Bernstein at Liverpool County Court referred to Valentine Reid, a mixed race defendant, as a “nigger in a woodpile” (The Times, 7 February 1996). Despite ‘ethnic’ training, some judges rightly or wrongly believe that there is still the option of enforcing conformity to the predominant culture. In some older cases, judges openly took the view that it was necessary to educate migrants and their descendants about how they should live in this country “according to our way of life” (Mohamed v Knott [1968] 2 All ER 563, at p568) or how they should conduct themselves “without violating the ethos of Christendom” (see Baindail (otherwise Lawson) v Baindail [1946] 1 All ER 342 CA, at pp344-345). Today, such assimilationist comments would not be voiced openly. However, the widespread belief that education of young members of ethnic minorities will lead to a weakening of traditional customs still carries much weight among the legal profession.

Ethnic minority claims for the retention and recognition of customary practices arise particularly in family law cases, causing conflict with a judiciary unwilling or unable to understand differing cultural values. Particularly English courts have struggled with issues of polygamy, marriage solemnisation and validity and divorce involving ethnic groups (for detail see Jones and Welhengama, 2000, ch. 4). As concerns children it is widely acknowledged that the best interest concept in relation to children, now found in s.1 of the Children Act of 1989, is at best indeterminate and at worst deeply ambiguous. We illustrate the problem as expressed by the judiciary themselves. Brenan J commented in Secretary, Department of Health and Community Services v JMB and SMB, FLC 92-93 at 79, 191 [1992]: “In the absence of legal rules or a hierarchy of values the best interests approach depends upon the value system of the decision maker”. Recent initiatives include work undertaken by the Judicial Studies Board and the Ethnic Minorities Advisory Committee (EMAC).

Methodological approaches: analysis of law and its development

Adopting a methodology from feminist jurisprudence (Barnett, 1997) the Ethnic Minorities Law Net site will challenge the perceptions that law is neutral, that legal reasoning is unproblematic and that laws have fixed objective meanings. The stages in the recognition of the failing of English law in relation to ethnic minorities can be summarised as:

Stage 1 – Law is inherently racist

“ But then, as people about the courts know, people of your origin never admit anything, well, hardly anything.”

Stage 2 – Law is inherently white

In Mohamed v Knott [1968] 2 All ER 563) Lord Parker seemed to have a misconception about puberty and physical development of teenagers in the African Continent. Lord Parker believed that young girls of African countries develop earlier than their European counterparts. He states:“it is certainly natural for a girl to marry at that stage. They develop sooner, and there is nothing abhorrent in their way of life for a girl of 13 to marry a man of 25” (p568).

Stage 3 – Law is inherently racial

In feminist literature Carol Smart has argued: “We can begin to analyse law as a process of producing fixed gender identities rather than simply as the application of law to previously gendered subjects.” (Smart, p191). So instead of the law being applied to a pre-existing subject, the law actually creates the subject. The law does not reflect the concepts of the dominant and minority culture, it actually creates them.

Whilst this analysis is at an early stage the project hopes to develop this methodology and publish further on it.

Methodological approaches: assimilationism vs pluralism

There has long been an expectation and an assumption that ethnic minorities would assimilate into English law, allowing their own values to fade. The political debate in the post world war period had a significant impact on the attitudes of both the judiciary and jurists in matters involving ethnic minorities, their customs and their personal laws. Customs were ridiculed or looked upon with disdain and suspicion, personal laws of ethnic minorities were branded by some leading politicians as “insanitary or uproarious” or described as coming “straight from the field” (Lord Elton 1965: 66). Particular disdain was reserved for the customs of migrants of Indian origin for they, unlike migrants from the Caribbean, were more readily perceived as unable or unwilling to adhere so readily to English norms, whether this is in fact the case.

Ethnic minorities, understandably, had no wish to discard their traditions, customs, laws and value systems, often built up over centuries. In the early years following the mass migration of the 1950s and 1960s, customs and personal laws were practised secretly and were not generally a matter of common knowledge. It is now more common for later generations to be open in their demands for recognition of their customs. Rastafarians were more active than other Afro-Caribbeans in asserting their ethnicity. Hindus adopted a lower profile than Muslims and Sikhs. Yet demands for recognition are often interpreted not as a wish to maintain valued customs but as a claim for preferential treatment at the expense of the indigenous white community. Questions are then raised as to why particular ethnic minorities’ customs should be awarded a special place in the English legal system.

A small number of academics have advocated that as an alternative to an expectation of assimilation the legal system should become more pluralistic. The concept of legal pluralism is borrowed from sociologists, and has only recently been introduced to legal studies (Van den Berg 1992: 451; see further McLennan 1995). It has not been encouraged in western European countries, where the predominant view is that different legal systems cannot exist within the one nation state structure. The administration of justice and government has been structured and developed within a monistic structure, and pluralist ideas were considered dangerous to this establishment. Yet this reluctance to accept pluralist theory did not prevent European jurists and policy makers from encouraging former Afro-Asian colonies to practise legal pluralism (Hooker 1975). Recently some scholars have attempted to interpret obligation patterns of sub-groups in industrialised societies in terms of pluralism (Merry 1988: 872: Van den Bergh 1992: 451).

Legal pluralism stands in contradiction to the notion that the law is a single, monolithic, unified set of rules flowing from the state’s hierarchy. Progress towards and acceptance of pluralism has been hampered by the difficulty of finding a sufficiently robust definition of legal pluralism (Griffiths 1986). Griffiths (1986: 1) defined legal pluralism as the “presence in a social field of more than one legal order” (see further Merry 1988: 877; Pospisil 1971; Van den Bergh 1992: 451). This does not mean that more than one rule is applicable to the same situation. The state’s laws still have a role to play in regulating individual behaviour whilst allowing personal laws and customs to be used in matters specific to particular communities. Van den Bergh (1992 :451-454) suggests that pluralism should be viewed not as a situation but as a process that develops over time, a complex pattern of continuous interactions. Many suborderings operate independently, often interacting with each other, most evidently in contemporary multi-ethnic and multi-religious systems.

The upsurge in the number of ethnic groups of Asian and Afro-Caribbean origin in the last four decades has not led to a doctrinal debate on legal pluralism that could inform the thinking of the judiciary. There has been little enthusiasm amongst English lawyers for the doctrine of legal pluralism. The literature is sparse. Of those alluding to the issue many are content with superficial references to the topic (see now Menski 1993: 242). Many of those who have engaged in the debate have done so from a westernised perspective of the role and functions of law. In consequence there has been a tendency to reduce the significance of customary laws by arguing the universal applicability of western law, and to misunderstand and misrepresent the customs operating within the communities of immigrant origin. This then leads to the adoption of an inappropriate methodology in analysing both the validity of customs and their interactions with the dominant law.

Menski is critical of English lawyers’ refusal or inability to recognise these emerging laws and processes. English lawyers, in his opinion, stick to the notion that the unified legal system is the best way forward to deal with disputes and crimes; they continue to peddle the myth that western cultures and legal systems are superior to those of non-western laws; and continue to believe that English law alone should be followed as the law of the land (Menski 1993: 242). A more positive view of such customs of Afro-Caribbeans, Asians and others is that they have continuously been developing and adapting to the needs of new legal and social environments. As one of the pioneering scholars of legal pluralism in British context, Menski’s contribution to the debate on the legal pluralism was not only helpful in destroying the traditional myth about the personal law of ethnic minorities, particularly of Asian background, but also by identifying the areas in which the development of personal laws of ethnic minority groups has taken place.

The role of the project will be to provide not only insights into the assimilation vs pluralism debate but to provide examples of how law students, traditionally schooled in the legal centralist western forms of jurisprudence, can be introduced to pluralistic approaches. An obvious approach would be to take adopt strategies used by the courts when attempting to deal with conflicts of cultural approaches. This includes the use of expert witnesses to provide insights into the ethnic minority laws. These approaches are already used by some academics, although not without its difficulty, as Shah comments (2002):

“I have, however, used expert reports with students to enable them to discuss how legal pluralism could work in practice or, as one colleague recently remarked, that is how one can do legal pluralism. While some students have grasped the equity issues involved here, not all have seen the relevance of such work. Some especially continue to be concerned about minorities being seen to get special treatment in line with concerns expressed by Poulter. I am tempted to interpret this as a result of years of indoctrination about legal uniformity, particularly in the criminal law sphere, where the ‘ethnic’ penalties can indeed be severe.”

Methodological approaches: principles

We imagine the general tenor of the guidelines for teaching and learning materials will be based around the following:

1. choice of topic – does the topic have the potential for bicultural analysis?
2. all teaching materials, resource packs, reading lists and essay guidelines should validate different perspectives
3. format – there is requirement that the concept of race be central
4. language – avoid language that is discriminatory or exclusive. Language is often at the root of oppression and discrimination (Davies, E. 1994) and should be clear, unambiguous and appropriate. Language and the assumptions it betrays should be monitored.
5. assessment – competences judged might be inappropriate. Assessment criteria should be checked for cultural and other bias. Anonymous marking, reading scripts to provide feedback on use of language, the providing of a range of assessments to do justice to peoples aptitudes.

The project website is aimed at being an exemplar in the presentation and use of such materials. Further funding is allowing us to investigate general Web design features and Web interactions that are not culturally biased.

Methodological approaches: transmission to technology

Despite considerable scientific and management literature (Hofstede, 1998) on the issues of cultural perspectives, there is still limited literature in information systems and computer science research on the role that ‘culture’ plays in the design and engineering of complex ICT systems. Such material is often bundled under the term localisation. A recent editorial of the Journal of Electronic Commerce Research commented:

does the&function provided by an Internet-based…application remain consistent across cultural boundaries?

Work (Slay, 2002) has been undertaken on:

• culture and interface design
• cohesiveness of distributed teams working in a technologically mediated manner across national boundaries
• cultural differences in virtual software teams
• cross-cultural perspectives within military ICT development

Ethnic Minorities Law Net will aim to provide guidelines as well as be an exemplar for those wishing to incorporate such material into their teaching. These guidelines will not only include the substantive material, but also how such material should be approached. The site design will take note of the growing literature in relation to culture and ‘localisation’. Localisation can be of differing degrees; at a superficial level it can merely deal with conventions such as date format, currency etc. Fuller localisation addresses deeper cultural characteristics, considering various cultural models and learning styles. It is hoped that the site will develop guidelines similar to those provided by the Web Accessibility Initiative (WAI) for universal access to the Web irrespective of disability.

In addition to the above the site will be highly structured both in terms of resources and users. The main resources on the site are:

1. a resource of learning and teaching materials divided into the main legal subjects – Crime, Public Law, Obligations, European Community, Property Law, Trusts, Immigration andRefugee Law, Family Law, Media Law, International Law. Each subject will be divided into two sections; key resources (major legal sources – cases and statutes – just links) and
2. secondly teaching examples (this may be from a simple seminar question with model answer through to an electronic workbook)
3. a searchable virtual library resource, consisting of bibliographic references to books, articles, reports, statutes, cases – cross referencing from the learning and teaching materials with the following additional areas:
4. ethnic minority experience
5. ethnic conflict
6. individual countries library

The site is not a free text search database, but is heavily structured both in terms of users and of resources. It caters mainly for users that are:

• law teachers:
  • wishing to integrate materials into an existing course
  • wishing to start a specific course on ethnic minorities law
  • wishing to check references to ethnic minorities law materials

• researchers
• causal users

The system links the data to the user so that only appropriate materials are made available to a user who may have limited knowledge of the area. With such a complex structure it was decided to employ a commercial Web design company who have implemented the above specification using commercially available Web-based business data software. The design is similar to the expert knowledge bases developed by the larger law firms.

The site requires registration and the storage of considerable details on users. Whilst this may seem excessive, the data will be used to build the community of scholars interested in such materials. Users are then directed either to the online toolkit (case studies for teaching) or the expert knowledge base (general references and resources). Eventually the user will be directed to relevant materials.

Whilst giving the perception of simplicity, the complexity lies in the fact that resources need to be structured and tagged, that a resource may be needed by a variety of users and that the system must allow updates and uploads with the minimum work from the administrator. These updates may be the replacement or the addition of files; these files need to be categorised automatically. The system provides a mechanism to categorise and tag ‘products’ so that appropriate materials are made available to the user and new products can be added.

References

• Barnett H (1998) An introduction to feminist jurisprudence London: Cavendish
• Davies E (1994) They all speak English anyway Cardiff: CCWTSW
• Lord Elton (1965) The unarmed invasion: a survey of Afro-Asian immigration London: Geoffrey Biles
• Gibson B (1994) ‘Black people and magistrates courts’ Justice of the Peace and Local Government Law 30 April vol 158 no 18
• Griffiths J (1985) ‘Introduction’ in A Allott and G Wordman (eds) Peoples’ law and state law: the Bellagio papers Dordrecht: Foris pp13-20
• Griffiths J (1986) ‘What is legal pluralism?’ Journal of Legal Pluralism and Unofficial Law pp1-56
• Hofstede G (1998) ‘A case study for comparing apples and oranges: international differences in values’ in M Sasaki (ed) Values and attitudes across nations and time Leiden: Brill
• Hooker M (1975) Legal pluralism: an introduction to colonial and neo-colonial laws Oxford: Clarendon
• Jones R and Welhengama G (2000) Ethnic minorities in English law London: Trentham Books
• McLennan G (1995) Pluralism Buckingham: Open University Press
• Menski W (1987) ‘Legal pluralism in the Hindu marriage’ in R Burghart (ed)
  Hinduism in Great Britain London: Tavistock pp180-200
• Menski W (1988) ‘English family law and ethnic laws in Britain’ Kerala Law Times vol 1 pp55-66
• Menski W (1993) ‘Asians in Britain and the question of adaptation to a new legal order: Asian laws in Britain’ in Israel, Milton and Wagle (eds) Ethnicity, identity, migration: the South Asian context Toronto: University of Toronto
• Merry S (1988) ‘Legal pluralism’ Law and Society vol XXII pt 5 pp869-896
• Pearl D (1972) ‘Muslim marriages in English law’ in 30 Cambridge Law Journal pp120-143
• Pearl D (1986) Family law and the immigrant communities Bristol: Jordan
• Pospisil L (1971) Anthropology of law: a comparative theory London: Harper and Row
• Poulter S (1984) ‘The significance of ethnic minority customs and traditions in English criminal law’ New Community vol16 [1]
• Poulter S (1986) English law and ethnic minority customs London: Butterworths
• Poulter S (1987) ‘Ethnic minority customs, English law and human rights’
  ICLQ vol 36 pp589-615
• Poulter S (1990) Asian traditions and English law: a handbook London: Runnymede Trust with Trentham Books
• Poulter S (1998) Ethnic minorities and human rights London: OUP
• Preston-Shoot M (1998) Acting fairly: working within the law to promote equal opportunities in education and training London: CCETSW
• Shah P (2000) Refugees, race and the legal concept of asylum in Britain London: Cavendish
• Shah P (2002) Preliminary reflections on teaching ethnic minorities and the law (paper presented at the Association of Law Teachers Annual Conference 24-26 March, University of Greenwich, London)
• Slay J (2002) ‘Towards a mature understanding of “culture”’ in
  Information Systems Research (unpublished workshop paper)
• Smart C (1995) Law, crime and sexuality London: Sage
• Van den Bergh G (1992) ‘Legal pluralism in Roman law’ in C Verga (ed)
  Comparative legal cultures New York: New York University Press pp338-350

Richard Jones is Reader in Law and Information Technology in the
School of Law at Liverpool John Moores University.

Last Modified: 12 July 2010