A Critical Legal Pluralist Analysis of the Begum Case

25 Pages Posted: 24 Oct 2010 Last revised: 6 Feb 2011

Date Written: October 22, 2010

Abstract

This paper considers the advantages of a critical legal pluralist analysis of the English case R (on the application of Begum) v. Headteacher and Governors of Denbigh High School [2007] 1 AC 100. The case concerns whether a state school’s decision to exclude a pupil (Shabina Begum) for wearing an Islamic veil (a jilbab, which is a long coat-like garment which covers the whole body except the hands and face) infringed her right to manifest her religion and her right to an education protected under Articles 9 and 2 (of the First Protocol) of the European Convention of Human Rights 1950. The various court decisions of the case determine that both Articles 9 and 2 cannot be relied upon for claims related to the accommodation of religious dress in state schools. Compared with doctrinal legal scholarship and traditional legal pluralist analyses of the case, both criticised for essentialising normative orders and communities, a critical legal pluralist analysis provides the advantage of focusing on the subjective beliefs of a legal subject. Undertaking a critical legal pluralist approach as a legal methodology, rather than more traditional legal analyses, exposes and defeats various assumptions which surround the practice of veiling.

Keywords: Religion, family and personal law, the English legal system, law-making, legal pluralism

JEL Classification: Z12, K36, K41, K49

Suggested Citation

Jackson, Amy, A Critical Legal Pluralist Analysis of the Begum Case (October 22, 2010). Osgoode CLPE Research Paper No. 4/2011, Available at SSRN: https://ssrn.com/abstract=1696191 or http://dx.doi.org/10.2139/ssrn.1696191

Amy Jackson (Contact Author)

University of Reading ( email )

Whiteknights
Reading, Berkshire RG6 6AH
United Kingdom

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