Prize Scholar: Tristan Cummings

A Reflexive Approach to Law and Religion – Negotiating the Boundaries between ‘Un-connecting Worlds’

Multicultural societies face a common challenge: how are the rights of religious citizens best to be protected whilst also enabling them to order their family lives around the values that matter to them? As societies have become more complex they have also become increasingly functionally differentiated with distinct ‘social systems’ emerging such as law, religion, the family and the market. Each of these have developed specialised ‘codes’ that they use to understand the world.

For some religious individuals, especially those who occupy marginalised positions within these groups, this social complexity creates a tension between their religions and the general law. It is this dissonance, whether in determining if a couple is married or how they are to divide assets on separation, that generates ‘multicultural vulnerabilities’ especially in respect of guarantees of human rights and equality.

Existing solutions to this dissonance and the vulnerability it creates have attempted to reconcile this tension in various ways, yet vulnerable religious individuals continue to face these conflicts between their religion and their rights. How is this to be resolved? My research focuses on these questions. I suggest that we need to take a necessary shift to a ‘Reflexive’ mode of regulating religious family laws. In simpler terms, this means the regulation of self-regulation. Reflexive secularity seeks to steer the self-regulatory potential within religious systems under conditions of equality. My research explores how rejecting a strict separation of law and religion and the primacy of ‘command and control’ interventions, can better balance respect for privacy and religious freedom without abandoning our commitment to human rights.