The insurmountable problems of parallel legal systems

By LSS member Daniel Anderson *

The attempts to establish parallel legal systems can in fact be seen as a project to transfer legal rights away from people and to groups instead.

Certain groups, usually based on a culture or religion, are deemed by proponents of parallel legal systems as worthy of having their own separate legal rights, and so parallel legal systems are consequently proposed to make this a reality.

But this attempt to transfer legal rights to groups causes problems that the advocates of parallel legal systems can only fail to address. Below are some of these problems.

Problem: not all people within the group will actually be part of the group

Some people may decide not to be part of a group by choice. Some people may be unwilling to be part of a group due to that group being perceived as having a marginalised status within society. Furthermore, some people may decide to voluntarily leave a group. And some people may be forced out of a group due to being declared ‘heretics’.

What happens to all these people if legal rights are to be transferred to the group that they supposedly belong to? The advocates of parallel legal systems are silent on this point.

Problem: not all people within a group think the same way

Advocates of parallel legal systems seem blind to the reality of human individuality. Put another way, they seem unable to comprehend the simple fact that not everyone within a group will think exactly the same about everything as other individuals within that group.

Therefore, who gets to decide which thoughts within the group take precedence over others when granting that group legal rights? Unfortunately, we get no answers from the advocates of parallel legal systems.

Problem: people within groups can cause harm to each other too

This is an ugly fact, and it is one which proponents of parallel legal systems often hurriedly gloss over. This observation is perhaps best encapsulated by the term “minority within a minority”. And such scenarios inevitably crop up because the rights of minorities within the group end up being sacrificed to the deemed needs of the collective whole.

One example of this can be seen by examining the status of those classed as ‘Untouchables’ within Hindu culture. Those classed as ‘Untouchables’ are held to be at the very bottom of the scheduled castes, and so widespread discrimination by the upper castes is permitted against them in public, in areas such as education, employment, healthcare and the criminal justice system (see this UK government report on caste discrimination in the UK today, which suggests that as many as 200,000 people may be affected; and for an analysis of the present problem in India see this piece).

How are the legal rights of those within a group to be protected from attacks by others within the same group? Again, the advocates of parallel legal systems simply have no answers.

Problem: people of different groups interact with each other in wider society

The advocates of parallel legal systems appear to share a dystopian vision of society where humans only interact with other humans within the rigid confines of their own groups. People within such groups would, or should, apparently stay confined in their own parallel legal system bubbles.

This, thankfully, is still not the society we live in. People of different groups (and of no group) can and do interact in wider society. And when people of different groups (and of no group) do interact in wider society then sometimes disputes will occur; these disputes will naturally require resolution by the law of the state.

Such scenarios of people intermingling are, again, not covered by the advocates of parallel legal systems. No advocate has been able to address what happens when disputes arise between people of different groups (or of no group).

The practical impossibility of transferring legal rights to groups

In essence all the above problems demonstrate the practical impossibility, not to mention undesirability, of transferring legal rights from individuals to groups. And this can perhaps be best summarised by Dr B.R. Ambedkar who wrote in Annihilation of Caste:

“A statesman is concerned with vast numbers of people. He has neither the time nor the knowledge to draw fine distinctions and to treat each one equitably, i.e. according to need or according to capacity. However desirable or reasonable an equitable treatment of men may be, humanity is not capable of assortment and classification. The statesman, therefore, must follow some rough and ready rule, and that rough and ready rule is to treat all men alike, not because they are alike but because classification and assortment is impossible”

This impossibility became all too readily apparent when I previously examined the arguments of the advocates of parallel legal systems. No one really knew what each advocate was proposing as an alternative parallel legal system. Despite their valiant attempts, we were simply left with legal mush.

The solution: legal rights to remain attached to people

The solution is obvious: legal rights must remain attached to people as part of a secular legal system. As people we can all be easily defined on the basis that we are members of the human species: you, me and everyone else. And despite all of our many differences, due to the nature of human individuality, we as people all have one thing in common: our capacity to reason. In the words of Immanuel Kant in the Groundwork of the Metaphysics of Morals:

“I say that man, and in general every rational being, exists as an end in himself, not merely as a means for arbitrary use by this or that will”

And:

“Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end”

It is high time that we gave the attempts to transfer legal rights to groups short shrift. Attempts to transfer legal rights away from people to groups invariably run into insurmountable problems which the advocates of parallel legal systems simply cannot ever hope to overcome. Instead it is time we reasserted the principle that legal rights apply to people; because, as people, we all have an inherent worth from our capacity to reason which no group – and no “group leader” – should be able to take away.

* Daniel Anderson was an LSS member from Oct 2014 to Jul 2015 


Views expressed are not necessarily those of the LSS

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