Minority Legal orders in Greece and in the UK : A comparison of religious institutions that “enforce” a minority legal order

Eleni Velivasaki 

Legal Assistance Unit/Greek Council of Refugees

The majority of modern states’ laws in Europe are dominated by the doctrine of legal centralist ideology according to which the only law is state law, the law sanctioned by the legitimate authority of the state. At the same time, the increasing pluralization of western societies underscores the existence of multiple forms of normative social regulation denoting, that legal reality is plural and not monolithic. Still today questions about the function of the law in society and the position that law reserves for religion remain fundamental and highly topical.

Yet, whatever the officially awarded place to minority religions and laws, minority legal orders, namely forms of normative social regulation distinct to the state regulations, do exist and reconstruct the already plural legal reality of modern states.

In the UK, Muslim dispute resolution structures occasionally referred to as "shari’a tribunals" or "shari’a councils" have emerged in order to meet the needs of Muslim communities for guidance, regulation and resolution of disputes especially on family and civil matters. English law, by means of conventional legal channels of legislature and judicial interpretation, has been to an extent pluralized accommodating certain religious and cultural needs of the muslim communities. Yet, there exists reluctance to grant any recognition to Islamic law as part of English law. Islamic law is treated like any other ethnic minority laws, as mere customs or cultural practices.This has not only pushed the application of Islamic law to the realm of unofficial but it has also lead to the creation of new hybrid forms like the one found in Britain and the flourish of the informal dispute resolution practice undertaken mainly by the Shari’a Councils.

Whereas Muslims in the UK have officially seen their claims for some accommodation of their religious law negated, Greek legislation envisages an Islamic personal law system to be applied to a specific category of Greek citizens. The members of the minority of the Western Thrace are exempted – on an optional or compulsory basis (positions vary in Greek legal theory) – from the jurisdiction of Greek courts; instead they are subjected to the jurisdiction of the Mufti. The Mufti has judicial competence to adjudicate in private disputes of inheritance and family matters and thus the Mufti is not only a religious leader of the minority but also a special court of exceptional jurisdiction.

While English law is reluctant to grant any official recognition to Islamic law as part of state law and Islamic law is treated like any other ethnic minority laws, as mere customs or cultural practices, Greek law officially recognizes Islamic law as the applicable law in family law issues.

Looking at the cases of Greece and UK, the current research aims to assess the extent and modes of application of minority legal orders, as well as the interaction of the minority communities themselves with state law and the reconstruction of their legal orders. In addition, it purports to identify and evaluate certain state responses, namely those of Greece and UK, to cultural and religious diversity.  To this aim it examines two a priori different examples of religious institutions, yet both involved in religious guidance and dispute resolution interpreting and implementing rules stemming from a minority legal order: the institution of the Mufti in Western Thrace and Muslim dispute resolution and religious guidance structures in the UK.

Analyzing the conditions of establishment and operation of these religious bodies the current study aspires to evaluate how a minority legal order is applied, ‘enforced’ and reconstructed through interpretation, religious guidance and dispute resolution.