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Jivraj, Suhraiya; Herman, Didi (2009)
Publisher: Jordan Publishing Ltd
Languages: English
Types: Article
Subjects: K
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    • 1 Re S (Change of Names: Cultural Factors) [2001] 3 FCR 648, Wilson J.
    • 2 For critiques of secularism as a concept, see T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford University Press, 2003) and H. De Vries, Introduction in H. De Vries and L. Sullivan (eds), Political Theologies (Fordham University Press, 2006), J.R. Jakobsen and A. Pellegrini (eds), Secularisms (Duke University Press, 2008), and H. De Vries, Religion, Beyond a Concept (Fordham University Press, 2008).
    • 4 A. Bradney, Religion, Rights and Laws (Leicester University Press, 1993); R. Ahdar, 'Indigenous Spiritual Concerns and the Secular State: Some New Zealand Developments' (2003) 23 Oxford Journal of Legal Studies 611; R. Adhar, 'Religion as a factor in custody and access disputes' (1996) 10 International Journal of Law, Policy, and the Family 177-204; R. Ahdar and I. Leigh, Religious Freedom in the Liberal State (Oxford University Press, 2005); S. Poulter, Ethnicity, Law and Human Rights (Oxford University Press, 1999).
    • 5 See J. Eekelaar, 'Children between cultures' (2004) 18 International Journal of Law, Policy and the Family 178; M. Freeman, 'Whose life is it anyway?' (2001) 9 Medical Law Review 259; P. Hayes, 'Giving due consideration to ethnicity in adoption placements - a principled approach' (2003) 15(3) CFLQ 255; R. Jones and W. Gnanapala, Ethnic Minorities in English Law (Trentham Books, 2000); Y. Ronen, 'Redefining the child's right to identity' (2004) International Journal of Law, Policy and the Family 147-177; S. Van Praagh, 'Faith, Belonging, and the Protection of Our Children' (1999) XVII Windsor Yearbook of Access to Justice 154-203.
    • 6 I. Gaber and J. Aldridge (eds), In the Best Interests of the Child: Culture, Identity and Transracial Adoption (Free Association Press, 1994); E. Griffith and I. Silverman, 'Transracial adoption and the continuing debate over the racial identity of families' in H. Harris, H. Blue and E. Griffith (eds), Racial and Ethnic Identity: Psychological Development and Creative Expression (Routledge, 1994); L. Hollingsworth, 'Adoptive dissimilarity from the adoptive family: clinical practice and research implications' (1998) 15(4) Child and Adolescent Social Work Journal 3003-3019; M. Husain and S. Husain, ' Mix'n'Match' in R. Phillips and E. McWilliam (eds), After Adoption: Working with Adoptive Families (BAAF, 1996); D. Kirton, 'Race', Ethnicity and Adoption (BAAF, 1996).
    • 7 For example, M. Fox and J. McHale, 'In whose best interests?' (1997) 60 Modern Law Review 700-709.
    • 8 H. Gilbert, 'Time to reconsider the lawfulness of ritual male circumcision' (2007) European Human Rights Law Review 279-294.
    • 9 M. Fox and M. Thomson, 'Short changed? The law and ethics of male circumcision' (2005) 13 International Journal of Children's Rights 161-181; M. Fox and M. Thomson, 'A covenant with the status quo? Male circumcision and the new BMA guidance to doctors' (2005) 31 Journal of Medical Ethics 463-469; see also M. Thomson, Endowed: Regulating the Male Sexed Body (Routledge, 2008), especially ch 2. See also K. Green and H. Lim, 'What is this thing about female circumcision?: Legal education and human rights' (1998) 7 Social & Legal Studies 365-388. While Green and Lim's article is about female circumcision, a topic we do not address in any way here, their focus on the 'western-centred universalism', at ibid p 366, inherent in much of the anti-female circumcision discourse, is similar to how we approach understanding anti-male circumcision discourse, as we discuss further below.
    • 10 The quote from Brazier is from a conference paper, 'Children's Interests: Community Norms' (1997), quoted in C. Bridge, 'Religion, culture, and conviction - the medical treatment of young children' (1999) 11(1) CFLQ 1.
    • 11 C. Bridge, ibid.
    • 12 Nor do we seek to advance a normative position about circumcision itself. But see J. Eekelaar, 'Children between cultures' (2004) 18 International Journal of Law, Policy and the Family 178; P. Hayes, 'Giving due consideration to ethnicity in adoption placements - a principled approach' (2003) 15(3) CFLQ 255; and Y. Ronen, 'Redefining the child's right to identity' (2004) International Journal of Law, Policy and the Family 147-177.
    • 13 E.W. Said, Orientalism (Vintage, 1979), at pp 6-7, re-published with new Afterword in 1994.
    • 14 See also R. Lewis, Gendering Orientalism (Routledge, 1996).
    • 15 E.W. Said, Orientalism (Vintage, 1979), at p 43.
    • 16 Ibid.
    • 17 Eg, C. Smart, 'The woman of legal discourse' (1992) 1 Social & Legal Studies 29; R. Graycar and J. Morgan, The Hidden Gender of Law (Federation Press, 2nd end, 2002).
    • 18 See, for example, R. Delgado, J. Stefanic, A. Harris (eds), Critical Race Theory (Federation Press, 2001); K. Crenshaw, N. Gotanda, G. Peller and K. Thomas (eds), Critical Race Theory: The Key Writings That Formed the Movement (New York University Press, 1996); A. Wing, R. Delgado, D. Bell (eds), Critical Race Feminism: A Reader (New York University Press, 2003). For critical race readings of Jews and Jewishness in English law, see D. Herman, 'Jews and other Uncertainties: Race, faith and English law' (1999) 19 Legal Studies 339-366 (with D. Cooper); D. Herman, ' “An Unfortunate Coincidence”: Jews and Jewishness in 20th century English Judicial Discourse' (2006) 33 Journal of Law and Society 277-301; D. Herman, ' “I do not attach great significance to it”: Taking note of “the Holocaust” in English Law' (2008) 17 Social & Legal Studies 427-452.
    • 19 B. Cheyette, Construction of 'The Jew' in English Literature and Society (Cambridge, 1993). More recently, see also N. Valman, The Jewess in Nineteenth-Century British Literary Culture (Cambridge, 2007).
    • 20 See T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford University Press, 2003) and H. De Vries' Introduction in H. De Vries and L. Sullivan (eds), Political Theologies (Fordham University Press, 2006); J.R. Jakobsen and A. Pellegrini (eds), Secularisms (Duke University Press, 2008) and H. De Vries, Religion, Beyond a Concept (Fordham University Press, 2008). See also: W. Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton, 2006); J. Butler, 'Sexual politics, torture, and secular time' (2008) 59 The British Journal of Sociology 1-23; A. Bonnett, The Idea of the West: Culture, Politics and History (Palgrave, 2004).
    • 21 On the concept of racialisation, see M. Omni and H. Winant, Racial Formations in the United States: From the 1960s to the 1990s (Routledge, 1994); D. Goldberg, The Racial State (Blackwell, 2001). For a child welfare analysis using the concept of 'racial ideologies', see M. Kline, 'The “colour” of law: Ideological representations of First Nations in legal discourse' (1994) 3 Social & Legal Studies 451-476. For further elaboration of 'racialisation' see also R. Miles and M. Brown, Racism (Routledge, 2003) and R. Miles, Racism and Migrant Labour (Routledge, 1982) discussed in more detail below.
    • 22 See also K. Green and H. Lim, 'What is this thing about female circumcision?: Legal education and human rights' (1998) 7 Social & Legal Studies 365-388. We are conscious that we downplay agency - of the litigants, other actors, or other discourses - in favour of a focus on judicial discourse. However, it is the agency of the judiciary that we wish to highlight in this paper.
    • 23 Much of this scholarship is referenced in and engaged with by the contributions to J.R. Jakobsen and A. Pellegrini (eds), Secularisms (Duke University Press, 2008).
    • 24 Ibid.
    • 25 Ibid. See also H. De Vries, Religion, Beyond a Concept (Fordham University Press, 2008), at p 11.
    • 26 Obviously, secularism takes non-Christian forms elsewhere.
    • 27 It is worth noting that whilst this Christian cultural hegemony has been more widely acknowledged in the context of law and society in the USA (J.R. Jakobsen and A. Pellegrini (eds), Secularisms (Duke University Press, 2008)) and N. Rosenblum, Obligations of Citizenship and Demands of Faith: Religious Accommodation in Pluralist Democracies (Princeton, 2000), it is relatively unremarked upon in the context of English law, although see A. Bradney, Religion, Rights and Laws (Leicester University Press, 1993), and A. Bradney, Faith in A Sceptical Age (Routledge-Cavendish, 2009); also, D. Herman, ' “An Unfortunate Coincidence”: Jews and Jewishness in 20th century English Judicial Discourse' (2006) 33 Journal of Law and Society 277-301.
    • 28 See W. Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton, 2006); J. Butler, 'Sexual politics, torture, and secular time' (2008) 59 The British Journal of Sociology 1-23. Also S. Motha, 'Veiled women and the affect of religion in democracy' (2007) 34 Journal of Law and Society 139-162 and 'Liberal cults, suicide bombers, and other theological dilemmas' (2008) 5(2) Journal of Law, Culture and the Humanities 228.
    • 29 [1990] FCR 881.
    • 30 [1990] 1 FCR 891.
    • 31 [1995] 2 FCR 749.
    • 32 [1999] 2 FLR 678 and [2000] 1 FLR 571.
    • 33 [2000] Fam 15.
    • 34 [2001] 3 FCR 648.
    • 35 [2002] 1 FLR 1119.
    • 36 [2004] EWHC 1282.
    • 61 J.R. Jakobsen and A. Pellegrini (eds), Secularisms (Duke University Press, 2008), at p 11.
    • 62 Re J [2000] 1 FLR 571, at p 575.
    • 63 Ibid.
    • 64 Ibid, at p 577.
    • 65 P. Edge, 'Male circumcision after the Human Rights Act 1998' (2000) 5 Journal of Civil Liberties 320, at p 336. For C. Bridge see: 'Religion, culture, and conviction - the medical treatment of young children' (1999) 11(1) CFLQ 1.
    • 66 See, for example, S. Gilman, The Jew's Body (Routledge, 1991) and J. Katz, From Prejudice to Destruction: Antisemitism, 1700-1933 (Harvard, 1980).
    • 67 H. Gilbert, 'Time to reconsider the lawfulness of ritual male circumcision' (2007) European Human Rights Law Review 279-294, at p 289.
    • 68 M. Thomson, Endowed: Regulating the Male Sexed Body (Routledge, 2008), at p 22. See also Green and Lim's discussion of 'the child' in feminist anti-female circumcision discourse: 'What is this thing about female circumcision?: Legal education and human rights' (1998) 7 Social & Legal Studies 365, at pp 376-378. Consequences such as uncircumcised males not being accepted as properly Jewish or Muslim by many orthodox Jewish or Muslim communities are also ignored by these writers. This could affect their burial choices, amongst other things.
    • 69 The title of one of Fox and Thomson's pieces, 'A covenant with the status quo' (see fn 9 above), exemplifies this problem, evoking, as it does, a biblical Israelite attempting to ritually sacrifice his son. We note that Fox's earlier work, M. Fox and J. McHale, 'In whose best interests?' (1997) 60 Modern Law Review 700-709, is more nuanced with respect to discussions of culture.
    • 70 See S. Motha, 'Veiled women and the affect of religion in democracy' (2007) 34 Journal of Law and Society 139-162 and 'Liberal cults, suicide bombers, and other theological dilemmas' (2008) 5 Journal of Law, Culture and the Humanities 228-246; S. Razack, 'Imperilled Muslim Women, Dangerous Muslim Men and Civilised Europeans: Legal and Social Responses to Forced Marriages' (2004) 12 Feminist Legal Studies 129-174; A. Vakulenko, 'Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends' (2007) 7(4) Human Rights Law Review 717-739.
    • 71 See also T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford University Press, 2003), at pp 59 and 106-115.
    • 72 There is also a different argument to make - which we are not able to pursue here. Following S. Gilman, The Jew's Body (Routledge, 1991), one could argue that anti-circumcision scholars' focus on the 'lack' of foreskin from circumcision, and its consequences for masculinity, replicate a much earlier discourse about Jewish (lack of) masculinity.
    • 73 See J. Katz's study: From Prejudice to Destruction: Antisemitism, 1700-1933 (Harvard, 1980). We are not suggesting this is the only way that circumcision has been read in the west (see M. Fox and M. Thomson, 'Short changed? The law and ethics of male circumcision' (2005) 13 International Journal of Children's Rights 161-181; however, our argument is that contemporary denunciations of it evoke this older discourse and that this is problematic in this current era.
    • 74 This secular rationality is also applied to Christians who stray too far into the realm of the 'miraculous', see eg NHS v A [2007] EWHC 1696, or away from 'forgiveness', see Re R (A Minor) (Residence: Religion) [1993] 2 FLR 163.
    • 75 Taking a more historical approach, we can see that this is not surprising as Christianity has always only been able to conceptualise both Judaism and Islam as an orthodox other as it has required clear binaries for its own Christianisation project, as it has always required converts, see D. Boyarin, 'The Christian Invention of Judaism: The Theodosian Empire and the Rabbinic Refusal of Religion' in H. De Vries, Religion, Beyond a Concept (Fordham University Press, 2008), at p 168.
    • 76 K. Green and H. Lim, 'What is this thing about female circumcision?: Legal education and human rights' (1998) 7 Social & Legal Studies 365, at p 382.
    • 77 R. Miles and M. Brown, Racism (Routledge, 2003) define racialisation as 'a representational process whereby social significance is attached to certain biological (usually phenotypical) human features, on the basis of which the people possessing those characteristics are designated as a distinct collectivity' (at p 100). R. Miles, Racism and Migrant Labour (Routledge, 1982) uses the concept of racialisation as a
    • 102 Ibid, at p 494.
    • 103 Re S [2001] 3 FCR 648.
    • 104 Ibid, at p 660.
    • 105 Ibid. Child welfare cases on Jewish, Muslim, and Sikh identity can not be read entirely outside the context of race relations jurisprudence, most particularly Mandla v Dowell Lee [1982] 3 All ER 1108 and its progeny. The courts in our cases never refer to or cite these others, however, child welfare law must be in some part influenced by, for example, the fact that 'Jewish' and 'Sikh' are recognised 'ethnic groups' under the Race Relations Act, and 'Muslim' is not. We are not able to pursue these linkages here, however, see D. Herman, ' “I do not attach great significance to it”: Taking note of “the Holocaust” in English Law' (2008) 17 Social & Legal Studies 427-452; Jews and Jewishness in English Law (Oxford, 2011 forthcoming) for a detailed discussion of Jews and Jewishness in English race relations law. See also N. Bamforth, M. Malik, C. O'Cinneide and G. Bindman, Discrimination Law: Theory and Practice (Sweet & Maxwell, 2008).
    • 106 Re JK (Transracial Placement) [1990] 1 FCR 891.
    • 107 Ibid, at p 651. See also Re B [1995] 3 All ER 333, at p 341 where Simon Brown J refers to 'deep hostility' between 'opposing' groups of Jews and Arabs. See also S. Jivraj, (forthcoming PhD) for further exploration of this latter case.
    • 108 Note that London's east end was historically subject to such depictions, see J. Walkowitz's many important works, for example, perhaps most intriguingly, in terms of intersections of race, class, and religion, 'The Indian Woman, the Flower Girl, and the Jew: Photojournalism in Edwardian London' (1998-1999) 42 Victorian Studies 3-46.
    • 109 T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford University Press, 2003), at p 59.
    • 110 E.W. Said, Orientalism (Vintage, 1979), at p 301.
    • 124 We see this approach in some of the cases in another legal area relating to children - the education law field dealing with children with 'special needs', for example, see R v Secretary of State for Education ex parte E [1996] ELR 312 and A v SENT, LB Barnet [2004] ELR 293. See also D. Herman, Jews and Jewishness in English Law (Oxford, forthcoming 2011) for further discussion of this area of law.
    • 125 E.W. Said, Orientalism (Vintage, 1979), at p 15.
    • 126 A related enquiry, but one we can not accomplish here, is to pursue representations of Christianity in English case law. This is work that has yet to be done, however, for some discussion see D. Herman's earlier work with D. Cooper: 'Jews and other Uncertainties: Race, faith and English law' (1999) 19 Legal Studies 339-366. In that piece, we discuss the representation of Anglicanism in Re Allen [1953] 2 All ER 898.
    • 127 E.W. Said, Orientalism (Vintage, 1979), at pp 23 and 273.
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