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Minority Religions under Irish Law

Islam in National and International Context

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Edited by Kathryn O'Sullivan

Minority Religions under Irish Law focuses the spotlight specifically on the legal protections afforded in Ireland to minority religions, generally, and to the Muslim community, in particular. Although predominantly focused on the Irish context, the book also boasts contributions from leading international academics, considering questions of broader global importance such as how to create an inclusive environment for minority religions and how to regulate religious tribunals best. Reflecting on issues as diverse as the right to education, marriage recognition, Islamic finance and employment equality, Minority Religions under Irish Law provides a comprehensive and fresh look at the legal space occupied by many rapidly growing minority religions in Ireland, with a special focus on the Muslim community.

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Eoin Daly

Abstract

The Constitution of Ireland ostensibly provides an elaborate framework of rules and principles underlying the accommodation of religious minorities. However, this constitutional framework is characterised by indeterminacy rather than any ideological distinctiveness or coherence. It oscillates between two contradictory approaches towards religion, one focused on ‘neutrality’, and another on ‘recognition’. In this contribution, I outline how these contradictory constitutional doctrines, both present in the text, may inform laws and policies relevant to accommodation of minority religious practices.

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Claire Hogan

Abstract

This article looks at the current level of accommodation of Islam in Irish education, employment and healthcare law, and attempts to predict future accommodation trends. The Irish legal system is very accommodating towards religion, but thus far has not experienced many claims from religious minorities. In the area of employment law, the Employment Equality Acts 1998-2015 protect employees against both direct and indirect discrimination. There have been some examples of claims in employment tribunals, however there are no Court decisions as of yet and no key principles emerging on the extent to which employers must accommodate religiously-motivated adjustments to uniform or working day. In the education arena, the school system is dominated by the Catholic Church, especially at primary level. This has the potential to make the rights of religious minorities quite precarious, especially in towns where there is only one primary school. There is strong protection for religious ethos in schools in constitutional case law. The headscarf has been permitted, with 2008 Government Guidelines suggesting that uniform policy is a matter for each individual school. Finally, in the hospital setting there is also a strong Catholic influence which continues to be felt. There are particular Muslim healthcare requirements which may call to be accommodated in the future. The author concludes that the constitutional ‘public order and morality’ constraint on freedom of religion is likely to be of importance in future cases involving accommodation of religion claims. It is also inevitable there will be clashes between fundamental rights including freedom of religion, the right to life, and the right to gender and sexual orientation equality.

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Edana Richardson

Abstract

The Islamic finance industry has continued to mature and diversify, with an expanding range of Islamic finance products progressively coming to market. Authorities in a number of jurisdictions, such as the United Kingdom, have actively sought to facilitate Islamic finance activity within their domestic economies. Consistent with this, Irish authorities have also taken some interest in the Islamic finance market. In doing so, they have introduced guidance and legislative amendments to address legal hurdles that may hinder the development of a level playing field between Islamic and conventional finance under Irish law. Looking at Islamic mortgage-alternatives and the religious supervisory boards of institutions engaged in Islamic finance, this chapter offers a comparative discussion of the accommodative measures and guidance introduced by Irish authorities to date. It also considers further legal clarifications and reforms that may be needed if the Islamic finance industry is to continue to develop in Ireland.

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Kathryn O’Sullivan

Abstract

The legal protections that are afforded – or, in many cases, are not afforded – to religious minorities right across the world are attracting increased attention. Although concern for the plight of religious minorities is certainly not confined to Western democracies, nor is it invariably related to the rapidly growing Muslim communities in such countries, migration patterns across, in particular, the Twentieth Century, from Muslim majority countries to Western, usually Christian majority, countries has in no small way contributed to placing the spotlight on these protections. This chapter highlights Ireland’s specific relationship with migration and highlights the importance of understanding how new minority, especially non-Christian, religions fit into the social and legal context in Ireland.

Law, Religion and Religious Minorities

Reflections on International Human Rights Law and Global Trends

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M. Christian Green

Abstract

This chapter examines questions of law, religion, and religious minorities in international and comparative perspective. It describes a recent shift in international human rights law on religion from viewing religious freedom in primarily individual terms to a new recognition of groups and group rights and the implications of this shift for religious minorities. It then comparatively examine a new and emerging focus on religious minorities in some of the most difficult parts of the world to be a religious minority, namely the South Asian nations of Pakistan, India, and Sri Lanka, as well as nations in Southeast Asia. It then explores questions of recognition of identity and equality versus nondiscrimination in connection with religious minorities, with specific comparison to the fraught issue of same-sex marriage in the United States and Australia and the question of whether conservative religious groups deserve protection or exemption from laws mandating nondiscrimination toward and equal treatment of religious and other minorities. The chapter concludes, picking up on its opening theme, with some brief reflections on Muslim minorities in the U.S. and Irish contexts.

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Amin Al-Astewani

Abstract

The significant increase in the size of the Irish Muslim population over the last three decades renders the likelihood of Irish Shariah Councils emerging in the near future a particularly strong possibility. The emergence of such councils will raise a number of contentious socio-legal issues, the most prominent of which will arguably be how the Irish legal system should respond. This chapter seeks to examine the regulatory model currently used by the English legal system for governing UK Shariah councils in order to assess whether this could be adopted by the Irish legal system. The chapter begins by comparing the general legal framework with regards to the accommodation of religious tribunals in both the Irish and English legal systems. It then closely examines the particular framework adopted by the English legal system for the regulation of Shariah councils. The chapter concludes by evaluating the potential for this framework to be adopted within the Irish legal system, should Shariah councils emerge within its jurisdiction. The chapter thus arranged marks a novel and ground-breaking contribution to the literature of religious tribunals within Western legal systems.