Diverse cultures and official laws: multiculturalism and Euroscepticism?

Abstract

Normative pluralism refers to a social fact: the co-existence of different bodies of norms within the same social space. State legal pluralism indicates a single overarching national legal system but plural laws, the state recognising different rules for specific categories of persons. However, the equating of multiculturalism and legal pluralism with state law is challenged. In the modern unitary nation state of the Western type only a weak version of legal pluralism in which state centralism still prevails is acceptable. Below it is advanced that in this state the accommodation of cultural diversity and multiple normative orders can only be brought about by the judge, the tuner or the navigator and steersman of the law, by using discretion and creative interpretation and not by the legislators, whose main demarcation lines are clearly drawn within domestic law by the Constitution, and within Europe and within the EU by the demands of human rights and 'ever closer integration'. In both of the critical illustrations below - the equality of the spouses in Turkish family law and the General Principles of the CEFL on divorce and maintenance - more scope should be given to judges to cope with and to create the necessary 'fit' between law and culture that do not coincide.