Family Law Issues in a Multicultural Setting: Abolishing or Reaffirming Sex as a Legally Relevant Category? A Human Rights Approach

Abstract

In the Netherlands, and more generally in Western Europe, the influx of large immigrant groups brings along all kinds of multicultural challenges. In this contribution I will address the question how to deal with the divergent norms and values new groups bring along. Should newcomers be required to assimilate or should society, on the contrary, leave ample space for their divergent norms and values? And if the latter, how far should we go in this respect, especially in those situations where the imported norms and values clash with those prevalent in the host-society? This paper will focus on one of the areas where this problem is most keenly felt as problematic, the area of family law issues. Here, especially Islamic norms and values potentially clash with the fundamental right to equal treatment without discrimination on the basis of sex. The discussion how far we should go in accommodating and incorporating Islamic norms and values in our legal system is most of the time conducted in political/philosophical terms. Though this discussion is highly interesting and important, this contribution chooses a different, legal perspective, and more specifically, the perspective of human rights. The reason to do so lies in the fact that in the European legal setting human rights norms increasingly seem to set the framework for and provide the limits within which choices of accommodation or assimilation will have to be made. After presenting in more detail some of the problems and dilemmas involved in developing a more multicultural family law, the paper explores where international and European human rights law as it stands so far takes us in answering the question how far we should go in accommodating and/or incorporating Islamic norms and values. To conclude it will relate the conclusions to be drawn from this legal investigation to the political/philosophical discussions on the limits of multicultural approaches to law and society.