This chapter introduces the thought of Bhikhu Parekh and Tariq Modood. It outlines the abstract and applied components of their multicultural theory and how this conceptualises group phenomena including religion. It notes how English law, despite the dominance of liberal individualism, has adopted many aspects of multiculturalism, highlights its deficiencies as regards the regulation of religion, and traces its declining influence from 2005. It argues that multiculturalism is a suboptimal model on which to base the law of religion because it relies on too crude an understanding of groups and collective phenomena.

Most readers acquainted with Hobbes will think that a chapter on Hobbes and the puzzle of very unjust law must be rather short. After all, Hobbes is infamous for arguing that the law the sovereign makes not only can have any content but also that the content it happens to have is by definition just. He thus seems to have offered a radical version of a one-system theory about the relationship between law and morality in which morality is collapsed into the content of the positive law of a particular jurisdiction. Moreover, in a well-known passage, he explicitly denied the existence of such a thing as fundamental law, thus excluding a role for fundamental principles of legality in his legal theory.1 In short, he seemed to rule out the kind of puzzle of very unjust law which we saw in Chapter 1 flummoxed both Hart and Dworkin.

This chapter introduces the thought of Otto von Gierke. It outlines the philosophical tenets of classical pluralism and its rich vocabulary of group entities. It traces the rise of pluralism in nineteenth-century Germany, through its short golden age in early twentieth-century England, to its eclipse and afterlife following World War I. It argues that classical pluralism offers the most comprehensive and convincing theoretical model on which to regulate the relationship among individual, state and civil society in general, and between English law and British Islam in particular.

Central to philosophy of law, I have argued, is the legal subject’s question ‘But, how can that be law for me?’ Chapter 4 explored that argument in an investigation of the interaction between the space of the modern legal state and law ‘beyond the state’. Here I investigate the difference made to the answer to the question when it is given in two different contexts: first, a context in which a legal space – one both constructed by law and ruled by law – interacts with another legal space; and, second, in a context in which a legal space interacts with a space of no-law. As we will see, the definition of a legal space as both constructed by law and ruled by law is important because law can be used to construct a space of no-law, a legal void or ‘black hole’, as Lord Steyn described the situation of detainees at the US base of Guantanamo.1 In such a space, prerogative or legally unmediated power rules.

This chapter analyses the nature, functioning and regulation of Muslim clans. It begins wih a history of the regulation of endogamy in England, as clans are held together through consanguineous marriage and the prohibited degrees of relationship are the most relevant branch of law. Then it analyses the clan as a group unit with negative implications for public health and the nation’s social and political fabric. The point is to demonstrate that clannish behaviours, which present most prominently among British Muslim populations, are the product of a set of institutional norms rather than manifestations of any supposedly inherent ethnic, cultural or religious characteristics. The chapter’s theoretical discussion observes that liberal individualistic approaches tend to focus on rights and demographic statistics while ignoring the clan phenomenon itself, while multiculturalism tends to insist on the integrity of minority cultural forms, over-emphasising the positives and evading difficult questions about the place of clans in the UK. The pluralist response focuses squarely on clans as group entities and constructs the legal argument for their dissolution through marriage law reform.

This chapter addresses the growth of Islamic banks and finance in the UK. It begins with a brief historical overview of the informal institutions that were forerunners to Islamic banks and their development into a thriving global industry in which the UK is a leading player. It proceeds to survey the distinguishing features of Islamic banking and typical financial products before charting the innovative regulatory reforms that permitted the industry to expand. A section on the small volume of English case law highlights the standard but manageable issues arising from its continuing organic growth. The subsequent section models the two conventional theoretical approaches to the rise of Islamic banks and the regulatory means used to achieve it, as well as the problems with these interpretations. The final section sets out a pluralist response offering the best explanation and justification for these developments. It concludes with an appraisal of the problem of informal financial instruments and an optimistic assessment of the industry and the new formal institutions created, falling as they do within the general regulatory framework of the UK’s financial system.

In Chapter 3, I discussed the complicated relationship between constitution as act and constitution as achievement, as well as the idea that the constitution is greater than the sum of its parts. This chapter focuses on the remaining issue which complicates our understanding of constitutionality – its Janus-faced nature. The act of constitution, that is, looks both inwards and outwards.

The conclusion summarises the theoretical contribution of Otto von Gierke’s classical pluralism and restates the recommendations made throughout the practical chapters. It emphasises the importance of groups for legal thought, the value of a sophisticated vocabulary of group entities, and the need to guard against institutional entropy. It finishes with an optimistic outlook on the future relationship between British Islam and English law.

In this chapter, I bring together the themes explored in the preceding chapters. In particular, I elaborate the main implication of Dworkin’s remark in the manuscript version of Justice for Hedgehogs that it would be counterintuitive to think that ‘most of the subjects of most of the political communities over history had no moral duty to obey the laws of their community’.1 As I suggested at the end of Chapter 1, the implication is that the moral record of the law of a society, the fund of values in fact established over time, amounts to what Hobbes told us is ‘the publique Conscience, by which … [the subject] hath already undertaken to be guided’.2