ABSTRACT
Dutch judges (and occasionally public administrators and school directors) are regularly confronted with hitherto unknown or at least not officially recognized or accommodated ‘distinct’ legal concepts, practices and sensibilities, or with distinct patterns of family life prevailing in distinct communities living in the Netherlands. These distinct communities comprise a variety of groups of people who belong to a school of Islam, but also communities adhering to Indonesian Adat, to the Surinamese Hindu religion, to Ghanaian local customs and others.1 As to the term ‘distinct’ (and ‘distinct community’), some explanation is in order. Almost every society nowadays is host to many socio-culturally different encompassing societies such as ‘first nations’ (indigenous peoples), national minorities, immigrant communities, etc. European societies like the Netherlands are no exception to this. Clearly, these communities cannot be simply grouped under one heading, but in this contribution I use just one term for them all: distinct communities. Admittedly, there are differences between immigrant communities on the one hand and ‘first nations’ on the other, the latter term referring to the original peoples of some conquered territory, confined to some marginal part of that territory by a dominant group of different socio-cultural and often ethnic make-up. But in terms of the challenge for vested national law and legal scholarship, one can group these cases together. This challenge consists in a mounting pressure by members of minorities to have their distinct culture and legal sensibilities recognized not just as a kind of private property (‘behind the front door of their home’) but as part of the official set-up of state and national law. While not all members of such communities share this view – some are pleading for rapid assimilation – generally speaking, there is a mounting pressure for some form of recognition of this right to be legally different (in some sensitive legal domains).
