Sleepwalking to a multicultural law?
Prakash Shah
One law for all?
Speaking of multiculturalism today, for better or for worse, puts one in the company
of some prominent political, public and academic figures in contemporary Britain and
across the Western world. Some commentators have criticised the multicultural ethic
as having led to separationism among the various ethnic components of society and
thereby argued that it is no longer appropriate as a principle for the governance of
plural societies. The unease about multiculturalism among this group, some of which
have included members of the West’s ethnic minority populations, has led others to
diagnose a crisis in or an end to multiculturalism as a political ethic for the
governance of an ethnically plural society.
While individual responses obviously vary somewhat a common thread that
runs through a core group of commentators is their advocacy of the need for the
principles holding plural societies together to draw upon what is common among
people rather than what makes them different. In Britain this has led to assertions that
it is in ‘Britishness’ that we can locate the core values, beliefs or principles which
bind society together. A number of political leaders have championed this view,
among which have included the Prime Minister Tony Blair (2006), the Conservative
Opposition leader David Cameron (2005), and the Prime Minister in waiting Gordon
Brown (2006). Another notable figure is Trevor Phillips, currently chair of the
Commission for Racial Equality. Phillips (2005) famously stated that ‘we are
sleepwalking our way to segregation’, the principal cause of which he locates in the
type of multiculturalism hitherto practiced in Britain, while his remedy is also to look
to Britishness as the foundation of the core values of civility linking all of the
country’s inhabitants.
Positing Britishness as the primary linking factor is, however, fraught with
difficulty, and the precise menu of items constituting Britishness varies from one
commentator to the next, although the Brits generally feature as the ‘good guys’ in
whatever (hi)story one is expected to accept. However, it is remarkable how
discussions about Britishness tend to strongly centre on the question of law.
Britishness is said by Phillips to include adherence to the rule of law, principles of
democracy and looking to Parliament as the accepted authority for law making. In
December 2006 Tony Blair (2006) also took up the legal theme during his lecture at
the Runnymede Trust, saying:
… we must demand allegiance to the rule of law. Nobody can legitimately ask
to stand outside the law of the nation. There is thus no question of the UK
allowing the introduction of religious law in the UK. Parliament sets the law,
interpreted by the courts. All criminal matters should be dealt with through the
criminal justice system. There may be areas where, in civil proceedings,
parties consent to arbitration by a religious body. But these are arrangements
based on consent and, in all cases, parties will have recourse to the UK courts.
Effectively Tony Blair was saying that there was no prospect of the principles or rules
of the sharia being recognised in Britain. Some months earlier, Trevor Phillips (2006)
had used even stronger language in response to a question about the reportedly high
number of Muslims who wish to live by the sharia:
We have one set of laws; they are decided by one group of people, members of
parliament that is the end of the story. And anybody who lives here has to
accept that that's they way we do it, if you want to do it somewhere in another
way you have to live somewhere else.
Just as I was preparing this talk my attention was drawn to a speech given on 14
February 2007 by Lord Falconer, The Lord Chancellor and Secretary of State for
Constitutional Affairs.1 He said in pretty much the same vein:
One law for all. This is the principle that underpins our justice system. Which
is why we will not consider permitting Sharia law or any other religious law to
determine what constitutes criminal behaviour. Parliament sets the law,
interpreted by the courts. Allegiance to the Rule of Law is the keystone of our
society. It is non-negotiable. Protection under the same law is something that
every one of us shares, regardless of region or religion, background or beliefs.
We are all subject to the same rules - something that has been a defining
characteristic of our society and fundamental to our values.
There is thus an ongoing debate about the extent to which living in an ethnically and
religiously plural society can entail the possibility of people ordering their lives by
parallel rules of law. It is entirely welcome that such discussions are now being aired
publicly, even though one gets the feeling that the tone often adopted is less that of an
ongoing conversation among concerned parties and more of a unilateralist, take-it-orleave-it - or ‘take it or leave the country’ - one. This situation is made worse by the
virtual disenfranchisement from the mainstream media of people who can speak
lucidly about alternative conceptions of law, a grave asymmetry which in the end
penalises the weakest members of society.
While not saying so explicitly, in the quoted part of his speech, Tony Blair
was actually alluding to the coverage in the prior few days on the radio and press of
the existence of dispute resolution fora among different minority ethnic communities.
This latest round in the debate was sparked off when BBC Radio 4 was about to
broadcast its Law in Action programme on 28 November 2006 in which participants
from different communities including Somali, Jewish, and Muslim provided
information about how certain types of disputes were being handled under communal
structures of one sort or another. I also took part in the programme, as did Cassandra
Balchin of the NGO Women Living Under Muslim Laws.
Among the information given was how some Somalis were organising to solve
intra-communal disputes among themselves, sometimes touching on matters that
would also concern the official criminal law. Some disputes are ‘delegated’ to a
Somali forum by agreement between the families of the perpetrator and victim
respectively, and with the approval of the police. Jonathan Greenwood, a solicitor
who often represents Jewish litigants, spoke about the long standing practice among
some Jews to have their intra-communal disputes resolved before the Beth Din. Faizul
Aqtab Siddiqi, a commercial barrister and a member of the Mahkamah Council of
1
I am grateful to Innes Bowen of the BBC for drawing my attention to this speech.
Jurists, spoke of how Muslims in Birmingham were organising along similar lines in
civil disputes.
Meanwhile, the BBC grapevine meant that within days of recording the
programme I was being asked by other radio stations to take part in their programmes
on the same issue. Within two days of the Law in Action programme being broadcast,
the Daily Express (30 November 2006) announced on its front page, ‘Muslim law is
here in Britain’. The newspaper article stated that, ‘the Government had already
allowed elements of sharia law to be introduced. The Treasury has brought in
measures including interest-free loans and mortgages which comply with the Islamic
law.’ It also linked Muslim dispute resolution fora (‘courts’ according to the language
used in the Daily Express article) to stoning and amputation which occurs in some
Muslim majority countries. Nothing was said about the Jewish bodies which have
been established for much longer.
On reflection it can be explained why Tony Blair had to react to such
scaremongering and why he had to state clearly that there was no prospect of religious
law being introduced in Britain. He made an important qualification, however, stating
that civil arbitration by religious bodies, based on the consent of the parties, and
subject to the official courts’ jurisdiction, was a different matter. Indeed, one
interviewee in the Law in Action programme stated that arbitrations by the Beth Din
were already enforceable by the English courts, and the courts had indeed been
enforcing them for many years.
The Beth Din’s arbitration agreements stipulate that any award is made
according to Jewish law and such other law as is acceptable to Jewish law. A search
of the legal databases soon reveals the number of cases that come up either for
enforcement of the Beth Din’s arbitral awards before the courts or as a challenge to
such awards. The cases range from family disputes to commercial ones. For example,
the case Kohn v Wagschal and others ([2006] EWHC 3356 (Comm), [2006] All ER
(D) 350 (Dec)), heard late last year by the Queen’s Bench Division’s Commercial
Court, involved a challenge by three sisters who contested the award of the Beth Din
to their brother of shareholdings, which the father had, during his lifetime, transferred
into the names of the sisters as a way of avoiding tax. The Beth Din had found that his
real intention had not been to make a gift of the shares to his daughters. Thus deprived
of their anticipated windfall, the sisters were not willing to accept the award. Their
brother obtained an order from the High Court under the Arbitration Act 1996 and the
sisters challenged the order. In the event the sisters lost the case, the Queen’s Bench
Division finding no illegality in the manner in which the award was made. We thus
find a system of communal arbitrations in interaction with the official court system, a
collaboration which appears to have functioned for a long period of time in Britain,
and which hardly causes much murmur beyond the group of community insiders.
Some Muslim groups are now actively studying this model to see whether they
can also use the same framework for arbitration among Muslims. A similar prospect
of Muslim arbitrations enforceable by the official courts recently resulted in an acrid
debate in Canada, leading the authorities to suspend the recognition of religiouslybased dispute resolution under the arbitration legislation in Ontario (Bakht 2006),
which also adversely affected the position of the previously active Catholic and
Jewish arbitration bodies. This is not only a British or Canadian phenomenon and is
also taking shape in India, a country with a huge Muslim minority population. There
the ulema are openly asking for recognition of their own legitimacy as courts even
though the official Indian courts regularly rule on matters of sharia. It seems however
that Muslim arbitration in the UK would be covered by the Arbitration Act 1996 as
are the Beth Din awards at present. What is perhaps more interesting is whether the
official courts would eventually have to rule on matters of Muslim law in their efforts
to tease apart the issues raised by arbitral agreements based on Muslim law principles.
Legal pluralism is the social reality
From a certain perspective the whole public debate on multiculturalism and law has
the aura of unreality about it, but it is not surprising if we consider the dominating
presuppositions which operate strongly when we discuss the idea of ‘law’ itself. This
perspective often blocks our view to legal developments occurring throughout the
world, as much as they do in Britain. Law is generally considered to emanate from
political authority according to Western legal theory or ‘model jurisprudence’ as
Japanese writer Masaji Chiba (1986) has it. Many of us, lawyers and non-lawyers
alike, have absorbed this powerful ideology or, shall we say, ‘ideology of the
powerful’, and have rarely questioned its foundations. Open any legal textbook today
and we will hardly find a mention of laws operating outside the realm of the state
authorities.
This state-centric and basically nationalist vision of law, described by some
comparative legal scholars and theorists as being a ‘myth’ (Griffiths 1986: 4) or a
‘political claim’ (Santos 2002: 89-90), makes us focus almost exclusively upon the
activities of bodies like Parliament or the official courts and tribunals. We are rarely
able to consider the possibility that other actors - individuals or different components
of society - have legal agency. Thus, the Western ideology of ‘legal centralism’, as
Griffiths (1986) terms it, has actually developed in such a way as to reinforce the
position of a minor political elite, hardly representative of the wider social sphere, but
speaking and ruling on the latter’s behalf, while simultaneously denying its freedom
to operate by autonomous value systems. That this does not necessarily lead to
outright conflict is rather surprising, but we can often take comfort from the fact that
in liberalism a large space for manoeuvre is still left to the autonomous individual
maximising his, and latterly her, own happiness, whatever that may be. But conflict
very soon surfaces in all sorts of spheres and is amplified considerably in an
ethnically plural setting especially if those comprising that ethnic plurality organise
their lives, and make sense of such organisation, upon bases which are at considerable
variance to those which the majority ethnic components have largely unquestioningly
used to govern their own lives. The more this variance, the greater the possibility of
conflict.
Let us consider the contemporary scenario to help us focus on this. Today’s
Britain is vastly different to how it was some 50 years ago, which in turn was quite
different to a hundred or more years ago, and so on. This does not mean that it has not
always been ethnically plural – it has most definitely been so. However, the current
condition of ethnic plurality is markedly different in the sense that we now have
considerable numbers of people living in Britain, whether full citizens or not, who
have either directly migrated from outside Europe or are descended from one or more
parents who have. Those of European descent themselves have a range of histories.
Some are returnee colonial settlers; others are intra-European migrants and their
descendants, the Irish and Jews being their long-standing representatives, while the
migrants from new Member States of the EU are the latest of these groups. Each has
had its own troubles in settling down to some sort of liveable compromise within
Britain. However the task of doing so successfully for those who trace their roots to
some African, Asian and increasingly Latin American contexts is made that much
more complicated because they hold on to value systems and legal cultures based on
sharply differing premises.
From a legal pluralist perspective, which like Chiba and Griffiths I also share,
the project of cultural reconstruction in Britain, in Europe or in any other Western
country which migrants and their descendants have undertaken, the facts of which are
now undeniable, has also been accompanied by legal reconstruction, a haphazard
process of transplantation of ‘foreign’ laws. Social-psychologist, Günther Bierbrauer
(1998: 196), drawing on his fieldwork with diasporic minorities in Germany, explains
why it is not tenable to expect their outright assimilation to the dominant legal order:
… one could argue that immigrants should try to cope with the new legal
system of the dominant society by learning its rules in the same way as they
learn the language and customs practised in their new environment. Why is
this not tenable?
… law and legal systems are cultural products like language, music or
marriage arrangements and as such they form a structure of meaning that
guides and organises individuals and groups in situations of conflict. Thus,
legal culture refers to the layman’s conception and knowledge of legal rights
and duties and the way in which people solve their disputes in a particular
culture … cultural norms, values and practices are internalized during
socialisation and they become part of a person’s identity. Legal culture is only
one aspect of a person’s ethnic or cultural identity.
I think Bierbrauer’s insights on the unrealism of legal assimilation of immigrants in
Germany apply equally to any country in Europe which has experienced substantial
immigration. From a positivist, state-centred perspective we would of course deny the
fact that disaporic groups can and do operate within a framework today composed not
only of British and European laws but also laws derived from their own multiple
cultural heritage. In the social and legal reality on the ground, however, it is evident
that such laws have for some time now come to be part of Britain’s legal landscape.
This legal diversity and plurality requires a shift from the legal centralist mode
of analysis and demands that we take on board the subjective aspect of legal
experience. When faced with multiple and sometimes conflicting legal rules,
individuals will have to make difficult decisions about balancing different legal
values. Chiba (1998: 239) argues for just such a subjective perspective, observing:
First, a person under legal pluralism may stand in the position of legal
ambivalence between conflicting legal rules. Thus he/she is aware of being
legally entitled to choose one of them and reject the others. Further, he/she is
encouraged to make that choice on the ground that it is culturally justified.
Finally he/she may be proud of the choice as a cultural privilege for its
traditional value… In sum, being accompanied by cognition of cultural pride,
the recipient’s choice may produce a considerable effect upon the working of
legal pluralism, whether positive or negative and manifestly or latently.
Inherent within this process is a dynamic of legal comparison which the individual
herself or himself is faced with. Comparative law itself thereby turns out to be the
domain of the individual living under conditions of legal pluralism, rather than
belonging to some arcane branch of academic inquiry. Such conditions require that
individuals themselves become legal navigators, screening for themselves the
different messages sent to them from within and from without and deciding what to
do each time, and often choosing rules based on the extent to which they support their
own cultural integrity. This may often turn out to be the ‘wrong choice’ since the state
may not necessarily support it, especially where it is not sufficiently responsive to this
subjective aspect of legal pluralism. Or it may be the ‘wrong choice’ because one’s
own community, or an adjacent community, does not respect that choice on the
grounds that it goes against its own values. Thus legal pluralism in this sense of being
an aspect of social reality is not necessarily a happy state of affairs where everyone’s
demands are met at all times. More realistically it is a series of uneasy compromises
made by all individuals, but again bearing in mind that the greater the cultural
distance between different laws the greater the possibility of conflict or personal
crisis.
Prof. Werner Menski (1993) wrote more than a decade ago about the presence
in Britain of Asian laws, essentially as hybrid laws having developed out of a
complex process of the interaction of British state laws and various ethnic minority
laws. In arriving at these new balances Asians have not comprehensively abandoned
their legal traditions but have rather engaged in adaptive processes leading to the
selective incorporation of, and compliance with, official laws. He illustrated this by
pointing to the persistence of Asian marriage practices, including the following of
both Asian rituals and English registration requirements, and also to the practice of
multiple divorces which complied with both the Asian and English laws. He also
discussed the continuation of dowry practices in Britain (now see Menski 1998). He
later extended his analysis to the new hybrid forms of Muslim law which he termed
angrezi shariat - British Muslim law - which involve a dynamic Muslim legal
pluralism and continuation of Muslim legal practices under the shadow of official law
(Pearl and Menski 1998, and also now Yilmaz 2005).
We are now finding out more about the presence of dispute resolution
processes, particularly among Muslims by the ad hoc setting up of sharia councils all
over Britain. One prominent case is that of the Muslim Law (Sharia) Council (UK) at
Ealing. Led by the late Dr. Zaki Badawi, it initially became involved in legal service
provision out of the concern that Muslim women were frequently being abandoned
without what they felt was an Islamically acceptable divorce, thus finding themselves
in limping marriages and unable to move on with their lives (Shah-Kazemi 2001). As
stated sharia councils are now extending their remit to include other activities. The
Ealing-based Sharia Council, for example, now also undertakes counselling at earlier
stages of conflict, as well as dispute resolution (Keshavjee, forthcoming). Together
with some other examples mentioned earlier these cases illustrate the fact that
Muslims, like Jews before them, have been building what HLA Hart, the post-war
champion of the positivist school of jurisprudence, would recognise as secondary rule
systems in Britain to organise their own legal affairs to some degree. Is this evidence
of ‘real’ law operating among ethnic minority communities?
Muslims and Jews are not the only ones to do so and we will find degrees of
legal self-organisation in many different minority communities in Britain. Muslims
are to some extent singled out and picked on because of the fear of a Muslim fifth
column in Britain today but also, it has to be said frankly, because some Muslim
spokespersons have hardly been adept at presenting a case for their own communities
in acceptable tones. The confrontational, all-or-nothing, and sometimes quite antipluralistic positions being adopted by some of these figures without appreciation of
the other side’s position hardly assists in easy communication or a smooth process of
interaction between the official and unofficial spheres. Having said that, English law
too is aware of the ground shifting beneath the veneer of a uniformist, state-driven
legal order. Something more complex is therefore going on which is incrementally
also being taken on board by some of the more perceptive academic commentators.
Cownie et al (2003: 24) recently noted in their textbook, English legal system in
context:
There is no single unique English legal system that structures British society.
The rules, the courts, the lawyers which owe their authority to the state are a
legal system in England and Wales. They are, as we will see, a very important
legal system that is hugely influential in most people’s lives. However, this is
not the only legal system. Other forms of dispute resolution also have an
impact on people’s lives. What previous authors have described as being ‘the
English legal system’ is merely one part of the English legal universe.
These writers indicate subtly that their antennae have picked up on the fact that the
English legal universe can no longer be described in a monistic fashion, and that
notice needs to be taken of something more plural in its very structure and
composition. Unfortunately, these overdue concessions to legal reality are not pursued
far enough by the writers, or indeed by many other writers, so that students might get
a deeper sense of, and also therefore the confidence to discuss, what the implications
of such plurality are.
Divorced from reality?
Are these indications of legal plurality only taken notice of in the domain of some
textbook writers and commentators? In fact things have moved further ahead that
anyone wishes to admit too publicly. Let us take an illustration presented by a tiny
Act of Parliament passed not so long ago. The Divorce (Religious Marriages) Act
2002, section 1(1) inserted a new section 10A into the Matrimonial Causes Act of
1973, which came into force on 24 February 2003. It reads as follows:
10A
Proceedings after decree nisi: religious marriage
(1) This section applies if a decree of divorce has been granted but not made
absolute and the parties to the marriage concerned –
(a) were married in accordance with –
(i)
the usages of the Jews, or
(ii)
any other prescribed religious usages; and
(b) must co-operate if the marriage is to be dissolved in accordance with those
usages.
(2) On the application of either party, the court may order that a decree of divorce
is not to be made absolute until a declaration made by both parties that they have
taken such steps as are required to dissolve the marriage in accordance with those
usages is produced to the court.
….
The discussions in the lead up to this Act primarily address the question of limping
marriages within the Jewish community and the measure was presented largely as one
of concern to orthodox Jews. Indeed, it does not appear to be the case that there was
widespread consultation with Muslims or any other groups. However, Andrew
Dismore MP who led the discussion on the measure in its stage as a Bill through
Standing Committee2 had this to say:
There have been no approaches from the Muslim community about the matter,
although there is a similar, but not identical, difficulty. The Bill provides a
mechanism to overcome such a problem should there be an approach from the
Muslim community.
Clearly enough, a court would have the power, upon application by a party to the
divorce, to withhold the final official divorce if a divorce according to religious
‘usages’ among Muslims is not given. It was recognised in the Standing Committee’s
discussion that while this measure would not solve the problem of limping marriages
among Jews, it would go some way towards addressing the difficult situation of wives
not divorced according to Jewish law. The same might be said of Muslims, while a
recalcitrant man may escape the notice of the court altogether, for instance, where a
wife simply signs the official divorce papers when she is told to do so. Where a
Muslim man does not pronounce a talaq will we see wives resorting to sharia
councils and submitting their divorce pronouncements before the official family
courts, and would these be acceptable under the mentioned ‘usages’? We need further
discussion and analysis of the implications of the aforementioned amendment to the
MCA and await with interest to see how it will work out in practice.
On the other hand, this Act does nothing for wives who while travelling in,
say, Pakistan are given a talaq. While frowned upon by the classical Muslim law,
especially if it is in its ‘quickie’ form, such a divorce is perfectly valid according to
sharia, and is also recognised officially in Pakistan’s legal system. Here we see
British laws creating another kind of limping marriage situation - where the wife is
divorced under the religious law, but where such a divorce is not recognised by the
official law here. In these kinds of cases we see another kind of legal snobbery in that
actions that are not somehow connected to a state authority are simply turned down.
Again little people, it is alleged, have no legal agency to control their affairs. But
wait. In one case that I was consulted on recently, it was the Home Office who
claimed that the wife effectively lied to them upon re-entry to Britain. Why had she
not informed the authorities that her husband had talaqed her on what was seemingly
a family holiday in Pakistan? So here we have official double speak – had the wife
been applying on the basis of a remarriage she would have been told that she had not
properly been divorced in a way recognised under English law, but here when she was
claiming indefinite leave to remain, she is told that she is guilty of not coming clean
and telling us that she is divorced.
In another related development brought about by the case of H v H (Queen's
Proctor intervening)(validity of Japanese divorce) ([2006] EWHC 2989 (Fam) [2007]
All ER (D) 71 (Jan)) we find that a Japanese consensual divorce, known as kyogi
rikon, is accepted in Britain as legally valid even though state involvement in this
procedure is minimalist and involves a simple notification to an administrative
authority in Japan. There appears to be no real court intervention here, and yet such
divorces, when pronounced abroad, are being recognised by English judges.
2
Standing Committee D, Wednesday 7 November 2001, at http://www.parliament.the-stationeryoffice.co.uk/pa/cm200102/cmstand/d/st011107/am/11107s02.htm
So how do we explain all these inconsistencies and different layers in the
official approach to ethnic minority divorce laws? The new section 10A of the MCA
is a response not only to the woes of Jewish women that they are in trapped marriages
which have effectively broken down, since the Act patently attempts to cover usages
other than those followed by Jews. I am tempted at this stage to put forward the
argument that this sneaky coverage of Muslims shows us some patterns of how a
multicultural law is developing in Britain. First, we are not allowed to discuss Muslim
issues too loudly especially if they may result in accusations that we are creating a
pattern of differential official legal coverage according to the needs of various
communities. Mention of Muslim law or sharia within legislation is clearly outside
the bounds of legitimate discussion, a sort of blasphemy against the secular legal
consensus or, more specifically, anti-Islamic public orthodoxy. So we must talk about
Muslims as if they are not really there - as those following ‘other prescribed religious
usages’. We are none the wiser therefore of how Islamic law on divorce works and
still further away from discussing openly how it should work in contemporary Britain.
At the same time Parliament and the courts are also showing us that they are aware of
the ground shifting underneath them if they don’t take action.
Conclusions
There are a number of arguments emerging from this discussion which actually go
both ways or even more than two ways in trying to answer the question posed by the
title.
1. Many proponents of Britishness have argued that we should stick to the
orthodox position and insist that the law is that law made by parliament and
the courts, and that the rule of law entails that one need only follow these laws
regardless one’s cultural background or upbringing. We are back to the unreal
position that only political law matters and what the ‘little people’ do in their
‘private’ arrangements may either be acceptable or unacceptable as cultural
practice, but is not really ‘law’. This of course rules out a whole swathe of
legal reality which little people act out in their daily lives - it may be relevant
for them but it is not worth studying, teaching about or taking into account as
‘real law’. It also means that our knowledge of legal reality remains extremely
skewed towards the political realm and increasingly gets divorced from the
social laws actually practiced or the ‘living law’ of the people, as Eugen
Ehrlich, an early proponent of the sociology of law, pointed out many years
ago.
2. The picture gets more complicated, however, if we consider that fact that
judges take into account all sorts of evidence of ethnic specificity with varying
results which messes up the rather neat impressions of more or less legal
uniformity which proponents of Parliament’s supremacy would have us
believe. Given that Parliament itself sometimes takes into account distinctions
on the basis of ethnic or religious group membership, assertions that we are
legally uniform are plainly contradicted by the facts, and those making such
assertions are basically misleading people.
3. In most cases the actually existing hybrid living laws are a combination of
different legal traditions and practices indicating a constant dynamism
between the official and the unofficial, among the state, the people and various
other elements. The state is actually in a constant game of catching up or, in its
stubbornness, refuses to catch up by denying legal reality. It is in this sense
that we are sleepwalking and at the same time multicultural. Our social reality
is one of ethnic and legal plurality while we only take this into account to
varying degrees. In so doing we create certain hierarchies of acceptance by
official law - in the cases we have seen, Jews and Japanese are clearly more
listened to and more favoured than Muslims, and we can talk about many
other such distinctions. Ultimately there are no winners in this, but a lot of
unhappy people!
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