The European legal system has been forced to effectively integrate this population, which presents its own set of unique challenges. Muslims are distinguished from other non-Christian minorities such as the Jews or the Roma because of their relative newness, and because of their ties to a religion-based legal system, Shariah. There is no question that Europe can effectively govern Muslim populations; however, as some Muslims exhibit an interest extending beyond fair representation towards allowances for Shariah custom, the question is if and how European law can adjust accordingly.

II. Minorities in Europe: The Jews and the Roma

Similarly, the Roma are a culturally homogeneous group that arrived in Europe in the Middle Ages and found itself absolutely politically isolated. An article in Foreign Affairs magazine cites a Romanian tendency (in the 1990s no less) to not prosecute crimes committed again Roma, labeling them “the most hated, misunderstood and mistreated of people.” Today the European Union’s push for human rights includes Roma protection, and the Roma themselves have created advocacy groups. Thus their acculturation, like that of the Jews, was a process that took generations and was, first and foremost, a fight for fair recognition within the established legal system.

III. The Muslim Minority: Two Major Differences

European attempts to acculturate Muslims, in contrast, is unique both because of the group’s rapid and recent influx, and because of the group’s espousal of a non-Western legal system. Today there are perhaps 15 million Muslims in Europe, many of whom are only second or third generation. Rohe at 15. This demographic shift has resulted in immediate and violently mixed sentiments. Suspicion of, or frustration with, the other yielded brutality (elements of which are similar to treatment of both the Jews and the Roma), most notably during the French riots of 2005 and 2007. Violence has also been exacted against Turks in Germany. The American War on Terror and global awareness of fundamental Islamists has done little to assuage tensions, made worse by irresponsible editorializing. Political behavior is equally contentious, as the far-right makes strides from France and Switzerland to the UK. Even mainstream parties, in fact, have begun to incorporate xenophobia into their rhetoric.

In this culture of violence and fear, European Muslim populations are not merely staking a claim for equal protection and religious rights. Instead, popular movements have surfaced demanding some European recognition of Islamic law. Shariah, which has been historically revered for its logic and humaneness, and includes procedural safeguards such as extremely high standards of proof, is gaining popularity with Muslims worldwide as a more effective means of social arbitration. This increase in popularity includes (if not first and foremost) those who are culturally isolated.

IV. Shariah’s Role in the European Legal System

The question, then, is whether European law, in its efforts to fairly represent Muslim populations, can or should make allowances for Shariah in a civil context, in which it would be more easily accommodated. In Muslim Minorities and the Law in Europe, Mathias Rohe offers one take on the subject, identifying three means by which European legislators could effectively integrate Shariah (or acculturate the systems): the use of private international law (a relinquishment of sovereignty in some civil contexts), specific group statutory provisions (again, in the civil context) or the acceptance of an ‘optional’ civil law. Rohe at 42-44. All three offer limited opportunity for Muslims living by Koranic mores to achieve culturally accepted (or at least culture specific) redress.

Another more concrete option is the creation of specific civil or family courts for those narrow instances in which local or family issues are better decided by Shariah. Muslims, the logic goes, who have come into conflict practicing a set of standardized interactions, are better off in front of an authority familiar with those interactions. In 2003, for example, a Texas court tried its hand at cross-cultural legal integration by referring a divorce case to the Texas Islamic Court. An alternate option for religious Muslim families might make the pursuit of a just outcome easier, with little strain on the existing system.

This is a deceptive way of putting it, which begins building up to a false conclusion by making it sound as though European legal systems can't be used perfectly well to govern Muslim populations successfully, whether as Muslim minorities (as in Tito's Yugoslavia) or as Muslim majorities, as in Turkey. And as though long-term stability could not be achieved ruling Christian majorities and large Muslim minorities under Roman-influenced or common law, despite the history of medieval Sicily, modern Nigeria, and other places. The experience of contemporary India, using English common law to govern an empire of a billion people, including as a merely substantial minority the world's second-largest Muslim population, might be relevant. In brief, your sources are bamboozling you, and you're not asking hard questions.

Now, as then, as Muslim non-nationals become nationals (or second or third generation nationals), European states must address religious and societal differences head-on. The degree of differences varies by nation, but confusion, frustration and unease are universal. One example of this cultural tension exists in European attempts (or non-attempts) to reconcile Western and Islamic legal systems. Where, if anywhere, a different set of legal rules fits, is a question European states will have to face as populations continue to differentiate.

Not at all. For the reasons given above, there isn't any determinism about it. Nor is population movement a unique circumstance. You might consider the difference between the barbarian invasions of the Roman Empire, which resulted in the Western Empire's dissolution and the adoption of a system of "personal law," the Muslim Empire's use of communal non-Islamic courts for dhimmi populations, and the position of the Quakers, who maintained segregation from the English or American legal systems by voluntary withdrawal. Other positions along the spectrum of possibility could be offered.

You've described a few decades of occasionally tense conduct by the European Christian majority towards non-Christian minorities. But the Jews have lived in European communities for two thousand years and the Roma for more than 500, providing a wealth of relevant experience you do not draw upon. If Muslims are somehow different, you need to show why. If they are not different, discussions of "Sharia in Europe" need to be expanded to a more sensible context, which will yield rather different interpretations.

Aside from stating, correctly, that Islamic law is a complex system built over nearly two millennia and continuing to evolve in a fashion that couldn't correctly be stereotyped as steeped in medievalism any more than American real estate law, what have you said here? Its role in your argument is obscure to me. Is there something here that's supposed to establish that Muslims must live directly or indirectly under Sharia in the public sphere in order to follow the way of Islam in their lives? Or that there is the slightest relationship between anti-Semitic or anti-Islamic crap in the public press and the real relations between secular public legal institutions and religious law in the lives of observant Jews or Muslims? Something must be happening here to make the assumptions of the following section plausible, but I don't see what it is, so the next section's argument seems to me fundamentally unestablished.

This is a specious but meretricious argument, built by supposing that the alternatives to his palate of possibilities are absurd impossibilities, which I suppose we might call "Christian Europe" and "the European Caliphate." His minimization of the importance of his own topic is correct, and the promotion of his particular brand of bushwah is unbelievable. As I've pointed out, the actual palate of possibility includes existing Turkey and quite-real India, and hence what he has to say is mere bloviation. You cannot seriously pretend to believe that it is impossible for Muslims to live sufficiently Islamic lives in a secular legal system: millions of our Muslim fellow-citizens are doing just fine in our neighborhoods.

In fact, this fellow's views don't contain the relevant insights, which were expressed long ago by Bernard Lewis, long before he went crazy, in his finely-perceptive lectures on Islam and the West. As Lewis pointed out, the real roots of the situation lie elsewhere: in Islam's absence of sacred doctrine for how Muslims ought to live as long-term in-dwellers of the Dar al-Harb, under non-Muslim rule, and in the democratic emancipation of the Western societies, which forbids traditional modes of discrimination and which is understood to require both secularism and religious toleration.

Maybe, maybe not. The concluding sentence appears tautological, inasmuch as anyone wanting to make any legal change must work with the court and legislature unless he already possesses the monopoly of the public force. And most social processes on the macro scale can only be a subtle matter of give and take, except in time of war. Whatever the less tautological conclusion meant, it rests on such flawed premises that it's hard to have much confidence. One wonders—but not hard enough to fetch and read a treatise whose silliness you have very convincingly demonstrated—whether Rohe is actually worrying more about the supposed inflexibility of formal legal systems (always an occupational hazard of German legal writing) than about any practical difficulty in providing for consensual resort to extrajudicial fora for the resolution of most civil disputes by e.g. Jewish- or Islamic-law tribunals, which much evidence from around the world and in our backyard suggests is insubstantial.

I think a clear decision is warranted about what the real subject is. If this is a review of Rohe, I think it's possible you have the merits wrong. If this is about Islam in Europe, or about comparative legal history, I think the source set needs expanding so that Rohe's conceptual framework has some competition for your analytical consideration.

Overlapping Local Law: Muslim Immigration and the European Legal System

-- By AerinMiller - 25 Feb 2010

“The idea of a European Shari’a may let hardened orientalists start shivering in cold”

- Mathias Rohe. Muslim Minorities and the Law in Europe: Chances and Challenges. Global Media Productions: New Dehli, India, 2007. 41.

I. Introduction

And so began a new era in European states, which were forced to facilitate the integration of a sphere of Muslims occupying varying degrees of citizenship. Now, as then, as Muslim non-nationals become nationals (or second or third generation nationals), European states must address religious and societal differences head-on. The degree of differences varies by nation, but confusion, frustration and unease are universal. One example of this cultural tension exists in European attempts (or non-attempts) to reconcile Western and Islamic legal systems. Where, if anywhere, a different set of legal rules fits, is a question European states will have to face as populations continue to differentiate.

II. Muslims in Europe

The result of this rapid demographic shift is mixed sentiments, to say the least. Suspicion of, or frustration with, the other has resulted in violence, most notably during the French riots of 2005 and 2007. Violence has also been exacted against Turks in Germany. The American War on Terror and global awareness of fundamental Islamists has done little to assuage tensions, made worse by irresponsible editorializing – “Jihadist networks span Europe from Poland to Portugal,” says an article in Foreign Affairs Magazine entitled “Europe’s Angry Muslims,” “thanks to the spread of radical Islam among the descendants of guest workers once recruited to shore up Europe's postwar economic miracle…[T]he Muslims of western Europe are likely to be distinct, cohesive, and bitter”

Political behavior is equally contentious, as the far-right makes strides from France and Switzerland to the UK. Even mainstream parties, in fact, have begun to incorporate xenophobia into their rhetoric, as a Reuters blogged article makes abundantly clear:

…the real success of the far-right has been to affect the national agenda itself, and make elements of their own political program more palatable to voters in mainstream political parties all across Europe…We see it in France, where mainstream politicians now openly say things in regards to immigration and Muslim minority groups that years ago only far-right politicians would ever utter.

III. Islamic Law

Debate over Shariah’s place in European legal systems is thus playing out against a chaotic backdrop. The chaos stems, also, from misunderstanding and hyperbole about Shariah itself – “[to] many,” the New York Times stated in a 2008 article, “the word “Shariah” conjures horrors of hands cut off, adulterers stoned and women oppressed.” The article goes on to stress, however, that Shariah has been historically revered for its logic and humaneness, and includes procedural safeguards such as extremely high standards of proof. Islamic law also regulates issues of Muslim life that could not find redress in a Western court, including societal behavior corresponding to the mandates of the Koran. As a regulator of social functioning, then, it is no surprise that Shariah is gaining popularity with Muslims worldwide, including (if not first and foremost) among those who are culturally isolated.

IV. Islamic Law in Europe

The question, then, is what role Shariah can possibly play in European courts. In Muslim Minorities and the Law in Europe, Mathias Rohe explains that, in contradiction to sensationalist fears, Shariah will never overwhelm or operate separately from national legal institutions. Rohe at 42-43. Instead, Shariah can only work in an assimilation or acculturation context, either fitted within the European framework or partially fused to it. Ibid. Either of these are distinctly civil options, the rational being that criminal laws are general and immutable. Rohe at 43. Rohe identifies three means by which European legislators could effectively integrate Shariah (or acculturate the systems): the use of private international law (a relinquishment of sovereignty in some civil contexts), specific group statutory provisions (again, in the civil context) or the acceptance of an ‘optional’ civil law. Rohe at 42-44. All three offer limited means by which Muslims living by Koranic mores can achieve culturally accepted (or at least culture specific) redress.

But none of these proposed options are easily installed. In 2008, when Archbishop of Canterbury Rowan Williams suggested Shariah courts should be allowed to decide civil family matters in the UK, “all hell broke loose.” Rohe admits that the “application of foreign legal principals…is an exceptional case” currently in the West, where legal norms are so firmly entranced. Rohe at 89. Ultimately, then, European majority reactions indicate the introduction of Shariah can only ever be a subtle matter of give and take. Only by working with the court and legislature toward quiet (and small) civil law concessions can proponents carve Shariah a role within the European systems.

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