Overlapping Local Law: Muslim Immigration and the European Legal 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.