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 41 (2007)

I. Introduction

There is a demographic revolution taking place in Europe right now. Muslims have been a minority presence on the continent since the eighth century, but their numbers are growing. Rohe at 81. In the second half of the 20th century, immigrants from Turkey, the Balkins, Africa and the Middle East were invited to fill gaps in the European work forces, often for a limited amount of time. Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe 2 (1994). These invitations, made via treaty or via statue, offered the workers longer periods of economic stability than they might receive at home, and they were extremely popular. Ibid at 19. They were so popular, in fact, that when they ended in the 1970s and 1980s, some of the workers stayed. Some brought their families, had children. Some of those children married European citizens.

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

In post-war Europe, a desperate need for reconstruction manpower was met via unskilled laborers from a range of Islamic nations. These work programs burgeoned, and fast. The guest worker (‘gastarbeiter’) plan was first drawn up in Germany, as a means of attracting inexpensive, unskilled labor for brief and moderated stays. The plan was evidently intended to have no downside. Laborers could make a few years worth of quick money in a mushrooming post-industrial economy and then return home to start their lives. The Germans could have unimpeded labor without the requisite social programming, schooling or integration. And the plan did work, sort of. Germany, and then Belgium and France and the Netherlands, and then Greece and Portugal got their legions of migrant laborers. Soysal at 20. But the laborers, many of whom recognized rightly the opportunities that lay in store for them in Europe, opted to stay. Soysal at 22. Some even brought their families over. And today there are perhaps 15 million Muslims in Europe, many of whom are second or third generation. Rohe at 15.

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 opportunity for Muslims living by Koranic mores to 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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