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.

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.

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.

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.

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.

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.

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.

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.

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.

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.