Overlapping Local Law: Muslim Immigration and the European Legal System

-- By AerinMiller - 25 Feb 2010

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. Mathias Rohe, Muslim Minorities and the Law in Europe: Chances and Challenges 41, 81 (2007). In the second half of the 20th century, immigrants from Turkey, the Balkans, 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 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.

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

The integration of a culturally or religiously coalesced minority is not new to European nations, which have been home to Jews since the Roman Era and Roma (known informally as Gypsies) since the sixteenth century. European nations have struggled with the assimilation of both groups, resulting in large part from majority prejudice - the Jews, for example, were exposed to incidences of forced cultural seclusion, intermittent outbreaks of extreme violence and a staggering near-successful attempt at cultural annihilation. Jewish rights under European law has been an evolving mix of slapdash give and take, from the establishment, by certain states, of ghettos, to a broad grant of civil rights following the French Revolution, to instances of 19th and 20th century revocation of those rights, and finally action by the United Nations and then the European Union to ensure equality of citizenship.

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.

Ultimately, the European legal system’s management and recognition of the Muslim minority’s panoply of rights is an issue separate from its provisions for Shariah. European nations’ focus should foremost be trained on the first issue – securing equality of citizenship, education and treatment, engaging human rights and correcting cultural misunderstanding. But as European Muslims, in increasing numbers, push for allowances for Shariah within local legal systems, European nations will eventually have to decide whether small allowances, such as separate family courts, are viable within their systems, or whether a policy of firmly rejecting Shariah should be maintained.