Islamic Law: Europe’s Shari’a Debate

Recent events in Europe have pushed shari’a, or Islamic law, to the forefront of media attention and debate. From the murder of Theo van Gogh by Mohammed Bouyeri in 2004 to Archbishop of Canterbury Rowan Williams’ controversial endorsement of sharia in 2008, proceedings involving Islam have sparked both harsh criticism and solid support of the integration of Muslims in European society. Within extensive debates about Islam, however, the more narrow aspect of Islamic law attracts just as much controversy, as non-Muslims attempt to determine exactly what shari’a entails. Many Western citizens associate shari’a with the amputation of limbs and other harsh punishments espoused by some Muslim states’ penal codes. Others are more likely to question the compatibility of shari’a with Western standards of human rights, especially relating to gender equality. When determining what sharia means for Europe, however, it is necessary to analyze both the conflicts and convergences of Islamic and national law. This paper discusses tensions between shari’a and human rights, as well as the integration of Islamic financial and family law in Europe, with a focus on Great Britain. Ultimately, the politicization of sharia has created the discrepancies in these debates, causing controversy over previously accepted aspects of Islamic law while overshadowing Islamic traditions that have the potential to reconcile shari’a and Western norms.

Tension between Shari’a and European Law

The immediate tension between shari’a and European law is perhaps the most overlooked distinction between them—shari’a does not connote a concrete set of rules established to govern civil society, as Western governments might expect. Instead, shari’a proscribes a manner of personal conduct that prevents Muslims straying from Islam, hence the translation of shari’a as “the way to follow.” 1)Rene David and John Brierley. Major Legal Systems in the World Today. London: Stevens and Sons, 1985. 455. Therefore, shari’a is not positive law; authors Rene David and John Brierley insist that “the real sanction for these obligations is the state of sin into which the believer neglecting them will fall. For this reason, Muslim law often shows very little interest in civil sanctions attached to the violation of its prescribed rules.” 2)Rene David and John Brierley. 455. The fiqh, or the science of Muslim law, generally determines concrete laws that are interpreted from shari’a, and it is from the fiqh that many Westerners obtain their impressions of sharia. However, shari’a is interpreted and instituted in various ways in different countries, especially in the present time when most governments of Muslim states combine fiqh with national customs and the influence of modern common law systems. 3)Rene David and John Brierley. 473.

The existence of so many different “Muslim laws” introduces the first problem of instituting a system of shari’a in the Europe: How should nations decide which interpretation of sharia to implement? Even within Islamic family law, which is being contested at the present in the United Kingdom, countries differ in their application of fiqh: Ghana, for example, applies Islamic law from custom-based courts in which marriage and divorce must adhere to national custom but property succession devolves according to Islamic law. 4)“Ghana, Republic of.“ Legal Profiles. Emory Law School. Last updated 2002. Last Accessed December 2008. Available at http://www.law.emory.edu/ifl/legal/ghana.htm By contrast, in Pakistan marriage and divorce are administered according to the Hanafi school of Islam, whereas property succession proceeds according to Pakistani customary law. 5)“Pakistan, Islamic Republic of.” Legal Profiles. Emory Law School. Last updated 2002. Last Accessed December 2008. Available at http://www.law.emory.edu/ifl/legal/pakistan.htm Judge David Pearl describes the concerns with such different national systems: “There will be in any event immense difficulties in identifying the specific family laws of the Muslim community, varying as they do between schools and between origins. There may be common denominators but by definition such principles will not be acceptable to all. Old struggles over the definition of shari’a and its practical application would be revived in UK, to the detriment of harmonious relations within the communities themselves.” 6)Pearl, David. “Dispute Settlement Amongst the Muslim Community in the UK.” Recht van de Islam 20 (2003). 8. This tension between multiple interpretations of shari’a and the need to have one unified representation of Islamic law to implement in the EU is a logistical problem that nevertheless frames the following incompatibilities of shari’a with national legal system.

Western countries generally perceive shari’a as incompatible with human rights. In 1984, the Union of Muslim Organizations of the UK ended its decade of activism with a charter stating its demands for a separate system of Islamic family law. 7)Pearl, David. “Islamic Family Law and Its Reception by the Courts in England.” Islamic Legal Studies Program, Harvard Law School. Occasional Publications 1. May 2000. 4. Although this approach, in which minorities desire a separate set of principles applied to different religions, is now unpopular, 8)Eteraz, Ali. “Shari’a Subject.“ Open Democracy. Last Accessed December 2008. Available at http://www.opendemocracy.net/ourkingdom/2008/02/12/shari’a-subjects-vi-concurrent-jurisdiction-would-be-used-to-coerce-average-believers/. the British Members of Parliament surprisingly ignored the problems presented by a system discriminating on the basis of religion and instead focused their criticism on the incompatibility of shari’a and human rights. 9)Poulter, Sebastian M. “Cultural Pluralism and its Limits: A Legal Perspective.” CRE Britain: A Plural Society. Report of a Seminar, London: Commission for Racial Equality, 1990, pp. 3–28. Since then, this contentious issue has grown into one of the most debated aspects of the shari’a discourse. To contextualize the debate once again, however, shari’a itself does not either grant or forbid fundamental human rights, as it is more concerned with obligations and moral duties of individuals rather than human freedoms. 10)David, Rene and John Brierley. 455. Instead, Muslim immigrants of various nationalities bring their national interpretations of shari’a to the debate. In her book Islam and Human Rights, Anne Mayer explains: “Muslims have espoused a wide range of opinions on rights—from the assertion that international human rights are fully compatible with Islam to the claim that international human rights are products of alien, Western culture and represent values that are repugnant to Islam.” 11)Mayer, Anne Elizabeth. Islam and Human Rights. Colorado: Westview Press, 1999. 2. It is against these various national interpretations of Islamic law that Europeans must identify incompatibilities between shari’a and the rights of women and non-Muslims.

With 50 percent of Britain’s 1.6 million Muslims coming from Pakistan and Bangladesh, 12)“Country Profile: United Kingdom.” Euro-Islam. Last Accessed December 2008. Available at http://www.euro-islam.info/country-profiles/united-kingdom/. it is worth analyzing women’s rights in those nations to observe the influence of national culture on the debate over shari’a courts in Britain. The rape laws in Pakistan, for example, differ greatly from legislation punishing rape in Europe. In a paper presented at the Center for the Study of Islam and Democracy’s sixth annual conference, scholar Julie Norman proposes: “Pakistan is an example of a state in which rape has been so closely aligned with fornication and adultery under Islamic law that victims are frequently punished for committing zina rather than seeing their attackers convicted.” 13)Norman, Julie. “Rape Law in Islamic Society: Theory, Practice, and Reform.” Center for Study of Islam and Democracy’s Sixth Annual Conference. April 22-23, 2005. Last Accessed December 2008. Available at http://www.globalwebpost.com/farooqm/study_res/islam/gender/norman_rape.pdf. Zina, or having sexual relations outside of marriage, is mentioned by the Qur’an no fewer than twenty-seven times, and in each verse it is condemned. 14)Ibid. The term zina does not distinguish between forced and willing intercourse, so rape victims have historically been considered adulterers and have been stoned or lashed according to customary punishments. In Jehan Mina v. the State, P.L.D. 1983, for example, the Federal Shari’a Court of Pakistan dismissed fifteen year-old Jehan Mina’s filed report of rape and instead convicted her of zina and sentenced her to jail. 15)Quraishi, Asifa. Hi“Her Honor: an Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective.“ Michigan Law Review. Vol. 18, No. 2. Winter 1997. Last Accessed December 2008. Available at http://law.wisc.edu/m/y2m3z/herhonor.pdf Similarly, in 1985, sixteen-year old Safia Bibi repeatedly reported being raped by her employer and his son, but without evidence from witnesses, Safia could not prove her case and was herself sentenced to fifteen lashes, three years imprisonment, and a fine. 16)Ibid. In spite of these Pakistani court cases, many argue that Islamic law does establish rape as a crime. As Asifa Quraishi points out, some legal scholars have acknowledged that committing zina under duress does not constitute zina at all, as a hadith from the life of the Prophet Mohammed demonstrates the Prophet withholding punishing from a woman who claims she did not willingly commit zina. 17)Norman, Julie. “Rape Law in Islamic Society: Theory, Practice, and Reform.”
“Mukhtar Mai—history of rape.”
However, the tribal customs of Pakistani courts are often conflated with shari’a, and in many cases, tribal leaders use Islamic law as a façade to carry out their own judicial customs. One such trial gained international media attention: In June 2002, thirty year-old Mukhtar Mai of Pakistan was gang-raped, allegedly on the orders of a shari’a court that was carrying out an honor punishment on behalf of a more powerful tribe. 18)BBC News Online. 28 June 2005. Last Accessed December 2008. Available at http://news.bbc.co.uk/2/hi/south_asia/4620065.stm After human rights watch groups pressured local officials, her trial was heard by an anti-terrorism court that convicted and sentenced to death four of her rapists. 19)Ibid. These courts essentially said that the lower court had not acted in accordance with shari’a. Mukhtar Mai’s case gained international media attention because Mai was brave enough to speak out about the crime, but it is traditionally difficult for women in Pakistan to bring rape cases to trial: Rape victims need four male witnesses willing to testify in court, as the word of women is often disregarded. 20)Norman, Julie. “Rape Law in Islamic Society: Theory, Practice, and Reform.” The shame experienced by rape victims and the potential punishment for fornication or adultery they face if unable to prove their cases discourages many women from prosecuting rape crimes. Many women fear that shari’a courts in Britain would also favor men in cases such as these.

The prospect of sharia courts invokes another concern that women may be forced into marriages and unable to easily obtain a divorce. Many Muslim states use national laws to determine minimum ages for marriage and even the extent of consent necessary for arranged marriages: In Yemen, there have been incidents of ten year old girls marrying men three times their age at the urging of parents. 21)“Child Bride gets Divorce after Rape, Beatings.” CNN Online. 16 July 2008. Last Accessed December 2008. Available at http://edition.cnn.com/2008/WORLD/meast/07/15/yemen.childbride/index.html. In Pakistan, there is a tradition of vanni in which feuding clans settle disputes by exchanging girls for marriage; although this practice is now illegal, it happens frequently in areas outside of government control. 22)Walsh, Declan. “15 child brides used to settle Pakistan feud.” The Guardian Online. 5 June 2008. Last Accessed December 2008. Available at http://www.guardian.co.uk/world/2008/jun/05/pakistan.humanrights?gusrc=rss&feed=networkfront In June 2008, the Guardian newspaper reported that fifteen child brides between the ages of three and ten were exchanged between tribes in order to quell a dispute that had already resulted in the deaths of nineteen people. 23)Ibid. Although the tribal practice remains unique to Pakistan, forced marriages among British Pakistani or Bangladeshi immigrants have already come into tension with laws in the UK. In 2007, the UK passed a Forced Marriage Protection Act, under which those being coerced into marriage could apply for an order of protection against the insistent party. 24)“New laws against forced marriages.” BBC News Online. 25 November 2008. Last Accessed December 2008. Available at http://news.bbc.co.uk/2/hi/uk_news/7747267.stm. From January to November 2008, the British Forced Marriage Unit handled over 1,500 cases, 65 percent of which involved immigrants or citizens of Pakistani origin. 25)Ibid. Many British are now concerned that British Muslims of South Asian origin are being used by their families as marriage partners in order to provide potential spouses with British citizenship.

Finally, there is concern in the UK about the difficulty that Muslim women must undergo in many countries to obtain a divorce. Men can be granted an Islamic divorce, or talaq, merely by denouncing their wives verbally three times, whereas many jurists force wives to testify against their husbands for a divorce. 26)Mayer, Ann Elizabeth. Islam and Human Rights. 99. The wives must prove that their husbands have abused them or denied them an essential right, but the prerogative of many men in Muslim countries to restrict a spouse’s expression of private information curtails the efforts of many women to obtain a divorce. 27)Ibid. In Pakistan, if a wife is granted a divorce by shari’a courts, she must offer her former husband monetary compensation for his loss, 28)“Child Bride gets Divorce after Rape, Beatings.” CNN Online. thereby forcing many women to relinquish their personal savings in exchange for the separation. In the United Kingdom, these strict measures have provoked criticism of the Islamic Shari’a Council (ISC), which mediates British civil divorces and Islamic divorces. If a woman has obtained a civil divorce but her husband refuses to grant her talaq, the ISC will review each case and may grant the Muslim woman an official Islamic certificate of divorce, provided that she returns her dowry to her former husband. 29)Islamic Shari’a Council. Last Updated 2008. Last Accessed December 2008. Available at http://www.islamic-shari’a.org/index.php?option=com_content&task=view&id=12&Itemid=27.

In France and Germany, the debate over human rights and shari’a is best exemplified by the hijab, or headscarf, controversy that brought Islamic gender relations to the forefront of debate. Although these incidents took place in the arena of education, they are indicative of the broader dispute on what many perceive as the latent sexism of Islam. When President Jacques Chirac introduced legislation banning all religious symbols (yet targeted at easing the headscarf argument), the newspaper Le Monde published a political cartoon of Chirac wrapping his bill around the head of a devious-looking mullah, who is in turn engulfing a small schoolgirl in a headscarf. 30)“French press debates headscarf ban.“ BBC News Online. 18 December 2003. Last Accessed February 2009. Available at http://news.bbc.co.uk/2/hi/europe/3330831.stm. Furthermore, much of the debate was framed in terms of “oppressive” practices of Islam and the obligation of females to cover themselves as a service to men. In reality, Bouzar Dounia and Saida Kada have found evidence to oppose this—many French women choose to wear the hijab to avoid unwanted male attention when appearing in public. 31)“Country Profile: France.“ Euro-Islam. In Germany also, head scarves caused controversy after the Federal Constitutional Court ruled that German states should decide individually whether or not to enforce a ban on headscarves in certain job sectors, including teaching. Half of the regions have upheld the ban for women in teaching or public sector positions, a law that Human Rights Watch has criticized as violating women’s rights. 32)“German headscarf ban violates rights: HRW.“ Euro-Islam. Last Accessed March 2009. Available at http://www.euro-islam.info/2009/02/26/german-headscarf-bans-violates-rights-hrw/. The terms of the debate, however, do not detract from the general perception of Islamic gender relations being incompatible with French values of laicite and German adherence to secular human rights.

The shari’a debate also includes the rights of freedom of expression and religion that have been curtailed by some Muslim states. The European Charter of Fundamental Rights explicitly grants the freedom of thought, conscience, religion, and expression in Articles 10 and 11. 33)“Charter of Fundamental Rights of the European Union.“ Official Journal of the European Communities. 18 December 2000. Last Accessed December 2008. Available at http://www.europarl.europa.eu/charter/pdf/text_en.pdf. This guarantee for European citizens goes further than the freedoms laid down by the Universal Islamic Declaration of Human Rights (UIDHR), in which Article 12a begins: “Every person has the right to express his thoughts and beliefs so long as he remains within the limits prescribed by the Law.” 34)Mayer, Anne Elizabeth. 160-161. Ann Mayer finds that the Arabic translation of this article actually replaces “within the limits of the Law” with the phrase “as long as he obeys the limits set by the shari’a.” 35)Ibid. She proposes: “One can surmise what specific rules in the shari’a would be likely employed to curtail these freedoms. For example, one would expect…at a minimum people would be prohibited from attempting to convert Muslims to other faiths and forbidden to speak disparagingly of the Prophet…the scope of the shari’a restraints that could be imposed under this provision is open-ended.” 36)Ibid. In Pakistan, shari’a has been used to support the blasphemy laws of the Pakistan Penal Code that makes it a crime punishable by death to defile the name Mohammed. 37)Report on Rising Intolerance towards the Religious Minorities of Pakistan. Research and Advocacy Cell of the Christian Liberation Front Pakistan. 26 April 2001. Last Accessed December 2008. Available at http://www.religiousfreedom.com/articles/blasphemy.htm. There are many prosecutions under sections 295B and 298 of the blasphemy law, including the arrest in 2001 of eight Christian evangelists who were punished for showing a Christian film in a predominantly Christian area of Jacobabad. 38)Ibid. That same month, over seventeen people were arrested during an “anti-blasphemy laws” protest in Karachi. 39)Ibid. In response, the Franciscans International, the Commission of the Churches on International Affairs of the World Council of Churches, and the World Alliance of Reformed Churches campaigned against Pakistan’s restrictions on religious freedoms of minorities, beginning with a joint written statement to the UN Commission on Human Rights condemning these prosecutions. Similarly, in Algeria, a country from which many Muslims emigrate to France, the French magazine L’Express International was banned for a week because of offense produced by the cover article, entitled “The Jesus-Muhammad Shock.” 40)“French magazine banned; some say it offends Islam.“ International Herald Tribune. 3 November 2008. Last Accessed February 2009. Available at http://www.iht.com/articles/ap/2008/11/03/africa/AF-Islam-Media.php.Critics are claiming that this amounts to censorship of speech relating to religious freedom. Could these restrictions on speech seemingly condoned by shari’a be implemented through national shari’a courts in Europe?

When analyzing the ways in which Pakistan and other Muslim countries use shari’a to justify gender inequality and restrictions on expression and religious freedoms, Islamic law seems incompatible with European legal norms. It is important to reiterate that Muslim immigrants’ perceptions of shari’a originate in their home countries’ implementation of fiqh, which differ greatly between countries and regions. Many even consider wearing the hijab an ethnic, rather than religious, custom, although it was used to attack Islam in France during its hijab controversy. The British government adviser on Muslim women, Shaista Gohir, understands the ethnic differences as she explains why British Muslims may not want shari’a councils: “Although Islam gives women numerous Islamic rights, many Muslim women would fear discrimination due to patriarchal and cultural reasons. Muslims, particularly women may be pressured by families and communities into using shari’a courts.” 41)“Reaction in quotes: Shari’a law row.” BBC News Online. 8 February 2008. Last Accessed December 2008. Available at http://news.bbc.co.uk/2/hi/uk_news/7234422.stm. National interpretations of shari’a have produced many of these tensions between Islamic and European law.

Existing Acceptance of Shari’a in Europe

Despite these incompatibilities, there are several aspects of shari’a already incorporated in European national law. Shari’a-compliant banking and credit exist comfortably in society and have the potential to become more popular with both Muslim and non-Muslim citizens. The introduction of shari’a courts has garnered mixed reactions, but the religious councils still exist. These financial and family aspects of shari’a already are already present in British and French society, and it appears that Muslims will be satisfied with the incorporation of these selected parts of shari’a in their host countries.

In Britain, sharia-compliant financing has quietly and steadily become more popular in over the past decade. According to the executive director of Gatehouse Bank, Samer Merhi, the shari’a-compliant market will be worth a trillion dollars by 2010, potentially causing the number of Islamic banks in the UK to double in five years. 42)Sapsted, David. “UK Islamic Banks to Double in Five Years.” The National Newspaper. 16 August 2008. Last Accessed December 2008. Available at http://www.thenational.ae/article/20080816/BUSINESS/957576411/-1/ART. As the financial companies of the world recognize the demand for shari’a-compliant banking, they are opening branches across Europe in an attempt to cater to the many Muslims residing there. The UK was the first EU member state to authorize Islamic banks, and one of its largest retail banks, the Islamic Bank of Britain, took the unprecedented step of registering with the Financial Services Authority in 2004. 43)Ibid. Since then, the UK has quickly expanded banking options for British Muslims, resulting in the shari’a-compliant Cordoba Gold MasterCard that is prepaid rather than reliant on interest and the UK’s first insurer that will cover Muslim motorists by putting all its investments in companies that adhere to Islamic tenets. 44)“UK’s first-ever shari’a-compliant insurer launched.” London Stock Exchange. 28 July 2008. Last Accessed December 2008. Available at http://www.euro-islam.info/2008/07/28/uks-first-ever-shari’a-compliant-insurer-launched/. The British government has been a strong supporter of Islamic finances in the UK: In 2008, it began offering shari’a-compliant pensions to those who do not have company pensions, and it is now considering the creation of a shari’a-compliant bond. 45)“Muslims to be offered shari’a-compliant pensions by government.” The Telegraph. 21 November 2008. Last Accessed December 2008. Available at http://www.euro-islam.info/2008/11/21/muslims-to-be-offered-shari’a-compliant-pensions-by-government/. This has led HSBC Amanah, one of the UK’s top banks, to believe that the government desires to make London the hub of shari’a banking in Europe. 46)Sapsted, David. “UK Islamic banks to double in five years.” France has also realized this potential, prompting the French Finance Minister Christine Lagarde to pledge changes that will spur the growth of Islamic banking in Paris. 47)“Global financial crisis broadens appeal of Islamic finance in France.“ International Herald Tribune. 24 December 2008. Last Accessed February 2009. Available at http://www.euro-islam.info/2008/12/24/global-financial-crisis-broadens-appeal-of-islamic-finance-in-france/.

Separate Islamic banks allow Muslims to obey the strict financial regulations of Islam despite living outside of Muslim countries. Shari’a prohibits the earning or paying of riba, or interest, which often makes purchasing house mortgages, opening bank accounts, investing, and buying insurance difficult decisions for Muslims who must choose between their religious beliefs and essential finances in daily life. 48)“Islamic finance makes a move into the mainstream.” The Independent. 26 July 2008. Last Accessed December 2008. Available at http://www.independent.co.uk/money/invest-save/islamic-finance-makes-a-move-into-the-mainstream-877728.html. However, the recent global economic crisis has made fluctuating interest rates a concern, and many non-Muslims are recognizing financial benefits that may accompany shari’a-compliant banking. As The National Newspaper put it, “Islamic banking in London, unencumbered by the woes of subprime mortgages and the credit crunch, is undergoing an unparalleled boom.” 49)Sapsted, David. “UK Islamic banks to double in five years.” Germany, as the strongest economy in the Eurozone and home to the second largest European population of Muslims, would be another prime center of Islamic banking, as many are beginning to realize. Deutsche Bank already offers five shari’a-compliant mutual funds in Dubai, but it may consider moving those options closer to home. 50)“Germany deemed fertile ground for Islamic banking.“ Euro-Islam. Last Accessed March 2009. Available at http://www.euro-islam.info/2008/12/22/germany-deemed-fertile-ground-for-islamic-banking/. France has also recognized the importance of this facet of shari’a: In January 2009, the Strasbourg School of Management introduced a degree in Islamic finance, becoming only the second European country to offer such a program. 51)“Program in Islamic Finance to begin at the Strasbourg School of Management.“ Euro-Islam. Last Accessed February 2009. Available at http://www.euro-islam.info/2009/01/19/diploma-in-islamic-finance-to-begin-at-the-strasbourg-school-of-management/. As others begin to take advantage of Islamic banking, they unquestioningly accept one aspect of shari’a law that governs the lives of British Muslims. It is perhaps surprising to realize that while willfully pursuing one tenet of shari’a, the British public is much more skeptical of Islamic family law.

The first shari’a court in the UK, known as the Muslim Arbitration Tribunal, was established in Warwickshire in December 2007, 52)“First UK Shari’a court up and running in Warwickshire.” Coventry Telegraph. 9 Sept. 2008. Last Accessed December 2008. Available at http://www.coventrytelegraph.net/news/north-warwickshire-news/2008/09/09/first-uk-shari’a-court-up-and-running-in-warwickshire-92746-21708478/., several years after Islamic banking had begun. Since then, it has settled over 100 civil disputes, including those involving inheritance arguments, divorce recommendations, and neighborhood disagreements. 53)Ibid. Both parties must agree to settle their dispute at the Tribunal, but after the trial, the court’s decision is binding and enforceable by the court bailiff or sheriff, thereby closely aligning the system with the British law. In divorce cases, however, the tribunal’s annulment will be upheld regardless of a husband’s consent to submit to the court’s jurisdiction. 54)Ibid. The Muslim Arbitration Tribunal has since expanded to include shari’a courts in London, Birmingham, Bradford, and Manchester. 55)“No plan for Islamic law in Scotland, say ministers.” The Times Online. 9 Oct. 2008. Last Accessed December 2008. Available at http://www.timesonline.co.uk/tol/news/uk/scotland/article4916917.ece.

These courts existed uncontested until February 2008, when the Archbishop of Canterbury Rowan Williams publicly endorsed the application of shari’a parallel to the British legal system. The Archbishop’s remarks sparked public outcry and enquiry into the existing shari’a courts. When it was determined that the Muslim Arbitration Tribunal had been speaking with community members in Scotland about establishing a shari’a court there, the Scottish government sternly rejected the notion of a “dual legal system.” 56)Ibid. In opposition, the Church of Scotland Reverend Ian Galloway stated: “What is being brought to us is not some kind of parallel jurisdiction that replaces our legal system; rather it is a space, within a given community, for disputes to be resolved.” 57)“Church of Scotland backs Islamic shari’a law courts.” The Scotsman. 10 October 2008. Last Accessed December 2008. Available at http://news.scotsman.com/scotland/Church-of-Scotland-backs-Islamic.4578904.jp. The Lord Chancellor Jack Straw pointed out that religious councils, including those of the Church of England and the British Jewish community, are legal as long as their decisions do not contradict the criminal law of the UK; he further declared that the rare cases of arbitration councils are granted power by the 1996 Arbitration Act. 58)“English law reigns supreme over shari’a, says Straw.” The Telegraph. 30 Oct. 2008. Last Accessed December 2008. Available at http://www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/3286766/English-law-reigns-supreme-over-shari’a-says-Straw.html. It is estimated that unofficial shari’a councils have been operating in Britain for over two decades. 59)“Britain Grapples with Role for Islamic Justice.” The New York Times. 18 Nov 2008. Last Accessed December 2008. Available at http://www.nytimes.com/2008/11/19/world/europe/19shari’ah.html?_r=2&ei=5070&emc=eta1.

In France, court decisions have often been sympathetic to Muslim arguments, which demonstrates the extent to which shari’a is already integrated into the French legal system. In April 2008 a court in Lille granted the divorce of a Muslim couple because the woman had lied about her virginity. 60)“French Appeals Court Restores Marriage in Virginity Case.” Euro-Islam. Last Accessed February 2009. Available at http://www.euro-islam.info/2008/11/17/french-appeals-court-restores-marriage-in-virginity-case/.Although this decision was overturned by an appeals court in Douai, the original judgment relied on the perception that virginity is essential to an Islamic marriage, showing that the court had displayed an astounding amount of deference to shari’a law. Even when the French government decided to deport Imam Abdelkader Bouziane for statements approving Muslim husbands beating unfaithful wives, a court stepped in to reverse the deportation and allowed him to remain in France. 61)“French Court Quashes Imam Deportation.” Islam Online. 27 April 2004. Last Accessed February 2009. Available at http://www.euro-islam.info/2004/04/27/french-court-quashes-imam-deportation/. Clearly, it appears that French courts already defend shari’a law for French Muslims.

The Muslims who have campaigned for some form of shari’a jurisdiction are those attempting to integrate in European societies while retaining their Islamic faith. They do not desire to change Europe by imposing shari’a law upon everyone. This can be best viewed in the population of British Muslims: Up to 40 percent of British Muslims have professed support for a shari’a court system in the United Kingdom, 62)“Muslims Poll—February 2006.“ ICM Research. Feb. 2006. Last Accessed December 2008. Available at http://www.icmresearch.co.uk/pdfs/2006_february_sunday_telegraph_muslims_poll.pdf. yet a Gallup poll done in 2007 shows that 64 percent of British Muslims also have faith in the British government, a statistic that mirrors that of the British non-Muslim population. 63)“Basis for Greater Understanding Already Exists.“ Gallup. 2007. Last Accessed December 2008. Available at http://www.gallup.com/poll/27409/Muslims-Europe-Basis-Greater-Understanding-Already-Exists.aspx_. Furthermore, a 2002 poll done by ICM Research reveals that 58 percent of polled Muslims define themselves as “British Muslims,” whereas only 30 percent consider themselves exclusively “Muslim.” 64)Muslims in London. ICM. 2002. Last Accessed December 2008. Available at http://euro-islam.info/ei/wp-includes/pdf/muslims_in_london.pdf. From these statistics, it is evident that the majority of British Muslims desire to integrate peacefully in British society, as long as they can also adhere to their religious beliefs. The presence of Islamic banking and shari’a courts facilitates their religious observances, but the majority does not desire extreme changes, such as exclusive rule of shari’a law in Britain or the creation of a European caliphate. When polled about the drafting of a new constitution, a majority of European Muslims said they would not include religious leaders in the process, if given the choice. 65)[Esposito, John. Who Speaks for Islam? What a Billion Muslims Really Think. Gallup Press: New York, 2007. These polls show that the many Muslims are attempting to maintain their religion while living lives of ordinary citizens.

Finally, Islam’s tradition with the most potential to integrate Islamic law in EU society is that of itjihad, or the scholarly interpretation of original sources of Islamic law. Following this custom, the European Council for Fatwa and Research (ECFR) answers questions from, and issues fatwa for, Muslims attempting to follow their faith outside of a Muslim state. Their fatwa include prescriptions for the marriage of a converted Muslim woman to a non-Muslim man, the accommodation of alcohol in a space owned by a Muslim, the extent to which wives should be dependent on their husbands in a foreign country, and many other answers to challenges that Muslims face in daily life while living in Europe. 66)“First Collection of Fatwas.“ European Council for Fatwa and Research. Anas Osama Altakriti (trs.). Dublin, Ireland. Last Accessed December 2008. Available at http://www.e-cfr.org/en/. A second source of itjihad is demonstrated through the work of individuals who attempt to make shari’a law more compatible with the European system of laws and values: Zainah Anwar, the Executive Director of Sisters in Islam, is a leading scholar in this area. She draws attention to the socio-political context of the Qur’an and uses present-day norms to provide a new basis for the text. Anwar sums up her approach: “In the end, the objective of the teachings of Islam, the objective of shari’a law, is to ensure that justice is done.” 67)Anwar, Zainah. “Islamisation and Its Impact on Democratic Governance and Women’s Rights in Islam: A Feminist Perspective.” Center for the Study of Islam and Democracy. Last Accessed December 2008. Available at http://theamericanmuslim.org/tam.php/features/articles/gender_issues_islamisation_and_its_impact_on_democractic_governance_and_wom/. In this way, shari’a can be reinterpreted to include more equal treatments for men and women: The scholar Amina Wadud has been engaged in what she terms “gender jihad” against patriarchal interpretations of the Qur’an and other sources of Islam. Her efforts have proven successful after the Muslim Institute’s August 2008 introduction of an Islamic marriage contract which enumerates the rights and obligations of the wife, including her right to divorce her husband. 68)Rahman, Samia.“Changing the face of Muslim family life.“ The Guardian Newspaper. 8 Aug 2008. Last Accessed December 2008. Available at www.guardian.co.uk/commentisfree/2008/aug/08/religion.islam. In these ways, the custom of itjihad can better accommodate Western standards of human rights and social norms by reinterpreting Islamic sources in ways that also follow shari’a. 69)Rahman, Samia.“Changing the face of Muslim family life.“ The Guardian Newspaper. 8 Aug 2008. Last Accessed December 2008. Available at www.guardian.co.uk/commentisfree/2008/aug/08/religion.islam.

The Politicization of Islam

In December 2008, the Pew Research Center released polls showing that anti-Muslim attitudes continue to increase in Western Europe. 70)“Anti-Muslim Attitudes Rise in Europe.” Euro-Islam. 8 December 2008. Last Accessed December 2008. Available at http://www.euro-islam.info/2008/12/08/europe-anti-muslim-attitudes-rise-in-europe/. This statistic is startling after reviewing the acceptance of some aspects of Islamic law in Europe. Why is there such a discrepancy between the legal and social discourse of Islam? The politicization of Islam explains the tense political climate surrounding the integration of Islamic law; the legality of shari’a courts and arbitration tribunals does not translate into social acceptance, which has created the heated debate in the EU about the place of shari’a in the Europe. Islam has transformed into a political issue for social, rather than legal, reasons, four of which are introduced below.

First, adherence to Islamic law appears to emphasize Muslims as “foreign” within a geographic region that is striving to achieve a shared sense of European identity. In the 2002 book Reporting Islam: Media Representations of British Muslims, Elizabeth Poole notes that the portrayal of British Muslims in various forms of media, combined with the sense of “otherness” afforded to non-white races by the British, has created the identification of Muslims with their ethnic roots and has prevented them from being viewed as British citizens. 71)Poole, Elizabeth. Reporting Islam: Media Representations of British Muslims. London: I.B. Tauris, 2002. She notes that the way they are portrayed in society perpetuates the opinions “that Muslims are a threat to British mainstream values and thus provoke integrative concerns; that there are inherent cultural differences between Muslims and the host community which create tensions in interpersonal relations; that Muslims are increasingly making their presence felt in the public sphere.” 72)Poole, Elizabeth. 20. Debates on Islamic law perpetuate this perception of Muslims as foreign by suggesting that they desire an entirely separate legal structure, one that many British view as “something which is external to our country and not to do with the development of a common citizenship,” in the words of Former Home Secretary David Blunkett. 73)“Reaction in Quotes: Shari’a Law Row.” BBC News Online. In France, Nicolas Sarkozy has differentiated between “good” and “bad” Islam, distinguishing mostly on the basis of “French Muslims” versus “foreign Muslims.” 74)“Country Profile: France.“ Euro-Islam website. Last Accessed February 2009. Available at http://www.euro-islam.info/country-profiles/france/. Sarkozy’s distinction infers that Muslims who give up all traces of their national culture to assimilate in French society as a “Muslim” rather than “Algerian Muslim” or “Turkish Muslim” will be accepted by the French public. To the European public, Islam and shari’a are foreign creations.
Author Aini Linjakumpu protests that this identification of Islam with different cultures may not be wholly detrimental, and she insists that “foreign cultures and religions have an intriguing role in constructing identity…Mutual interaction helps to define the borderline between self and other. Thus, Islam is also relevant in defining European identity, not just for the identities of Muslim countries. 75)Linjakumpu, Aini. Political Islam in the Global World. United Kingdom: Ithaca Press, 2008. Although the author’s perception of identity-building may be positive when describing the interaction of two separate societies, it becomes problematic when Islam is used to identify as “other” Muslim citizens of the United Kingdom, France, or other European countries. Even immigrants who wish to observe the laws and culture of a new home nation are stigmatized by the use of Islam in identifying a culture foreign from Europe. Furthermore, instead of being viewed as a foreigner comparable to an American or other Western national, this identification of Islam estranges it from the values promulgated by the EU as part of European identity, namely ideas including equality, humanism, and freedom, which are enshrined in the EU Charter. 76)“Charter of Fundamental Rights of the European Union.“ Official Journal of the European Communities. This compounds the problem of identifying Muslims as foreign, because “foreign” then holds connotations of intolerant or un-free.

Second, Islamic law’s religious basis offends and seems to threaten the rapid secularization of Europe. France was the most secular European country polled in 2008 by the Pew Research Center, and in Britain, only 13 percent of those British polled characterized religion as “very important” in their lives. 77)“Unfavorable Views of Jews and Muslims on the Increase in Europe.“ Pew Center for Research. 17 September 2008. Last Accessed December 2008. p 18. Available at http://pewglobal.org/reports/pdf/262.pdf. Britain, France, and Spain were the only three countries in which majorities considered religion “not important” for life. 78)Ibid.In Germany, the number of Catholic or Protestant believers is drastically declining, so that Islam is now the third largest religion of the country. 79)“In Germany, churches still central but slipping.” Euro-Islam. Last Accessed March 2009. Available at http://www.euro-islam.info/2009/02/05/in-germany-churches-still-central-but-slipping/. In contrast, the majority of European Muslims consider religion central to their lifestyles, and it was quite common for respondents to say they followed the religious behaviors of praying five times a day and fasting during Ramadan. 80)Ibid. Of Pakistani Muslims, who compose the largest ethnic group of immigrants in the UK, an overwhelming 98 percent of those surveyed considered religion important. 81)Ibid Furthermore, among Turkish citizens, who have a strong history of secularism that may have helped them to integrate in France, 94 percent say religion is important. 82)Ibid. These statistics hint at the tension between religiously devout Muslims and secular British citizens which may arise in the UK as a result of shari’a law debates. Linjakumpu asserts: “State secularism does not give cultural and legal grounds for Islamic activities. For Islam, state secularism means that religion is systematically kept outside the political system, and thus secularism is a way of preventing the legitimate participation of Muslims in political life. Islamism is a threat to the secular state because it brings Islam into the political sector and leads to an understanding that politics is open to religiously motivated actions.” 83)Linjakumpu, Aini. 138.

More specifically, Islamic law threatens the very nature of secular law in Europe. As the British Shadow Minister for Community Cohesion Baroness Warsi stated regarding the shari’a debate: “Under the rule of law in this country, we recognize religious practices. [But] I’m absolutely clear in my mind that what is right for Britain is that we are all subject to the same law, criminal and civil, and that we are, whatever our differences are, treated equally before that law.” 84)“Reaction in Quotes: Shari’a Law Row.” BBC News Online. In other words, religious law endangers the social cohesion of a secular society.

Third, and perhaps most importantly, the influence of shari’a law within a legal system heightens the public’s security concerns of radicalization and terrorism. In a 2005 report on Islamic extremism, the Pew Center for Research found: “In non-Muslim countries, fears of Islamic extremism are closely associated with worries about Muslim minorities. Western publics believe that Muslims in their countries want to remain distinct from society, rather than adopt their nation’s customs and way of life. Moreover, there is a widespread perception in countries with significant Muslim minorities, including the U.S., that resident Muslims have a strong and growing sense of Islamic identity. For the most part, this development is viewed negatively, particularly in Western Europe.” 85)“Islamic Extremism: Common Concern for Western and Muslim Publics.” Pew Center for Research. 14 July 2005. Last Accessed December 2008. Available at http://pewglobal.org/reports/display.php?ReportID=248. The context of this poll makes the results even more disturbing: Although the World Trade Center attacks on September 11, 2001 undoubtedly influenced public opinion of Islamic extremism around the world, the statistics for the Pew Center’s report were gathered months before the London bombings, at a time when the UK felt relatively secure about the Muslims within its borders. Clearly, the 2008 report indicating the increase of Islamophobia in the UK 86)“Unfavorable Views of Jews and Muslims on the Increase in Europe.“ Pew Center for Research. captured the rising mistrust of Muslims since 2005, but the negative view of British Muslims prior to the 2005 London bombings indicates that the British distrust Islam inherently rather than as a result of continual terrorist attacks. Linjakumpu proposes a historical justification for their fear: “Islamic movements are often considered as essentially revolutionary organizations that come to power through rapid—either violent or peaceful—change. This idea is generally linked to the revolutionary tradition of Islam, which in modern times has been expressly manifested in the Islamic revolution of Iran.” 87)Linjakumpu, Aini. 136. While this interpretation seems valid, it is worth pointing out that the Muslim Brotherhood and other organizations researched by Linjakumpu are entities with political goals, rather than individual Muslims living in European nations. British Muslims may band together around mosques in order to fulfill communal needs such as education, national cultural activities, and other necessities, but a 2006 survey found that 43 percent were just as concerned as non-Muslim British citizens about the rise of Islamic extremism. 88)“Muslims in Europe: Economic Worries Top Concerns about Religious and Cultural Identity.” Pew Center for Research. 6 July 2006. Last Accessed December 2008. Available at http://pewglobal.org/reports/display.php?ReportID=254. Islamic extremism remains a global concern echoed in European public opinion and exacerbated by debate on the application of shari’a law, even leading one right-wing watchdog group to call shari’a in Britain a “terrorist loophole.” 89)“Terrorist Loophole: Shari’a Law in Britain.” LaRouche Political Action Committee. 3 December 2008. Last Accessed December 2008. Available at . Germany’s Deputy Interior Minister August Hanning only worsened this fear by telling citizens that the government believes there are roughly seven hundred German citizens involved in Islamic extremist movements. 90)“Hundreds of potential terrorists live in Germany, official says.” Euro-Islam. Last Accessed February 2009. Available at http://www.euro-islam.info/2008/11/01/hundreds-of-potential-terrorists-live-in-germany-official-says/. Similarly, the right-wing French party Front National has unashamedly used anti-Muslim rhetoric to capitalize on this fear: Jean-Marie Le Pen described the potential radicalization of Muslim immigrants in terms that implicated him for inciting hatred, 91)“Country Profile: France.“ Euro-Islam. but his party still came in second in the 2002 French election. Furthermore, the Mouvement pour la France (MPF) arose under the leadership of Philippe de Villiers, a figure who published a book about Muslim conspiracies to implement shari’a and garners support by abusing the notion of the “Islamicization of France.” Debate on implementing shari’a seems to embody this fear of growing radicalization.

Finally, it is crucial to understand through what means the debate about shari’a is framed. In September 2008, the Cardiff School of Journalism, Media and Cultural Studies released research finding that “two thirds of newspaper stories in the UK portray British Muslims since 2000 as ‘a threat’ or ‘problem.’ 92)“Two-thirds of UK media reports Islamophobia, research finds.” Euro-Islam. 13 September 2008. Last Accessed December 2008. Available at http://www.euro-islam.info/2008/09/13/two-thirds-of-uk-media-reports-islamophobic-research-finds/. In addition to over-covering Muslims in society, the media linked a third of its stories on British Muslims to terrorism or the war on terror. 93)Ibid. The growth of negative portrayals of Muslims as time progresses farther away from the London bombings of 2005 indicates that anti-Muslim sentiment is a product of more factors than simply the fear of terrorism. Instead, the media seems to be following public opinion by catering to those British citizens who view Islam as a threat to ordinary British life. In a BBC News Online article discussing case studies of the application of shari’a in a parallel system to civil law, many comments from readers imply a fear of losing a sense of British or European identity; reader Kevin Hoad’s widely echoed nationalist sentiment states: “This is the United Kingdom of Great Britain not Iraq or Pakistan. Muslims who come to this country to live must accept the legal and social systems under which this country is governed. There is no place for alternative legal systems to suit particular religions or ethnic groups.” 94)Comment by Kevin Hoad. “Should Aspects of Shari’a Law be Used in the UK?“ BBC News Online. July 2008. Last Accessed December 2008. Available at http://newsforums.bbc.co.uk/nol/thread.jspa?forumID=5061&edition=2&ttl=20081214214356. The French political scientist Vincent Geisser offers an alternate explanation of the media’s role by claiming that the media is neither a homogenous entity nor the only element that plays into people’s perception of Islamophobia. 95)“Country Profile: France.” Euro-Islam. After studying the portrayal of Islam in 8 o’clock news coverage, Thomas Deltombe, concludes that the Islamophobia depicted in the media merely represents, rather than develops, the public’s fear of Islamic radicalization. 96)Ibid.
Either way, the persistence of right-wing French newspapers in employing anti-Muslim and Islamophobic language demonstrates the acceptance of European publics to hearing such derogatory claims. Clearly, the legal and perhaps even political compatibility of shari’a with European law cannot overcome social protest strongly portrayed by and through the media.

Conclusion

Europe has many incentives to accommodate some aspects of shari’a law into its legal systems and societies. As already recognized by the British government, Islamic banking reaches a market of over two million Muslims residing in the country, 97)Sapsted, David. “UK Islamic banks to double in five years.” and it provides alternatives to ordinary banking that non-Muslims citizens may find attractive in turbulent economic times. Unofficial shari’a courts and sanctioned arbitration tribunals, which can offer a religion-based alternative to English and French courts for family and domestic disputes, have existed uncontested for several decades. Yet the recent climate of fear brought about by Islamic extremists and terrorist attacks makes the public more hesitant and even hostile to shari’a. The politicization of Islam by the European media focuses on negative portrayals of Muslims and on the misuse of shari’a in Muslim countries that confuse tribal or regional practices with Islamic law. This negative attitude risks alienating the Muslim population by halting or even reversing the progress it has made toward shari’a-compliant alternatives to financial and family law.

Although media portrayals of shari’a greatly influence the European public, the government must work more efficiently to determine the true desires of Muslim immigrants. Although Muslims are diverse enough to make this a difficult task, the countries mentioned here could accommodate many of the religious needs of its citizens, as they are not asking for a caliphate or a country governed exclusively by shari’a. Furthermore, the tradition of itjihad should be considered a viable source of integration for shari’a in British, French, and German society. The Islamic standards of human rights could be reinterpreted in a European framework to satisfy Western values and norms. There also needs to be further research on the utility of itjihad as a way to bridge national distinctions between Muslims and their beliefs; if Muslims could agree on a common framework of law, they would have more political power to advocate their position. Finally, the social dissent against introducing shari’a in European nations must be explored to determine exactly which aspects of shari’a the public protests. Europeans view shari’a as threatening their way of life, rather than enhancing the religious experience of European Muslims. Both the governments and Muslim citizens must work to revise their view by pointing out the limited aspects of shari’a desired by Muslims and the ways in which aspects of shari’a law are already compatible with the many European legal systems.

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“Terrorist Loophole: Shari’a Law in Britain.” LaRouche Political Action Committee. 3 December 2008. Last Accessed December 2008. Available at http://www.larouchepac.com/news/2008/12/03/terrorist-loophole-shari’a-law-britain.html.

“Two-thirds of UK media reports Islamophobia, research finds.” Euro-Islam. 13 September 2008. Last Accessed December 2008. Available at http://www.euro-islam.info/2008/09/13/two-thirds-of-uk-media-reports-islamophobic-research-finds/.

“UK’s first-ever shari’a-compliant insurer launched.” London Stock Exchange. 28 July 2008. Last Accessed December 2008. Available at http://www.euro-islam.info/2008/07/28/uks-first-ever-shari’a-compliant-insurer-launched/.

“Unfavorable Views of Jews and Muslims on the Increase in Europe.“ Pew Center for Research. 17 September 2008. Last Accessed December 2008. p 18. Available at http://pewglobal.org/reports/pdf/262.pdf.

Walsh, Declan. “15 child brides used to settle Pakistan feud.” The Guardian Online. 5 June 2008. Last Accessed December 2008. Available at http://www.guardian.co.uk/world/2008/jun/05/pakistan.humanrights?gusrc=rss&feed=networkfront.

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