“…The European Union, a singular example of democratic constitution and integration of different cultures, can prove that there is an alternative formula to cultural uniformity or domination: a dialogue which respects different cultures and their representatives, as long as these different cultures are ready to respect the fundamental values of man”
Thus Romano Prodi, former president of the European Commission, expounded on what he perceived as the benefits of the flexibility and inclusivity of the European constitution. This perception seems to form the foundational argument for those seeking to integrate a form of Shari’a into the United States legal structure, an argument which is premised on the assertion that a truly democratic government must accommodate in whole or in part, particular legal statutes of Islam, and by implication, any other religion that desires such accommodation. As is true with so many new social experiments however, there is a marked difference between the promised benefits of such change and the reality of such change once enacted. In this paper I will attempt to give an overview of the implementation of Shari’a in one member of the European Union – Germany, and briefly discuss the arguments for and against the implementation of Shari’s in the United States.
Shari’a is defined by the Quranic verse XLV:18 as “the path which has been prepared, the divinely appointed path”, and yet there are at present two widely differing definitions of Shari’a: 1) any religious or legal rule mandated by Islam, including regulations on worship, alms, contracts, family and penal, and 2) a more restrictive view of shari’a held by European non-Muslims and Muslims of Turkish background which sees Shari’a as encompassing only issues of personal status, family, inheritance and corporal punishment (Rohe, 325).
By way of background, Muslim lawyers have historically argued against Muslims spending much time in lands not included in dar al-Islam, fearing that these Muslims would experience persecutions and that Islam itself might be weakened by such long-term interaction with non-Islamic, dominant cultures (“Application”, 346). The existing reality of Muslim life, however, portrays a seeming rejection of that warning. In a fairly recent survey, one-third of all Muslims were reported as living in non-Islamic countries, in many cases, by their own choosing (“Application”, 347). Furthermore, beyond just living in non-Islamic lands that welcome or at minimum protect Muslims – (“dar al-ahd”), Muslim thinkers are working to redefine Islamic life within the legal framework of Europe, and have rejected the concept of “dar al-ahd”, arguing that the world is dar wahida – “one house” for all of mankind, and Muslims are entitled to live in any part as they choose (“Application”, 347-348). In fact, Muslims living in European nations such as France, Benelux and Scandinavia are demanding the implementation of some type of shari’a in their respective, cloistered communities (Trifkovic, 2007). This paradigm shift in worldview consequently presents difficulties for those Islamic thinkers who concern themselves with the implementation of Shari’a within the non-Islamic European legal structure (“Application”, 348). Complicating this work is the pluralism and lack of consensus among divergent Muslim ethnical groups (Turkish, Arab, Bosnian…etc.) and religious traditions such as Sufism (“Application”, 324). Further complications include the fear among non-Muslims in Europe that an implementation of Shari’a might gradually expand to the point that laws viewed by non-Muslims as Draconian might be re-introduced into European society (“Application”, 325). According to Rohe, however, this fear is unfounded for two reasons; first, with respect to Germany, there are safeguards in place such as Article 79, Section 3 of the German constitution which protect against legislators seeking to “reduce” or “abolish” human rights’ protection, and second, the majority of Muslims in Europe favor the constitutional protections granted by the European constitution (“Application”, 325). Yet despite Rohe’s cheery assessment of Muslim attitudes toward European democracies, surveys taken in the U.K. in 2006 revealed that 40% of Muslims wanted the implementation of shari’a in predominantly Muslim parts of the country, and 22% of Muslim respondents believed the July 2005 London bombings were justified in light of British policies, a figure which climbed among Muslims younger than 45 – hardly the admiring view of Western democracies described by Rohe. Furthermore, Rohe’s assessment does not line up with German experience.
German law seems to be a much more flexible environment with respect to shari’a than the U.S. legal system. For example, one of the issues that must be decided in German courts in specific cases is whether German or foreign law will be used to determine an outcome (“Islamic Law”, 47). In some cases, the law applicable in the country of the litigants’ origin will apply, in other cases, the law where they reside (Germany) will prevail (“Islamic Law”, 47). An illustration of such a situation can be found in the scenario provided by Rohe in which a Jordanian couple whose marriage was contracted in Jordan seeks a divorce in German courts; in this case, Jordanian Family law will decide the case (“Islamic Law”, 48). What’s more, Rohe seems to imply that German constitutional protections will only intervene in cases in which one or both of the litigants (in family matters such as divorce) are either German citizens or have a German “domicile” (“Islamic Law”, 50). One can only wonder what happens in the case of a Muslim litigant who desires the protections of German law but has the status of a foreign national ‘guest worker’ in Germany; is such a person denied German justice in favor of Islamic justice? Other cases which have actually been decided in German courts in favor of shari’a precedents include cases involving the prohibitions against inter-religious marriages and the guardianship and custody of children (“Islamic Law”, 51). Further examples of the ‘real world’ implications of shari’a implementation seem to abound, in contrast to the utopian philosophical arguments put forward by advocates of such implementation who imply that integrating shari’a would be a seamless process which would not in any way violate the sovereignty of Western laws as they relate to constitutional protections. In fact, Mathias Rohe opposes what he calls “stereotypical” arguments against implementing shari’a, namely those arguments that assert that shari’a would reintroduce draconian laws and punishments which Europe outlawed centuries earlier (“Islamic Law”, 46). On pages 46-47 of “Islamic Law in German Courts”, he clearly asserts that “German standards of human rights, democracy and the rule of law are untouchable without any exception”, yet he fails to acknowledge the human component (judges) necessary for the enforcement and protection of these enlightened ideals, a human component which can fail at times, rendering such protections worthless. A case in point was a German judge’s decision to cite shari’a law over and above German law in a case in which a husband with Moroccan origins regularly beat his German-born wife (Trifkovic, 2007). Citing the Qur’an’s allowance of wife-beating, this judge ruled that the husband’s use of the Qura’nic “right to castigate” did not meet German federal law’s criteria for divorce based on “hardship”, and went on to excuse the husband’s mistreatment of his wife by saying that the wife may have in fact given her husband grounds for claiming his honor had been violated by her Western lifestyle (Trifkovic, 2007)! Christa Stolle, a member of the women’s rights group Terre des Femmes, has noted that in a number of cases involving marital abuse, the “culture of origin” of the perpetrator was taken into consideration and mitigated the judgment (Trifkovic, 2007). Ronald Pofalla, general secretary of the ruling Chrisitan Democratic Union in Germany was blunt in his assessment of the inroads shari’a is making in Germany: “unless the madness is checked, it will be good night to us all, well before this century is over” (Trifkovic, 2007).
Such dilemmas posed by the coexistence of domestic and foreign law in Germany raise many questions as to the implications of the United States allowing an alternate legal system to exist within its overall constitution-based legal system. The U.S. constitution was written and designed to be a complete legal framework, applicable to all citizens and residents of the United States; it was never intended to be applied to restricted segments of American society, the early issue of slavery notwithstanding, nor were provisions written into the constitution permitting foreign law to supersede it or even inform it. For a particular ethnic group to immigrate to the United States, seeking United States citizenship, and claim that the U.S. constitution is inadequate to meet their legal needs is at best presumptuous. To give in to these demands for an alternate legal structure would be a social experiment that could produce unconstitutional inequalities in the dispensing of justice as well as dangerous social conditions as is already occurring in Germany. According to an article in Spiegel Online International, “a disturbing number of rulings are helping to create a parallel Muslim world in Germany that is welcoming to Islamic fundamentalists” (“Paving”, 2007). Even honor killings in Germany have been ruled manslaughter and not murder in apparent deference to shari’a and cultural sensitivity (“Paving”, 2007). Here it is appropriate to revisit Romano Prodi’s statement cited at the beginning of this paper where he boasts that such integration of legal cultures is a worthy goal as long as “…these different cultures are ready to respect the fundamental values of man”. The obvious question which seems to remain unanswered is who defines and enforces these “fundamental values” in a legal system where judges seem to have discretion in selectively discarding Western notions of the ‘rights of man’ in favor of the Islamic view?
The underlying issue in Germany (and perhaps soon in America) in deciding whether or not to allow shari’a and to what degree, seems to be the debate over how much integration the state can or should require of immigrants (“Paving”, 2007). In Germany, the turbulence generated by this question has given rise to what some consider miscarriages of German justice, and gives reason to pause when considering implementing shari’a at any level in the United States. An insight by Johannes Kandel, head of the intercultural dialogue group at the German Friedrich Ebert Foundation, bears directly on the question of feasibility of implementing shari’a in the U.S.: “giving preferential treatment to groups violates the principle of equal treatment in a secular legal system” (“Paving”, 2007). With regard to the debate over introducing shari’a in the U.S., Irshad Abdal-Haqq and Qadir Abdal-Haqq wrote an article entitled “Community-Based Arbitration as a Vehicle for Implementing Islamic Law in the United States”, in which they argue that due to the increasing population of Muslims in the U.S. and the “inability” of the U.S. legal system to address Islamic legal issues, shari’a should be implemented in the form of ADR (Alternative Dispute Resolution), which includes arbitration, mediation, negotiation, mini-trial and summary jury trial (Haqq, 62-63, 72). In short, what Haqq and Haqq call for is an “alternative judicial system for certain types of Islamic concerns” (Haqq, 63). The two main vehicles discussed in this article are arbitration – a form of adjudication whereby a dispute is presented to one or more “impartial” persons who are authorized to issue binding decisions, and mediation – a form of ‘consulting’ in which the one to whom the dispute is submitted advises and consults in an attempt to help the parties reach a solution, though the mediator has no power to deliver binding decisions (Haqq, 64, 67). There are many arguments to be made against the concept of a separate Islamic legal system operating within the U.S. legal framework, even if it is only in the form of arbitration or mediation, too many to discuss at length in this paper, however several points should be made. First, if a non U.S.-based law such as shari’a is allowed to rule in arbitration/mediation proceedings, there is the possibility that, if one or both parties to the dispute were forced or intimidated into accepting shari’a arbitration/mediation, they might be denied protections available in proceedings based on U.S. legal precedents. Secondly, were shari’a to advance beyond simple arbitration/mediation, such a separate legal system would undermine the supremacy of the U.S. constitution in the territory of the U.S. and would imply that the constitutional framework is not appropriate for application to all U.S. citizens. Thirdly, such an alternate legal system would be a slippery slope as has been demonstrated in Germany, a slope in which liberal judges in the U.S. might one day subvert constitutional protections in favor of the “greater need” for sensitivity to Islamic legal traditions. Fourth, should shari’a be implemented in the U.S. in even a nascent form, there exists the very real possibility that unequal justice would be applied to U.S. citizens depending on their cultural affiliation, as is happening in Germany with honor killings. For instance, a Muslim charged with an honor killing in the U.S. might face manslaughter charges whereas a non-Muslim U.S. citizen in similar circumstance might face the death penalty, or law enforcement might be required to enforce a U.S. legal ruling based on shari’a – perhaps returning a runaway wife to her abusive Muslim husband. Finally, if shari’a is allowed to make the same inroads in the U.S. as has happened elsewhere, it will set a precedent which will open the door for other religions to demand similar treatment, which would certainly produce judicial chaos.
Beyond personal and family law, shari’a is making headway in European and American financial investment portfolios. Shari’a-compliant finance, also known as “Islamic finance” or “Islamic banking” involves assembling investment packages for Muslims that do not include any involvement in interest payments, speculation, or investments related to pork, tobacco, or alcohol, all of which are prohibited in Islam (Winn, 2008). As of 2006, Islamic financial institutions which cater to the investment sensitivities of those Muslims who follow shari’a guidelines for investments boasted investment funds in excess of U.S. $300 billion (“Deutsche”, 2006). In early 2006, Deutsche Bank made available a number of shari’a compliant mutual funds – “Noor Islamic Funds” – for investors in the UAE and Bahrain, with plans to expand this offering to investors in Asia and Europe in 2007 (“Deutsche”, 2006). Interestingly, by the time of this offering, the Swiss UBS, British HSBC, and the U.S. Citigroup financial institutions already had “halal” financial offerings (“Deutsche”, 2006). Such investments are not without their critics; Frank Gaffney, former assistant Secretary of Defense under Ronald Reagan and president of the Center for Security Policy, stated that this type of finance represents a “soft jihad” against Western financial interests, and U.S. entities which engage in shari’a compliant financing are making themselves vulnerable to “civil and criminal liability” (Winn, 2008).
In conclusion, while the arguments for shari’a to be implemented in the U.S. via arbitration and mediation may sound reasonable, the ramifications of such a concession are far reaching. The arguments against such an alternate form of justice operating in the United States are not based on mere theory, but rather on observations made of the German legal environment and resulting controversy. What began as a well-intentioned olive branch to the Muslim community of Germany has produced at times legal double standards and chaos. Thus it would be imprudent, given the failure to find a reasonable balance between German constitutional protections and judicial discretion in rendering legal decisions based on shari’a, to permit the U.S. legal system to cite any foreign legal precedent, shari’a included. All U.S. citizens and residents are guaranteed the protections of the U.S. constitution, and to allow the Muslim community (or any other religious community) in the U.S. to enforce a non U.S.-based legal system on its members would lead to anarchy and miscarriages of justice as defined by the U.S. constitutional framework.
List of Works Cited
“Deutsche Bank Launches Shariah Compatible Funds,” Spiegel Online International, 12 December 2006. 23 April 23, 2008 .
Goodenough, Patrick. “Give Us Shari’a, UK Muslim Leaders Tell Gov’t,” CNSNews.com, 16 August 2006. 23 April 23, 2008 .
“Paving the Way for a Muslim Parallel Society,” Spiegel Online International, 29 March 2007. 23 April 23, 2008 .
Rohe, Mathias. “Application of Shari’a Rules in Europe – Scope and Limits,” Die Welt des Islams 44. no. 3 (2004): 323-350.
Rohe, Mathias. “Islamic Law in German Courts,” Hawwa 1. no. 1 (2003): 46-59.
Trifkovic, Srdja. “Sharia Comes to Germany.” Chroniclesmagazine.org, 26 March 2007. 23 April 2008 .
Winn, Pete. “Shari’a-Compliant Financing Described As New Islamist Threat.” CNSNews.com 21 April 2008. 23 April 2008 .