Deutsche Welle, 22 November 2012
Many
Muslims in Europe live their private lives according to Shariah law. And many
demand that Western courts should take Islamic law into account when making a
decision concerning a Muslim citizen.
After they
got divorced, a Saudi man didn't want to pay alimony for his Austrian wife. In
a Vienna court he quoted the legal situation in his home country to back up his
argument. The pair married in Saudi Arabia and Saudi law, which is based on
Shariah or Islamic law, is quite clear on the issue: if there's a divorce, a
woman only stands to receive alimony for three months and in exceptional cases
even a single one-off payment can be enough.
Civil
courts across Europe have the option of taking the legal system of the home
country of those in court into account. Especially in cases of bi-national
marriages this principle can be applied. The Saudi man argued that as he is
from a country where Shariah is the official law, the same law should be
applied in the European country, in his case Austria, as well.
No Shariah
in schools
 |
| Can young Muslim girls be forced to wear headscarves to school? |
But it
isn't easy to answer the question as to how much of Shariah law can be
integrated into the European legal systems. One reason here certainly is the
fact that there is no one institution or authority that could interpret the
basic tenets of Islamic law and could thereby make possible a comparison with
European law. Organizations could, therefore, use this gap to push their own
interpretation of Shariah law.
When
Germany was debating whether to allow the wearing of a headscarf at German
schools, a working group of the German Islam Conference decided that a
headscarf could not be banned by schools. For German sociologist of Turkish
origin Necla Kelec, who herself was a long-time member of the Conference, this
equated to a recommendation to introduce Shariah law to German schools - an
idea which she rejects.
"To
send a 14-year-old girl to a German school wearing a headscarf for me has
nothing to do with freedom of religion nor with the parents' rights to educate
their children," Kelec said. "It is a violation of the German basic
law which guarantees human dignity, and it also violates the ban on
discrimination."
A violation
of democratic rights
In most
cases when there's a clash between Western and Shariah law, it is over family
matters, said historian Heiko Henisch of the Ludwig-Boltzmann Institute of
Historical Sociology in Vienna. Can a father force his 14-year-old daughter to
wear a headscarf to school? Does a husband have to pay alimony after a divorce?
If courts would look to Shariah law for those questions, it would create a
parallel legal system for Muslims and grant them separate rights. This would
not end well, warned Henisch.
 |
| There's no single authority on how to interpret Shariah law |
"Special
rights divide a society in arbitrary parts in this case on the basis on
religious groups and it does not contribute to integration. Special rights are
always taking a collective group, never an individual. And that can in extreme
cases lead to the exclusion of an entire part of a country's population,"
he said.
Henisch
also stressed that the parallel use of two legal systems was in violation of
two pillars of a democratic country: everyone is equal before the law and that
the same laws apply to cases with the same substance.
A global
value system
This fear
though is unfounded, said Mustafa Ceric, Bosnia and Herzegovina, adding that
Shariah represents a Muslim view of the world, a philosophical perspective, a
guideline for life - all of which define Muslim identity. Shariah, Ceric said,
expressed universal values, just like the Christian Ten Commandments. Legally,
this was not relevant for religious law would be applied nowhere across Europe.
"Europe
is founded on democracy. The people elect parliaments, parliaments decide on
laws, courts implement the laws. Judges don't apply religious laws or take them
as standards," Ceric said adding he believes there's too much of a Western
fear of Islam behind that debate.
In the case
of the Saudi husband, the Vienna court asked whether the Shariah was in
fundamental violation of Austrian law. A simple contradiction was not enough to
disregard the foreign law code. For that it would have to be a violation of
fundamental rights. This would for instance be the case if the right to
personal freedom or equality was being violated.
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