How much Shariah is compatible with Western law?

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.

In the end, the Austrian judges found that the rule to only pay alimony for a three month period was not in violation of fundamental rights of the Austrian law codex as cases exist in Austria of no alimony being paid. Therefore, in the name of the people, the court ruled in favor of the Saudi man.

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