Sharia Courts in Western Democracies? – An Interview with Manfred Brocker
Professor Brocker, in some Western countries the Islamic legal system of sharia is practiced supplementary to their own laws. What does the application of Islamic law in the West look like in practice, and what is its legal basis?
Sharia contains not only legal but also religious rules. Every good Muslim will try to observe the latter. The legal regulations of sharia, on the other hand, can find application only where an appropriate statutory or contractual basis for this exists. For example, in Great Britain where non-state arbitration – for instance, in inheritance disputes – is allowed according to the “Arbitration Act”. Thus if all parties to a dispute want to appeal to a “Muslim arbitration tribunal”, which will solve the conflict in accordance with the rules of sharia, they can. In Germany this can’t be done, though it has been conjectured that here too secretly convened “sharia courts” deliver verdicts. These have no formal legal force, but are viewed by parts of the Muslim community as valid.
Can sharia courts really usefully settle conflicts? Are they suitable as a “supplement” to German law?
When the case concerns strictly devout Muslims, who both accept Islamic law as the basis for dispute settlement, or at any rate this rather than the laws of the secular state, then it can be. It should be noted, however, that marriages made under Islamic law can be dissolved only by the husband in a unilateral declaration, but by the wife only by appeal to a religious court. Without the decision of such a court, she would continue to be regarded in the community as married and could not enter into a new marriage. It’s hard to imagine this as a “supplement” to German law. In Islamic law there are many places that accept the unequal treatment of men and women and so violate the German Basic Law’s principle of equality.
Sharia in the context of International Private Law
Does the state do enough to prohibit the illegal practice of sharia courts?
As a matter of fact several provisions of sharia are contrary to the Basic Law’s principle of equality; for example, that sons receive twice as much more of the inheritance than do daughters; that the husband invariably gets custody of all the children after a certain age, regardless of the circumstances of the divorce or separation; that in legal disputes or before the court only the testimony of two woman is equal to that of one man. If similar cases come before a German court, all this is meaningless, because here only German law is valid, at least for German citizens. In Germany, sharia courts are outside the legal system; their “verdicts” are without legal force. If the parties to a conflict live in Germany, but are not German citizens, then the following can happen: if the civil law of their home state is based on sharia, then conditions instituted under sharia law continue to be valid for them even after a move to Germany! Under the so-called International Private Law, a German civil court is obliged, paradoxically, to apply sharia.
Does this actually occur often?
Far more often than you might think. Many Muslims in Germany do not have German citizenship. It demands a great deal of tact in German judges to understand and apply the national law of those concerned without at the same time coming into contradiction with the “ordre public”, that is, the German legal system and its principles. This requires a lot of time and energy. Here the legislature should take action and make the obtaining law dependent not on citizenship but on the steady place of residence: for example, whoever has lived in Germany for ten years should be subject to German law alone
Recognize differences, but prevent splits
In following this practice, is the German state committing an error, perhaps even undermining its own principles?
The regulations of International Private Law were created particularly for trade. Here the principle of the “equality of all legal systems” makes sense. But there are cases in which compatibility with the German “ordre public” must be examined very critically, because even decisions made by German courts about International Private Law may not contradict the principles of the German legal system. We can’t simply say we won’t interpret the rights of a woman too exactly because she isn’t a German citizen. That won’t do.
The Canadian political scientist and philosopher Charles Taylor has argued that the recognition of difference – even of the plurality of various legal norms, including the application of sharia in Western democracies – strengthens a community. Do you agree?
To my knowledge, Taylor has never spoken in favor of sharia courts in Canada. The reason is his idea of “multi-culturalism”: recognize differences, yes, but prevent splits. The meaning of the “recognition of difference” is to integrate everyone into the community, to enable republican solidarity and patriotism. This can hardly be achieved with completely different legal systems.
Manfred Brocker: “Scharia-Gerichte in westlichen in westlichen Demokratien. Eine Betrachtung aus Sicht der Politischen Philosophie” (Scharia Courts in Western Democracies. A Look from the Perspective of Political Philosophy), in: Zeitschrift für Politik, ISSN 0044-3360, No. 3/2012 (September), S. 314–331.
conducted the interview. He works as a freelance journalist, translator and editor for West German Radio in Cologne.
Translation: Jonathan Uhlaner
Copyright: Goethe-Institut e. V., Internet-Redaktion
Any questions about this article? Please write to us!