Shari'a and Europe (original) (raw)
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1. Introduction: investigating the role of sharia in national law
Sharia Incorporated
Ideological-religious currents and discourses The moderate-puritan dichotomy and beyond Major discourses about incorporation of sharia 1.6 Towards a realistic history of sharia and national law Selecting turning points and historical periods The millennium of sharia as the living law (c. 800-c. 1800) 1.7 A voyage around the Muslim world Notes Bibliography 1.1 Theme, purpose, and approach What this book is about This collaborative study intends in the first place to explore the incorporation of sharia-based 1 rules in national legal systems. It tries to answer pertinent questions about islamisation of law throughout the Muslim world: Where? When? To what extent? How? Why? The fact that since the 1970s a number of Muslim countries, notably Iran, Pakistan and Sudan, have followed this course has been a cause for concern, both in Muslim countries and in the West. It has suggested a sidelining of modernising groups, weakening of the legal positions of women and religious minorities, and a return to cruel corporal punishments. One can hardly avoid the impression that islamisation of law equals disrespect for the rule of law and human rights. Yet, the discussion about these developments is hardly based on actual facts; rather, it is filled with controversy, speculation and all sorts of prejudices. This book provides a factual and comparative overview of the role and position of sharia-based law in the national legal systems of twelve, representative Muslim countries. Each country study consists of two interrelated parts. The first part of each chapter describes the history of how the present legal systems of Muslim countries have been shaped by socio-political developments. It records major changes in governance and law, tracing in particular the role of Islam and sharia in this process. The second part presents the actual legal situation and shows to what extent national legal systems have or have not distanced themselves from the tenets of 'classical sharia' (see 1.2 below); these sections also address the compatibility of these systems with the rule of law and human rights (see 1.4 below). The country studies focus on those areas of national law, where the introduction of sharia has caused most concern, namely constitutional law, family and inheritance law, and criminal law. Purpose and perspectives This book does not only offer a wealth of data, it also employs a set of conceptual perspectives, or frames, in order to forge the data into a useful body of knowledge. Through our first frame, we look at a particular country and its national legal system, for we can only start to understand the relationship between sharia and national law by looking at countries individually. Therefore this book is in the first place a repository of country-based knowledge. In addition, this frame also serves as a tool to gain insight into the broader picture of 'the Muslim world'. The first frame is
2. Rethinking Islamic law for Europe
Imams in Western Europe, 2018
The fiqh al-aqalliyāt ('Islamic law for Muslim minorities') is based on the problematic concept of living outside the 'Land of Islam'. This chapter offers a brief survey of the criteria for a land to be judged a 'Land of Islam'. It is shown that the basic criteria are the freedom and security for Muslims to practice the basic sha c ā'ir al-islām ('Islamic rules') and to serve al-c adl ('the cause of justice'). Ironically, a general assessment of many Western and Eastern Muslim-minority countries according to these criteria gives them a relatively high score on the 'Land of Islam' scale.
Journal of Religion in Europe, 2016
Applying Sharia in the West is a collection of 13 articles by various scholars, with an introduction by the editor, Maurits S. Berger. The objective is to take the discussion of Sharia in the West further by looking not just at legal theory but also at actual practice, at what Muslims really do with the Sharia in Western social and legal contexts. Three widely noted surveys have reported that many or even most Western Muslims want Sharia, but none of these surveys asked what exactly was meant by "Sharia," what exactly it was that these Muslims wanted. As Berger says, at one extreme Sharia may mean something very abstract, rather like "justice." At another extreme, it may mean a detailed legal system similar to that found in Saudi Arabia. In practice, as this book shows, although a few Muslims undoubtedly do want to transform Europe into Saudi Arabia, they are a small minority. Sharia on the Saudi Arabian model is more a concern of Western non-Muslim publics, politicians and debaters than of Western Muslims. The aspects of the Sharia that matter in a Western context are primarily those relating to worship, to family law, and to finance. Aspects of the Sharia governing worship are relevant for very many Muslims in the West and are generally not controversial, as Western legal systems do not normally cover prayer and fasting, though issues may arise when it comes to burials and, recently, clothing (veils and so-called burqas). Aspects of the Sharia governing finance are relevant to some Muslims in the West, and are also generally not controversial, because Western states are usually very happy to make whatever legal adjustments are necessary to facilitate their banks' participation in the global "Islamic finance" industry. Finance Sharia appears as "good Sharia," welcomed for its economic benefits. The area where problems arise is family law. Most Muslims in the West marry, most inherit, and some divorce. Many Muslims in the West are concerned to follow the relevant Sharia rules, for example concerning mahr (dower and/or postnuptial maintenance). This may cause problems. Some Western states have laws that grant "civil" (state) marriage ceremonies precedence over religious ones, whether Roman Catholic, Jewish or Islamic, and such laws can give rise to conflicts. All Western states have laws that grant "civil" divorces, but most do not have laws that oblige parties to a civil divorce to carry out a matching religious divorce. This can result in what are called "limping marriages" with "chained wives," who are divorced according to the civil law but unable to remarry under their own religious law, which does not regard them as divorced. This can be a
Electronic Journal of Middle Eastern Law (EJIMEL), 1(6):115-159
Prepared for a conference on current developments in Islamic Family Law, this paper takes the opportunity to compare and contrast the meaning of ‘law’ in general, and ‘family law’ in particular in the classical Shari’a tradition with the premises which currently underpin contemporary forms of post-enlightment European Family Law. Having done so, it goes on to explore the way in which the institutions of the Shari’a have been comprehensively remoulded (if not yet entirely wholly eliminated) in the course of confrontations with the impact of ‘progressive’ impact of hegemonic European ideological assumptions, no less in colonial, post-colonial and diasporic contexts.
Review - A Continuity of Sharia
Journal Of Islamic Studies, 2024
Brian Wright's study is the latest to enter the debate over the fate of what is broadly termed Islamic law in the modern world. Against a consensus exemplified best in the works of Wael Hallaq (though including Rudolph Peters, Radhika Singha and others) that the Western-based legal systems successfully superseded the premodern world of sharia, a growing body of work has pushed back, arguing various points such as that codification can be found within the Islamic tradition or that during the nineteenth century the ulema worked with the state rather than against it in the project of developing new codes merging Islamic and Western law, usually French - so sharia, broadly defined, never really went away.
European Journal of Law Reform (EJLR): Special Issue on Islamic Law
European Journal of Law Reform
The present preview is based on the final set of proofs of the EJLR Special Issue on Islamic Law. The page numbers will still change, starting with page 207, since issue 1 of 2014 had 206 pp. Otherwise, some minor spelling and formatting errors need to be corrected before we go to print. The preview contains the ToC, the editorials, the first pages with the abstracts of each article, the entire catalog of human rights in Islamic law included in Professor Mattar's article, and the entire set of book reviews. The full and final text of the Special Issue cannot be distributed here for free because of copyright ownership. However, I will post the final ToC as soon as the issue goes to print. Please contact Eleven International Publishing to purchase the issue and/or a subscription to the European Journal of Law Reform.
The growing numbers of Muslims in the West have ignited a debate about the compatibility of Sharī'a with state law. The present article explores the issue from a historical perspective by providing a brief survey of Islamic legal history. It specifically focuses on the interaction of Sharī'a with the English legal system in colonial India. The main argument of the article is that during its long history, Sharī'a co-existed with the ruler's law (siyāsa) and customary law ('urf). It was formally incorporated into the structure of the state with the active participation of Muslim legal commentators, judges, lawyers, politicians, and the'ulamā' in colonial India. The incorporation of Sharī'a into the state law was facilitated through the transplantation of legislative and hierarchical judicial institutions, which provided venues for a legal discourse among various stakeholders. Historical evidence suggests the feasibility of incorporating Sharī'a into state law in Western democratic countries. Keywords Sharī'a – state law – custom – English legal system – Anglo-Muhammadan Law
THE APPLICATION OF SHARIAH (ISLAMIC LAW) IN SOME DIFFERENT COUNTRIES AND ITS IMPLICATIONS
This paper will explore the meaning of Shariah and examines its application in specified countries around the world. The implications of the application on the development of Shariah will also be discussed by collating the writings of various scholars on the subject in the contemporary world. This paper will show that Shariah does not need formal legal recognition to be applied, as in the example of Australia where there is a Muslim-minority and there is no formal Islamic law. Other examples include the application of Shariah in Aceh and Singapore, which showcase a dynamic relationship between Islamic law and civil rulings. Shariah is supremely malleable and adaptable to many different situations and continues to evolve. By and large, the development of Shariah in non-Muslim states has shown that Muslims are readily able to comply with the laws of the land, while accommodating generally the various demands of religious legal obligations.
A Room for Sharia in European Constitutions
Multiculturalist ideology, i.e. the tolerance of any culture or tradition, will both solve the identity crisis in Europe and pave a road for positive development of Islamic perception in Europe. For the case of Islam, it means making a room for Sharia which has the risk of conflict with European constitutions. An interesting thing is taking place in Denmark, a country which is at the forefront of multi-culturality. The SIAD Party has recently been founded and it proposes the following: anyone who cites Koranic verses contrary to the Danish constitution must be punished because the constitution is superior to all other laws. The most representative association of British Muslims, the Muslim Council of Great Britain, has asked that Muslims be recognized the right to apply Islamic morals in state schools. On February 21, 2007, it published a document and presented it to the government in the name of 400,000 Muslim students attending the country’s state schools. They ask that the government accept the demands of Muslim parents and youngster on the grounds of faith concerns, among others, they say that female students “have the right to wear headscarves or the hijab”. All this is a clear signal that people are beginning to reflect on the possible contrast that exists between the constitutions of European countries and certain laws of the Koran In our paper we discuss the possibility of amendments in European constitutions to prevent a big social conflict in near future.