Why can't Europe accept Sharia law?
Sharia law in Europe?
In recent years, various actors in various western countries have repeatedly asked for parts of Sharia law to be included in the private and civil law of European legal systems. Islamic associations occasionally go public with this idea. But not only some Muslims can get used to this idea. A number of Western politicians also made people sit up and take notice, allowing Sharia law, for example, in private law disputes. Probably the greatest sensation was caused by the Anglican Archbishop of Canterbury, Rowan Williams, who proposed in 2008 that parts of Sharia law should be included in British civil justice because, in his opinion, parts of society did not identify with Western law. However, this justification amounts to a declaration of surrender by the constitutional state. In October of the same year, the Bavarian FDP member of the state parliament, Georg Barfuß, spoke up with the demand: "Where the Sharia is compatible with the Basic Law, it should be allowed."
Is the Sharia compatible with the European constitutions and human rights?
Those parts of Sharia law that do not affect any legal area in the modern sense and do not interfere with the rights of others are generally compatible with European law, if not even protected by the human rights enshrined in the constitution. First of all, this affects the entire area of rite and the practice of faith. Whoever prays, fasts, donates and makes pilgrimages according to Sharia law is protected by the right to religious freedom in all of these acts. Those who do not want to eat pork or drink alcohol do not need to do so - and this is crucial - regardless of whether this waiver is required by a religious law, considered to be correct because of a political attitude or simply because of a personal quirk . Eating according to Sharia law is allowed, as is a vegan diet. As an expression of personal lifestyle, it is neither of concern to the state nor to society. Nor is anyone legally compelled to shake hands with someone of the opposite sex. At best, he or she would be violating the rules of politeness of another culture, but nobody is forced to be polite. In short: Actions that are not expressly forbidden are allowed, regardless of the motives of the person acting. The law does not care about the motive that leads to a permitted action. Any religious motivation is only relevant for the acting person himself.
Beyond this area, there are legally relevant acts derived from Sharia law that are also compatible with European law. An example here would be Islamic banking, which is covered by the right to freely conclude a contract. Contracts concluded between two or more parties are valid if they do not violate certain laws or what are known as good morals. Here, too, the law does not care about the religious justification behind the contracts.
We are dealing with a completely different case when sharia legal provisions directly affect our legal system and contradict it, and indeed not because of the cruel corporal punishment that is often mentioned. The introduction of parallel legal structures, i.e. a legal pluralism, would destroy the foundation of our legal system, because it would violate two principles of a democratic legal system based on human rights:
1. All people are equal before the law.
2. The same law applies in the same cases.
These principles result directly from the human rights framework of European legal systems, which prohibits unequal treatment based on gender, ethnic or religious affiliation, etc. Such unequal treatment, however, would be the case if Muslims would, for example, be treated according to Sharia law in family law. Before the law everyone would no longer be the same, the legal status of a person would depend on their religion. This is commonly called special law. And such is by definition exclusive, regardless of whether it is endorsed or rejected by those concerned. Special law excludes and divides society into arbitrarily defined components. By its very nature, special rights are collectivist; they relate to groups and not to individuals, and, as history has shown, can be used in extreme cases to exclude entire groups from society. In addition, the question arises as to who should the special law apply to?
In response to the demand mentioned at the beginning, that the Sharia should be permitted wherever it is compatible with the constitution, human rights and the laws, the following can be summarized as follows: Everywhere where the Sharia is compatible with the constitution, it is allowed without this specially mentioned or cast into laws. Should this demand be intended to include sharia law provisions in European legislation as a special right for Muslims, then it contradicts itself, because that would not be possible without a violation of the constitution.
The case of Canada
In 2005, in the Canadian province of Ontario, discussions were held to introduce Islamic arbitration tribunals in addition to the existing Christian and Jewish arbitration tribunals for family law matters. It was primarily Muslims living there, and in particular Muslim women, who took to the streets against this plan and asked: Who must bring their affairs to these courts? All Canadian Muslims or those who specifically want it? And how does the state intend to protect those who are forced by social pressure or worse to turn to these arbitration tribunals and accept their decisions? Although the draft provided for a higher-level state appellate body, the weakest members of a religious community would hardly have been able to contest decisions of the Sharia court against the will of their community and family, while the state participates directly in the system of parallel jurisdiction through an appeals body would.
Another particular problem with the approval of religious parallel justice is that it inevitably involves state support for internal hierarchies and power structures in religious organizations, which as a rule benefit the most conservative parts of a religious community that insist on religious identity and segregation would come. After all, it would be ultimately they who head these courts, since it is they who are calling for them to be introduced. Compared to exclusive special law, modern European law is inclusive: everyone is equal before the law. The only effective protection against unequal treatment of people because of their religion is to avoid parallel justice. And so it finally happened: The Ontario government decided to abolish all forms of religious arbitration.
→ continue to: Excursus: International Private Law (IPR)
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