Islamic Traditions in the EU Law - Essay Example

? Introduction The connection between Western Europe and Islam has for extended periods been connected to political and religious antagonism. In times of war or peace, the connection between Western Europe and Islam was evidently given that, till the collapse of the Ottoman Empire, Islam held an un-parallel challenge to Western Europe, which had some noticeable impact on some areas of law in Europe. The EU constantly underscores commitment to establishing a cosmopolitan European identity.1 Depending on the source, there are about 12-15 million Muslims living within the member states of the European Union and this number is anticipated to rise to 23 million by the year 2015. Muslims of Europe have fashioned a life-style and understanding of religion that can be labelled as European Islam that is diverse from that of their country of origin.2 As a result, the Muslim community within Western Europe is increasingly considered as “European community,” transnational in nature and connected by a common religion labelled as “Euro-Islam” by both scholars and policy makers. The notion of Euro-Islam outlines a liberal variety of Islam that is embraced by both Muslim migrants and to European societies and encompasses the same religion of Islam, but culturally modified to encompass European ideas of secularity and individual citizenship in line with the contemporary notions of modernity, as well as a comprehending of tolerance that surpasses the Islamic tolerance. Recent events within Europe have pushed Shari’a (Islamic law) to the centre of media attention and debate. Right from the assassination of Theo van Gogh in 2004 to the controversial endorsement of Sharia law by Archbishop of Canterbury, Rowan Williams in 2008, the proceedings have sparked both harsh criticism and solid support of the internalization of Islam within European law and society at large. The politicization of Sharia law has generated discrepancies in these debates yielding to storm over initially embraced aspects on Islamic law while obscuring Islamic traditions that bear the potential to reconcile Sharia and western norms.3 Background Globalization and migration have served to render European societies multicultural to an unprecedented extent since 1945, and has increasingly heralded multicultural life into the court rooms and administrative institutions. In Western European countries, today, a considerable part of the population is Muslim. Since the 1950s, Muslim minorities have steadily emerged in Europe as a result of decolonization, labour migration, conflict, and civil strife within their home countries. Majority of the of Muslim population entered Europe as asylum seekers owing to conflict at home countries while others came to Europe in pursuit of a higher standard of living.4 As a result, Islam had become public within Europe and over 15 million immigrants originating from Muslim-majority countries have settled within European nations over the period. This has necessitated a shift in discourse in identifying these groups, initially as migrant labourers, ethnic minorities, and eventually as a religious community.5 Islam has adapted to diverse times and places yielding to various forms of religiosity. The adaptation of Muslim religiosity within Europe has been addressed by diverse scholars as encompassing a shift from “Islam in Europe.” Majority has addressed the reinterpretation of Islam as arising from the changing concerns and needs of young Muslims; the decline in religious authority; and, the introduction of secular, liberal democracy among European states. There is a growing agreement that Islam is gradually becoming “European,” but the major contention lies in the content and process of this Europeanization.6 The bulk of the studies on this subject centres on the normative and post-modern approaches whereby the Europeanization of Islam is perceived to arise from the individualization of religious authority among Muslims.7 Some people projects that if the present trend persists, then it is likely the individualization ultimately yield to liberalization of Islam. Tension between Sharia and European Law The immediate strain between Sharia and European law can be regarded as one of the most overlooked distinction between them, given that Sharia does not imply a certain concrete set of rules launched to govern civil society. Sharia law mainly proscribes a way of personal conduct that safeguards Muslims from straying from Islam yielding the translation of Sharia as “the way to follow.” Hence, Sharia cannot be regarded as positive law as Muslim law frequently indicate very minimal interest within civil sanctions connected to the contravention of its outlined rules. Sharia law is instituted and interpreted in diverse ways within various countries, coupled with the influence of contemporary law systems. Western countries usually perceive Sharia as incompatible with human rights, which represents one of the debated aspects of the Sharia discourse.8 Sharia law, itself, fails to award or infringe on inalienable human rights as it is more connected to responsibilities and moral duties of individuals, instead of human freedoms. In line with this debate, Muslims have advocated a broad range of opinions on rights from the affirmations that international human rights are wholly compatible with Islam to the assertion that international human rights are a result of alien western culture and mirrors values that vile to Islam. This shapes the background against which the diverse perceptions of Islamic law takes shape of which Europeans must highlight incompatibilities between Sharia and the rights of both women and non-Muslims.9 The Sharia debate also embraces the liberties to freedom of expression and religion that have, in some instances, been restricted within some Muslim states. The European Charter on Fundamental Rights overtly grants the freedom of thought, religion, conscience, and expression in articles 10 and 11.10 Existing Acceptance of Sharia in Europe Despite the incompatibilities cited, there are a number of aspects of Sharia that have already been incorporated within European national law. Sharia-compliant banking and credit sits comfortably within the society and bears the potential to become more popular among both Muslim and non-Muslim citizens. The family and financial aspects of sharia law are already presented within British and French societies. For instance, Sharia-compliant financing has increasingly gained popularity within the last decade. The European Union is gradually merging as a core centre of Islamic finance, grounded in Islamic Sharia law, and critics assert that this amounts to “financial jihad” by Islamists objective on islamifying the West. The considerable growth prospects recorded for Islamic financial services industry within numerous European countries is being propelled by Muslim immigration, and despite the difficult economic climate, Islamic banking is presently growing faster in Germany, Britain, and France relative to many Islamic countries within Asia and the Middle East. Most advocates of Islamic finance portray Islamic banking system as morally superior alternative to Western banking model.11 This model is structured around a strict code of ethics and grounded in the Koran and Islamic Sharia Law, which forbids against charging interest, risk of uncertainty, and/or investing in prohibited products and activities. The UK was the pioneer among the EU member states to authorize Islamic banking. Since then, the UK has steadily expanded banking options for Muslim residents yielding to Sharia-compliant Master Card that is prepaid. The pioneer Sharia court within the UK referred to as Muslim Arbitration Tribunal was launched in 2007, and since its inception, the court has settled over 100 civil disputes inclusive of those detailing inheritance arguments, neighbourhood disagreements, and divorce recommendations.12 The Sharia law courts established in the UK have sometimes issued rulings that would be considered to contradict UK’s common law, as well as EU laws. In 2011, UK Muslims started demanding that the Sharia replace UK’s common law and be rendered the only law applicable in towns with significant Muslim populations. Legal Pluralism Among Muslim immigrants, a number of normative systems are at work within diverse situations partially depending on whether or not they have gained a European nationality. First, a conflict of laws can be perceived to arise where European court nay have to employ the laws of the Muslim country in question. This can be perceived as a circumstance of formal or “weak” legal pluralism.13 Legal pluralism in this case, delineates a situation in which the dominant legal system “commands diverse bodies for diverse groups within the population.” The conflict manifests in the laws obliges the court to select among the numerous normative systems. Such situations generate fresh questions regarding the capability of the judiciary to accommodate concepts and institutions that are foreign to, and sometimes opposed to the national law of the European country.14 The present context of legal pluralism within the European legal system perceives gender justice as a matter of gender equality to an enhanced extent than the Muslim laws in question. A national legal system is frequently perceived as uniform, monolithic, and exclusive detailing a solitary legal system that is perceived as the only set of legal rules regulating the population’s behaviour. This perception is challenged by theories of legal pluralism, which denotes that every culture encompasses norms of behaviour, status that differ in strength and degree of uniformity. Cultural norms are frequently perceived as conflicting with gender equality norm.15 The core focus of such cases centres on state’s duty to avail gender justice between individuals as outlined in the Convention on the Elimination of All Forms of Discrimination Against Women (1979) articles 2 and 3. The CEDAW article 16 obliges the state to “take all necessary measures to eradicate discrimination against women in all matters centring on marriage and family relation and guarantee equal responsibilities and rights at marriage, as well as its dissolution. Islamic law and Western civil Law The debate on the function of Islamic law within European context takes on an entirely different position that is frequently overlooked. For instance, the European political culture is grounded on democratic constitutionalism and, thus, the debate on the function of Islamic law within European society fails to centre on constitutional issues.16 A number of respected bodies have concluded that Sharia law is incompatible with accepted standards of human rights. In 2003 and 2004, the court (European Court of Human rights) stipulated that Sharia law is unsuited with the fundamental principles of democracy since the Sharia rules centring on inheritance, religious freedom and women rights infringe human rights as outlined by the ECHR.17 The House of Lords also drew a dark attention to the divergence between Sharia and UK law citing Islamic legal code as “completely incompatible” with human rights legislation. These remarks arose as the Lords considered the case of a woman who, if she were to be sent back to Lebanon, then the subject would be obligated as per Sharia law to hand over custody of her 12-year-old son to a man who occasionally beat her and attempted to kill her. Previously, it was always argued that democratically-determined and human rights compliant national and community always override religious law such as Sharia; nevertheless, this seemingly cardinal principle is being challenged in a number of ways: (a) women frequently are corralled into sharia courts in which they sometimes receive less fair treatment compared to the civil equivalents. In one of the judgement passed by the House of Lords, the judges cited Sharia as “arbitrary and discriminatory.”18 Presently, courts are beginning to allow what they perceive religious and cultural norms to influence decisions. This appears as a dominant problem in Germany, Norway, Denmark, and Norway in which courts have tended to reverse such decisions. In the UK arbitration is frequently employed or exploited to award Sharia close to full legal status.19 The state allows religious groups the freedom to decide on family issues in cases such as child custody, which may prevail over the rights of subjects concerned. Some of the examples of women’s rights have been ignored entail: domestic violence, equal division of estates, and custody of children, maintenance, and equal division of estates.20 The conventional solutions availed by private international law rules are too concise to accommodate the intricacies involved. The question detailing whether there is a right to cultural identity within a family-law context details one that EU is predisposed to take seriously given that there are critical human rights aspects to cultural and religious identity, and such aspects bear a sound normative foundation within the constitutions of European countries, as well as international law.21 Some of the elements of cultural and religious identity are safeguarded by international provisions such as article 8 (par 1, sec c and article 30) of the Convention on the Rights of the Child; however, unlike the right to religious freedom, cultural identity cannot be perceived as the sole content of a specific human right.22 It is essential to note that human rights apply universally, and their pre-eminence cannot be qualified by citing culture and culturally-based practices. Any analysis of Turkey-EU relations brings up the element of religion, which is seen as more of an obstructive item and a significant difference between the two entities. Most critics in the EU assert that Turkey’s accession to the European Union would incorporate a huge Muslim population into the EU, and this is likely to harm the European identity.23 The contention emanates from the fact that the majority of the governments do not address their needs adequately while barring them from the needed political and administrative leadership for their religious affairs. In most cases, the political organization of EU fail to cover the deficiency of political and religious institutions and, as a result, EU institutions fail to respond to any of the demands presented by the close to 20 million Muslims living in the EU.24 The march towards internalization of Islam into the EU has been blighted by a rise in radical Muslims, who have launched propaganda and intimidation campaign directed at transforming the countries or regions into an “Islamic states” or emirates ruled by Islamic Sharia law. This has been heightened by cases of forced marriages, polygamy or bigamy, and female genital mutilation. Similarly, the rising Muslim population has presented additional challenge to Europe’s family-law codes, which necessitates modification to accommodate alien concepts and understandings of what comprises a family. Varying concepts of family law have occasionally inflamed the whole debate on such critical issues as human rights, progress, equality, universality, identity, and secularization. Conclusion Recently, the inclusiveness and accommodation of minorities, as well as their special needs or claims has been a critical concern for the EU. The core question in this debate has been how much of the cultural diversity can be accommodated within secular and liberal democracies. As Europe’s culture becomes increasingly secularized, the biggest point of controversy regarding Islam in Europe centres on striking a balance between the sacred and the profane. As such, both EU and the Europe Muslims can be regarded as locked in a process of defining their identity. This debate is particularly alive and felt most gender issues manifest, which constitutes a challenge for Europe in its endeavours to internalize Islam. There have been suggestions detailing that Europe is confused when it comes to coping with Islam. EU can be considered as lacking a concise policy on how to deal with internalization of Islam within Europe. EU policies can be considered as largely ambivalent given that, while EU policy statements implies inclusiveness to dialogue, the actual policies have largely tended to be the opposite. The EU has largely maintained an “arm’s length” engagement in matters relating to internalization of Islam within the EU. This has attracted critics who have cited “widespread discrimination” against Muslims across Europe. Critics cites laws such as banning Muslim veils in public spaces as fostering a climate of hostility and suspicion against certain people perceived as Muslim. Discrimination against Muslims in Europe is fuelled by stereotypes and negative perceptions and calls on European politicians to take up a “more rational approach,” and cease depicting Islam “as a system of values that disallow gender equality or a violent ideology.” Bibliography A Az?ma, Islam in Europe: diversity, identity and influence, Cambridge University Press, Cambridge, 2007, pp.176. A Biondi, and P Eeckhout, EU Law after Lisbon, OUP Oxford, Oxford, 2012, pp.140-141. A Carkoglu and B Rubin, Turkey and the European Union: Domestic politics, economic i9ntegration and the internsational dynamics, Frank Cass, London, 2003, pp.24. C Mallat, Islamic family law: [proceedings of a conference convened by the Centre of Islamic and Middle East law ..., University of London, in May 1989], Graham & Trotman, London, 1993, pp.13. C Mccrea, (2010). Religion and the public order of the European Union, Oxford University Press, Corby, 2010, Pp.4-5. 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