Friedrich Alexander Universit by liaoqinmei

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									European Laws and Muslim Specifics: A German Perspective - Mathias Rohe -
Allemagne


    A. Introduction


Muslims have been in Europe since the Middle Ages. However the presence of significant
numbers of Muslims – now estimated at between 10 million and 15 million - in western,
central, and northern Europe, is a relatively new phenomenon. Most of these Muslims have
an immigration background1, although many have been born in Europe, and an increasing
number are obtaining citizenship in the countries where they live.
In Germany at present it is estimated that there are upwards of 3 million Muslims (out of a
total population of 82 million), with nearly 1 million having German citizenship. Germany has
one of the largest Muslim populations in the European Union, with between 2 million and 5
million Muslims in France and about 1.6 million in Britain. The majority of Muslims presently
living in Germany – about 2.2 million – are of Turkish origin; since the 1960s, hundreds of
thousands of Gastarbeiter (guest workers) have immigrated to Germany, many of them
Turkish nationals, but also considerable numbers from the Balcans, from North Africa
including more than 100.000 Moroccans2 mainly living in greater Francfort and Northrhine-
Westphalia, the Middle East and other parts of the world..
The majority of the Muslims in Germany belongs to the Sunni denomination, but there are
also significant groups of Twelver-Shi‛is (particularly from Iranian, Lebanese and Iraqi origin)
which may reach 200.000 persons as well as an estimated number of 500.000 Alevis mostly
from Turkey, not to forget some 30.000 Ahmadis from Pakistan, the oldest organized Muslim
group in Germany. As everywhere in the world, their opinions and beliefs range from a very
devout attitude to a mere cultural link to Islam; Sufism is widespread especially among the
Turks.
Europe‟s burgeoning Muslim population presents a new situation for the Muslims there as
well as for the countries in which they live and for the societies of which they are a part.3
Most of these Muslims were born and grew up in Europe or at least intend to stay there
permanently. Decades ago, it was assumed that Muslims immigrating to Europe would stay
only temporarily to work or to study; however, this has not proven to be the case. Therefore,

1
          In Germany this is the usual term for people born in the country having at least one immigrant parent. It
tries to avoid the poorly fitting term “foreigner”.
2
          Cf. the data in the very informative report by the German GTZ (German Technical Cooperation
Agency), in gtz, Die marokkanische Diaspora in Deutschland, Eschborn 2007, pp. 3, 7 s.
3
          Cf. Mathias Rohe, Der Islam – Alltagskonflikte und Lösungen. Rechtliche Perspektiven, Freiburg/Br.,
2nd ed. 2001, pp. 91; for modern views cf. also Philip Lewis, Islamic Britain, London a.o., 1994, pp. 52 in
particular.

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the days of provisionary solutions for accommodating the needs of Muslims in Europe are
over. As the status and identities of more and more Muslims in European societies become
permanent, European legal orders are experiencing the need to react to this accordingly.

For example, most Muslims who immigrated to Germany initially planned to stay only for a
couple of years, either to earn money to improve their economic situations when they
returned to their home countries or to find temporary refuge until the political situations in
their home countries improved. These expectations were reflected in German legislation and
administrative agencies dealing with Muslim immigrants, and therefore, Muslim immigrants in
Germany behaved and were treated as temporary guests. Consequently neither they nor the
state showed much interest in creating sustainable legal and social conditions to facilitate
integration.
Thirty years later, things have changed. While some of the older generation of Muslim
immigrants may not have fully integrated into German society, they have compelling reasons
to stay: They are treated as strangers in their former home countries (in Turkey they are
called Almancılar); they want to be close to their children who were born in Germany and
want to stay there; and the level of medical treatment they receive in Germany is not
available in their countries of origin. With increasing numbers of Muslims in Germany
obtaining German citizenship, law and government now have to accommodate a significant
and permanent Muslim community as a part of German society.
These accommodations, however, are secular in nature; they do not concern Muslims‟
religious beliefs or their religious needs as such. The major problems that many Muslims face
in trying to integrate into European societies, as in Germany, are language difficulties, a lack
of higher education, and a comparatively high degree of unemployment. Therefore, the
debate on immigration and problems related to it on the one hand and the practice of Islam
in Europe on the other should be seen as two related but nonetheless distinct issues. While it
is true that immigration raises issues beyond labour, education, and political asylum,
including the challenges of accommodating remarkably different modes of behaviour,
identity, beliefs, and values – at the same time, prevailing perceptions of Muslims as being a
homogenous group of people characterized primarily if not solely by strong religious identity
is simply wrong. Within Muslim communities there exists social and cultural heterogeneity
that mirrors qualities of European societies over time. Further, many Muslim immigrants
appreciate the legal and social frameworks of these societies.
While European societies undoubtedly face significant problems resulting from the small but
dangerous number of Muslim extremists and larger tendencies toward anti-Western attitudes




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that may lead to self-segregation,4 many Muslims in Europe still tend to seek practical
solutions for reconciling their own religious beliefs and practices with legal and other codes
of secular European societies. Within the last few years European Muslims have also tried to
formulate theoretical statements to clarify their positions on these issues, identify possible
conflicts between legal and religious norms, and find adequate solutions for such conflicts.5
Furthermore, a considerable number of Muslims are not particularly interested in performing
religious practices, while not denying their Muslim identity as such. Others are attached to
sufi (mystic) beliefs and practices, while considering the rules of Islamic jurisprudence to be
of little importance in everyday life.

Nevertheless, an increasing number of Muslims in Europe are eager to achieve clearer
definitions of their status as European Muslims. The crucial question they face is to define
their Muslim identity – including the fulfillment of Islamic practices that are mandated by the
Sharia6 – within the framework of European legal orders. 7

At the same time, European legal orders must find ways to address the Islamic identities and
practices of the Muslims in their midst. European parliaments, courts, and other
governmental agencies are now dealing with Islam on a regular basis. In several European
countries, legislation on Islamic norms concerning clothing, ritual slaughtering of animals,
and family law practices has either been recently passed or is under consideration.
Governmental agencies must accommodate the religious and/or political sensibilities of
Muslims who apply for citizenship; courts apply foreign laws in civil matters according to the
provisions of Private International Law (PIL) on a daily basis.



    B. Secular European states and the protection of the freedom of religion


             1. The constitutional framework


As it comes to conducting Muslim life within European secular legal orders, we have to differ
between Islamic religious and legal norms. Applying religious provisions is fundamentally
different from applying legal norms, due to the fact that in most European states religious

4
        Cf. the contributions in Berlin, Senatsverwaltung für Inneres (Ed.), Islamismus, Berlin 2005.
5
        Excellent studies of present developments are presented by Wasif Shadid and Sjoerd van Koningsveld,
Religious Authorities of Muslims in the West: Their Views on Political Participation, in id. (eds.), Intercultural
Relations and Religious Authorities: Muslims in the European Union, Leuven a.o. 2003, pp. 149, and by Jacques
Waardenburg, Muslims and Others: Relations in Context, Berlin a.o. 2003, pp. 241, 308 and 336.
6
        For the different definitions of Sharia cf. Rohe, Das islamische Recht: Geschichte und Gegenwart,
München 2009, pp. 9.
7
        Cf. Rohe (Guest Ed.), Shari'a in Europe, Die Welt des Islams - International Journal for the Study of
Modern Islam vol. 44 no. 3 (2004), (Special issue).

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freedom is far reaching. European constitutions, like Art.9 of the ECHR8, guarantee that
people will not be deprived of the basic requirements for complying with the demands of
their religion. No Muslim will be prevented by the state from adhering to the „five pillars‟ of
Islam, for example. Muslims are free in building a religious infrastructure including mosques
etc. Everybody may consult renowned Muslims or Muslim institutions for advice in religious
matters9, which opens up broad space for actively practicing one‟s religion privately as well
as in public.
Religious freedom in this sense includes all kinds of religions, not only the ones of the
majority of the population or the established ones. Furthermore, according to this provision
religion is not restricted to the private sphere; it‟s manifestation in the public sphere is
protected as well. Nevertheless, there are some differences it the application between
several European countries. This is due to a different conviction how far the distance
between the state‟s activities and religions should be. France or Switzerland for example
created a strict separation between state and religion. Therefore it is not allowed for officers
to show religious symbols during their working times e.g. in schools. The strict principle of
laicism in France in accordance with the “unity of the republic” would also prevent schools to
offer halal food to pupils, because no single group whatsoever should be treated in a
separate way.
The situation in Germany is somewhat different. The most important provision to regulate
religious affairs is art. 4 sections 1 and 2 of the German Constitution.10 This article – as well
as art. 9 of the ECHR, which is less far reaching – is not limited to the private religious
conviction. It also grants the public manifestation of belief and the state is obliged to care
that this right is not unduly limited. Of course there are legal limits for rights whatsoever
including religious ones. Nobody would be allowed to threaten others on religious grounds,
to take an example.



8
          The wording is as follows:
Art. 9 – Freedom of thought, conscience and religion:
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change
his religion or belief and freedom, either alone or in community with others and in public or private, to manifest
his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or belief shall be subject only to such limitations as are prescribed by law
and are necessary in a democratic society in the interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of others.
9
          For an example cf. Rohe, The Formation of a European Shari’a, in: Malik (Ed.), Muslims in Europe,
Münster 2004, pp. 161, 173.
10
          The wording is as follows:
          Art. 4 [Freedom of faith, conscience, and creed]
     (1) Freedom of faith and conscience, and freedom to profess a religious or philosophical creed, shall be
           inviolable.
     (2) The undisturbed practice of religion shall be guaranteed.

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Furthermore, art. 3 sect. 3 of the German Constitution prescribes that no-one may be
discriminated against, or given preferential treatment, for reasons of their religious belief.
In a series of decisions the Federal Constitutional Court has confirmed that the state itself is
obligated to provide space for religious activities.11 Such constitutional protection is not
limited to individuals. To a wide extent it also applies to domestic juridical bodies (e.g.
registered societies) aiming at the cultivation or promotion of a religious belief or the
propagation of the belief of their members.12 They can therefore independently assert their
rights against the state.13 In most cases, German nationality is no prerequisite for
participation in such organizations.
These legal provisions can prove that the secular legal orders in Europe don‟t refuse religion,
they are not at all anti-religious (“lā-dīnī”) as it is often wrongly understood. To the contrary
they open a broad space for religious belief and life. It is only that the state itself has to be
neutral and is prevented from interference into religious affairs. The most important result of
this legal secularism is the equivalence of religions including the freedom not to adhere to a
religion or the freedom to change it.14 According to a unanimous understanding in Europe
this neutrality is a prerequisite of true religious freedom which cannot be dispensed with. A
prominent French Muslim accordingly calls this system to be of „positive neutrality” (i.e.
towards religions).15 Some examples16 concerning the German legal situation shall illustrate
that.
             2. Practical examples


     a) Establishment of mosques
There are an estimated number of 2.600 mosques in Germany. Most of them are established
within former industrial buildings, which were available for reasonable prices and situated
near to the living-quarters of many of the believers working in the area of factories. But
there are also around 150 examples of representative-looking mosques with minarets in
several cities, containing prayer-rooms giving space to more than 1.000 persons.17 In some
cities the call to prayer (adān) by using loud-speakers is allowed for certain prayers, e.g. the



11
    BVerfGE 41, 29, 49; M. Heckel, “Religionsunterricht fuer Muslime?”, JZ 1999, 741, 744.
12
    BVerfGE 19, 129, 132; cf. also I. von Muench, P. Kunig and B.-O. Bryde, Grundgesetz-Kommentar, 5th ed.
    Muenchen, C.H. Beck, 2000, art. 4 n. 21, 53.
13
    Cf. BVerfGE 53, 366, 387.
14
         For the intrinsic connection between full religious freedom and secularism cf. Bielefeldt, Muslime im
säkularen Rechtsstaat, Bielefeld 2003, pp. 15.
15
   Soheib Bencheikh, Marianne et le Prophète – L’Islam dans la France laïque, Paris 1998, pp. 57.
16
   For other issues, such as wearing headscarves in the Public Service cf. Selbmann, Developments in German
Case Law Regarding the Freedom of Religion, European Yearbook of Minority Issues 3 (2003/4), pp. 199, 207.
17
    Cf. Deutscher Bundestag (n. 47) p. 7.

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prayer on Friday noon.18 Nevertheless, in general Muslims abstain from demanding the
permission for using loud-speakers, which would not make much sense in a mostly non-
Muslim environment, but could cause tensions within the neighbourhood.
The construction of places of worship is privileged under the German law of construction due
to the constitutional guarantees of religious freedom. In some cases there were judicial
procedures to be initiated on the question whether minarets are allowed to be built, and
which would be their acceptable height. It is not too surprising that the well-visible erection
of minarets could cause some irritations due to the local circumstances. Some people even
consider the erection of minarets to be a symbolic attack on the predominant Christian or
occidental culture. Such suspicions are mainly formulated by right wing extremists, but in
some cases also by small Christian fundamentalist and anti-Islamic sects and also by some
Muslims opposing such projects19. This is a perfectly legitimate discussion in society, as long
as legal and societal aspects are duly distinguished. In fact, this is not always the case:
Some of the sceptics obviously plead for the suspension of the constitutional protection of
religious freedom for Muslims alone, thus demanding the violation of the constitution rather
than defending it. But so far there are no signs whatsoever that the judiciary would be ready
to diminish the far-reaching protection of all religions or to treat them unequally.
According to German law of planning and construction, the shape of places of worship has to
fit into the given surroundings, despite the generally privileged status of erecting such
buildings. Nevertheless, the Administrative Court of Appeal of Koblenz decided in a case
concerning the erection of a minaret that there is no kind of “protection of the cultural status
quo” according to the law.20 Times are changing, and as Muslims now are an important part
of inhabitants, society as a whole has to accept this fact. Notwithstanding this favourable
legal position in general, Muslims would be well advised not to enforce their rights by the aid
of the judiciary before having patiently tried to convince the public of their peaceful
intentions in building mosques and cultural centres. Having been a judge at the Court of
Appeal of Nuremberg, my experience shows that a judgement in application of the law has
to decide a given case to the sake of one of the parties, at least in part. But often it will not
lead to a true and stable “peace” between the parties involved. The party whose claim was
dismissed would often search to find a new reason for continuing the battle, which would be

18
     Cf. S. Kraft, Islamische Sakralarchitektur in Deutschland, Muenster, Lit Verlag, 2002 (LIT); C. Leggewie et
     al., Der Weg zur Moschee. Eine Handreichung fuer die Praxis, Bad Homburg, v.d.Hoehe 2002; T. Schmitt,
     Moscheen in Deutschland. Konflikte um ihre Errichtung und Nutzung, Deutsche Akademie für
     Landeskunde, Flensburg, 2003.
19
     Cf. N. Kelek, “Das Minarett ist ein Herrschaftssymbol”, FAZ 05.06.07, p. 33. For critical voices cf. Lau,
     “Necla Kelek ueber Religionsfreiheit und Moscheebau” available under
     http://www.blog.zeit.de/joerglau/2007/06/05/necla-kelek-uber-moscheebau-und-religionsfreiheit_538
     (06.06.07).
20
          OVG Koblenz NVwZ 2001, pp. 933.

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not a very convenient basis for running a house of prayer or a cultural centre. In this kind of
cases settlements are the much more preferable solution; such settlements could be found in
preliminary discussions with the administration involved as well as with the public in general.
Fortunately this has become the usual way of handling matters in Germany, despite some
heavy conflicts in cities like Munich, Cologne and Francfort.
For the running of mosques, cultural centres and similar institutions no specific form of
organization is prescribed in principal. The widespread registered association gives the
executive committee the capacity to act in a flexible way within a framework of unambiguous
liability regulations generally discharging the individual, as well as favourable financing
possibilities through tax deductible donations on recognition of the charitable nature


     b) Halal-Slaughtering


In a landmark decision the Federal Constitutional Court decided on January 15th 200221 that
the freedom of religion includes the right for Muslims to slaughter animals according to their
imperative religious commands. This includes forms of slaughtering without pre-stunning of
the animals, which is generally forbidden by the Law on the Protection of Animals. According
to para. 4a of this law a religious community may apply for a licence to carry out the
slaughtering according to such imperative commands. It should be mentioned that the
Jewish community had the licence to slaughtering without pre-stunning according to their
religion until the takeover of the Nazi-government in 1933 and again since the defeat of the
Nazis in 1945. Concerning Muslims there were two problems to be solved. Firstly some
courts didn‟t consider the Muslim applicants to form a "religious community" in a legal sense.
They were following a – legally wrong – understanding of a religious community to
necessarily have a structure similar to Christian churches. Muslims, who historically were not
used to build comparable structures, would then be excluded to exercise obvious religious
rights for such superficial reasons. The Constitutional Court therefore held that a group of
persons with common beliefs organized in forms whatsoever could fulfil the prerequisites of
the law in that respect.
Secondly the question was raised whether there are in fact imperative rules in Islam
commanding to slaughter animals without pre-stunning. According to a fatwa given by the
late mufti of Egypt in the 1980es and others22, the methods of slaughtering common in
Europe would be acceptable for Muslims. Therefore rules of slaughtering without pre-

21
         BVerfG NJW 2002, pp. 663.
22
         In this sense see the statements of the mufti of Egypt and president of the al Azhar university dated
25.2.1982 and the Islamic World League in Jiddah 1989 and other authorities; cf. OVG Hamburg NVwZ 1994,
pp. 592, 595 s.

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stunning were denied to be imperative.23 This approach, however, was not in consistence
with the demands of the state‟s neutrality towards religions. The state and its courts are not
entitled to decide in the case of several contradictory religious doctrines which of them have
to be held as being "true" and therefore binding. It is up to the believers themselves to
decide whom to follow. For this reason the Constitutional Court pointed out that it will be
sufficient for obtaining the above-mentioned licence if there are reasonable grounds for the
required method of slaughtering to be found in religion. To my opinion this was the most
crucial point to the judgement with far-reaching consequences for the status of Muslims in
Germany as a whole: For the first time it was made clear that it is upon the Muslims in
Germany (only) to decide on their creed and needs.
The intention of the law to protect animals as far as possible was not neglected in this
decision: Only persons who are proved to be capable to slaughter animals in a decent
manner like well-skilled butchers are likely to obtain a licence to do so. The main federal
organizations of Muslims in Germany then created a joint commission to work out a paper on
the details and to cooperate with the relevant bodies of administration.
Nevertheless, there is an ongoing and to a large extent a very emotional discussion on this
judgement.24 The protection of animals – a very important issue among vast groups of
citizens – is considered to be consecrated for “mediaeval religious purposes”. It didn‟t even
help that the Constitutional Court itself stressed the lack of evidence that an expert
slaughtering without pre-stunning would cause considerable greater pain for animals in
comparison to the current methods of slaughtering, not to speak about the really cruel
transport of animals to be slaughtered throughout Europe. It should also be mentioned that
there is an interesting discussion on the need of slaughtering without pre-stunning among
Muslims themselves.25 In the meantime the big political parties in Germany agreed on
changing the Constitution by an amendment which would elevate the protection of animals
to a constitutional aim.26 It is not by accident that this initiative was started half a year
before the federal elections. Since then, some administrations apparently tried to avoid the
application of the court's rules – which have legal quality – by administrative means.
Nevertheless it will be interesting to see whether in the future Muslims and Jews will be
prevented from halal-slaughtering.


     c) The headscarf
23
       Cf. BVerwG BVerwGE 99, pp. 1; see also BVerwG NJW 2001, pp. 1225.
24
       Cf. „Lyrik für Wähler“ – Tierschutz, Grundgesetz und die Union, Frankfurter Allgemeine Zeitung
(FAZ) 27.03.2002, p. 6.
25
       Cf. Rohe, Der Islam - Alltagskonflikte und Lösungen, 2nd ed. Freiburg 2001, p. 187.
26
       Cf. "Tierschutz im Grundgesetz", FAZ 18.05.2002, 2; for details see Rohe, Das Schächt-Urteil des
Bundesverfassungsgerichts vom 15. Januar 2002, österreichisches Archiv für recht & religion 2002, pp. 78.

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Another practical example concerns Muslim female employees wearing the veil (headscarf).
In a number of cases, especially if these women have functions in dealing with the public
(e.g. in warehouses, offices etc.), employers forbade them to wear the headscarf during
working times. In a recent case in the state of Hessen, a Muslim clerk working in a
warehouse on the countryside was given notice to terminate the contract due to her refusal
to work unveiled. There was a generally accepted rule within the company that everybody
had to wear “decent” clothes which would not give offence to customers. The employer
stated that he himself did not care about the veil, but that there was some evidence that the
mainly conservative customers would not accept to be served by a veiled clerk and would
certainly change to competing warehouses. The appeal of the employee against the notice
was dismissed by the Labour Court of Appeal of Hessen on the same grounds.27
There was considerable and in part understandable irritation among Muslims concerning this
decision. But it has to be taken in consideration in such cases that it is the state alone who
has to grant religious freedom according to the Constitution. In the field of private law,
however, the constitutional rights exert a so-called “indirect” influence on the rules of law.
This means that they have to be taken into consideration without being enforced in a
similarly direct and far-reaching manner as it is the case in conflicts between individuals and
the state. In these private cases there a two constitutional rights in conflict: the freedom of
religion in favour of the employee and the freedom of personality which implies to create
and to terminate contractual relations according to personal interest.
Nevertheless, the Federal Labour Court finally accepted the appellant's claim.28 It stressed
the great importance of religious freedom which cannot be ruled out by mere suppositions of
possible economic disadvantages to the detriment of the employer. Even in case of proven
disadvantages the employer would first have to consider whether the employee could be
occupied in a less sensitive space before being entitled to terminate the contract. This
judgement was affirmed by the Federal Constitutional Court.29
Furthermore, in a movement of anti-discriminatory legislation the European Union
promulgated a directive on employment law to forbid discriminatory measures on religious
grounds.30 This directive is strongly supported by Muslims in Germany. I would like to



27
         LAG Hessen 21.06.2001, NJW 2001, pp. 3650.
28
         BAG NJW 2003, p. 1685.
29
         BVerfG NJW 2003, p. 2815.
30
         Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal
treatment in employment and occupation, OJ L 303, 2.12.2000, pp. 16. Cf. Rohe, Schutz vor Diskriminierung
aus religiösen Gründen im Europäischen Arbeitsrecht - Segen oder Fluch? in: Krause/Veelken/Vieweg (Eds.),
Recht der Wirtschaft und der Arbeit in Europa, Gedächtnisschrift für Wolfgang Blomeyer, Berlin 2004, pp. 217.

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recommend not to be too optimistic about the possible results of it. I am not far from being
sure that employers who continue to refuse the employment of veiled women will find ways
not to employ them respectively to finish their contracts for other, legally “acceptable”
reasons. Others could hesitate to accept any application of Muslim women, being unveiled or
veiled, to avoid any kind of problems in the future (of course without publicly declaring that).
According to my opinion, the true solution of this problem is not to be found within the
sphere of law. As long as the headscarf is regarded to be an instrument of suppression of
women and of religious fundamentalism contrary to the values of the democratic and
humanitarian legal order by large parts of society as a whole including a considerable
number of Muslims, the problems will last.


    d) Religious needs and social security


Religion has its effects even on the law of social security. Courts have held that in the case
of financial need social security funds have to pay for the costs of a boy‟s circumcision31, for
the ritual washing of the body of a deceased Muslim32 or for the burial of the deceased at a
Muslim cemetery in the state of origin including the costs of transport if there is no Muslim
cemetery in Germany available.33 On the other hand the Administrative Court of Mainz
dismissed the claim of a Muslim woman wearing a niqāb (which is leaving only the eyes
visible) for social support. The reason was that this special kind of clothing would prevent
her from finding an employment, and that she didn't produce any explanation for the
necessity of it.34
German law of social security is treating polygamous marriages to be legally valid provided
that the marriage contracts are valid under the law applicable to the formation of these
contracts (of course, this kind of marriage fundamentally contradicts German and European35
legal standards, therefore it cannot be contracted legally valid in Europe).36 The reason is
that it would not help the second wife or further wives who may have lived in such a kind of


The directive has been implemented into German law by the Act on Equal Treatment (Allgemeines
Gleichbehandlungsgesetz).
31
         OVG Lüneburg FEVS 44, pp. 465 ss.
32
         VG Berlin NVwZ 1994, p. 617.
33
         See OVG Hamburg NJW 1992, pp. 3118, 3119.
34
         VG Mainz 26.02.2003 (Az. 1 L 98/03.MZ) - not yet published.
35
         Perhaps there will be new developments on the basis of laws regulating registered partnerships.
According to a recent report from the Netherlands, a male partner succeeded in registering partnerships with two
female partners, cf. “Mann wird “Partner” zweier Frauen”, FAZ 05.10.2005, p. 9. It is highly recommendable to
adjust these laws to European standards agreed upon since centuries.
36
         Cf. LG Frankfurt a.M. FamRZ 1976, p. 217; LG Osnabrück NJW-RR 1998, p. 582; AG Bremen StAZ
1991, pp. 232, 233; Staatsanwaltschaft bei dem LG Muenchen I IPRspr. 1996 No. 62; VGH Kassel NVwZ-RR
1999, pp. 274, 275.

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marriage since a long time to deprive them from their marital rights such as maintenance
etc. In this sense para. 34 sect. 2 SGB I (Social code I) which contains provisions on social
security systems regulates the per capita-division of pensions among widows who were living
in a polygamous marriage.37 However, German law differentiates between mainly private
aspects of marriage and predominantly public ones, especially those relating to immigration
law. The latter would not provide more than the first wife with marital privileges within its
scope of application, e.g. concerning residence permits.38


     e) Muslim self-organization


In some cases, e.g. with respect to running cemeteries or to cooperate with the state in
matters of religious instruction in public schools, it is necessary for religious people to
organize themselves. There are different forms of organizations, some of them are specific
German legal institutions.
The legal framework for religious associations (Religionsgesellschaft, Religionsgemeinschaft)
is determined by art. 140 GG, art. 137 of the Weimarer Reichsverfassung (Weimar
Constitution) (WRV)39. According to the common definition a religious association consists of
members of the same religious denomination, or of several related religious denominations
with religiously corresponding views, unite in order to profess their common denomination
and to universally fulfil their tasks resulting from the religious denomination.40

In view of the religious and ideological neutrality of the state, it is practically beyond dispute
that the public law concerning religious associations must also be open to comprise non-
Christian religions.41 First it has to be noted that Muslims are in no way obligated to form a


37
         The English solution differs fundamentally from the German one. None of the widows is accepted to be
one legally, cf. Court of Appeal in Bibi v. Chief Adjudication Officer [1998] 1 FLR 375.
38
         Cf. OVG Koblenz 12.03.2004 (10 A 11717/03), not published
39
    This legal provision in Art. 137 WRV ? reads as follows:
    (1) There shall be no national church.
    (2) The freedom to unite in order to form religious associations shall be granted. The unification of
         associations within the territory of the “Reich” (analogously today the territory of the Federal Republic,
         the author) shall not be subject to any restrictions.
    (3) Each one of the religious associations shall organize and administrate its affairs independently within
         the limits of the law that is binding for everyone. It shall grant its posts without interference by the state
         or the civil community.
    (4) Religious associations shall acquire legal capacity in accordance with the general regulations of the civil
         law.
    (5) Religious associations shall remain public-law corporations, as far as that was their former status. Other
         religious associations shall be granted equal rights on application, if duration is warranted through their
         constitution and the number of their members. (…)
40
    Cf. the answer of the Federal Government to the major interpellation on Islam in Germany, BT-Drucksache
    (Bundestag – printed matter) 14/4530 dt. 08/11/2000, 33, with further references; BVerwG NJW 2005,
    2101, 2102.
41
    Instead of all: Link, Theologische Realenzyklopaedie, 2000; Art. Staatskirche/Staatsreligion II 2.8.3, end.

                                                                                                                   11
uniform “Islamic” organization to be entitled to assert the rights provided by the law for
religious associations.42 This becomes evident by a comparison with the organization of
Christians in Germany: There is neither a single Christian church nor a “Christian” religious
instruction as such in state-run schools.
It is on the horizon that Sunni, Shi‛i and Alevi Muslims, as well as the Ahmadis are
developing into more or less independent organizations.43 From a practical point of view it
has to be pointed out that recognition of the variety of religious tendencies within Islam
must not necessarily complicate the situation, but could also make it easier: Forced unity
usually is not a very strong basis for stable relations, and it would unduly cover existing
Muslim diversity which to the contrary may even be helpful for the development of Islam
within the existing legal framework. The German administration more and more learns to
deal with this diversity in its efforts to establish reliable relations in the fields of legally
necessary co-operation.
In principle, the whole spectrum of legal forms of organization is open to Muslims in
Germany. These differ considerably with regard to their prerequisites and legal
consequences. Therefore, Muslims must in any case decide which form of organization would
be the most appropriate for their respective aim. Compulsory membership has to be ruled
out in any case. The obligation to admit those willing to be admitted exists only in rare
exceptional cases, where the organization has a monopoly position and those excluded
cannot effectively represent their interests (corresponding to those of the organization)
without affiliation.44
There are considerable differences regarding the density of regulations. The prerequisites for
registered associations are comparatively clear and therefore calculable. In contrast to this,
the prerequisites for achieving the status of a partner for the implementation of religious
instruction at public schools are controversial and unclear regarding some basic issues and
many details.45 To my opinion, the state has a certain obligation to co-operate in making
clear the respectively necessary steps. It has to be taken into consideration that the
establishment of Islam is a new phenomenon different from Christian religious structures and
therefore requiring new reflection on how the existing rules have to be applied. Muslims
cannot be expected to spend endless energy and money for years to form organizations for
a certain purpose without any reliable knowledge of the necessary steps towards this aim.

42
     Cf. only BVerwG NJW 2005, 2101, 2103.
43
     Cf. M. Rohe (n. 12) 23, 72, with further references.
44
     For details cf. Palandt-Heinrichs, BGB, 68th ed. 2009, § 25 n. 10, with further references.
45
     For details cf. the recent collection of articles written mainly by persons involved in practical work in this
     field edited by W. Bock, Islamischer Religionsunterricht?, Tuebingen, J.C.B. Mohr (Paul Siebeck), 2006;
     and the thorough study of M. Dietrich, Islamischer Religionsunterricht: Rechtliche Perspektiven, Frankfurt
     am Main, Lang, 2006.

                                                                                                               12
Otherwise, the realisation of the constitutional rights would turn out to be merely theoretical.
The federal Islamkonferenz has established a working group which has worked out a paper
for further clarification.46 At the same time Muslims willing to organize must act transparently
on behalf of their intentions, to create the necessary basis for informed decisions.
Registered associations until now are the most attractive form of Muslim organizations.47 The
registration in the register of associations, which is kept by the local courts, is required (cp.
sect. 21 BGB [/German Civil Code]). Prerequisites for registration are the adoption of a
statute, the application for registration by the president or executive committee (cp. sect. 26
BGB) under presentation of the articles which must be correct in form and in fact. The
regulations of the law governing associations have to be interpreted and applied in a way
that takes adequate account of the special constitutional protection of religious
communities.48 This applies especially to regulations concerning the internal constitution
without external impact. It is also possible, that the religious association is – in accordance
with its self-conception - constituted as a branch of a religious community, without
contravening the ruling law governing associations for that reason alone.49 In any case, there
must also be clarity as regards membership, although the form of the regulations of
admission may follow religiously motivated peculiarities. If the legal prerequisites have been
met with, there is an entitlement to entry in the register of associations.50
For financing religious and/or cultural activities, co-financing of the respective projects
through donations will often be of special importance. The readiness to make donations
usually rises if the donations are allowable in full or in part against taxable profits. This
requires the recognition of the purpose of the association to be for the benefit of the public,
charitable or ecclesiastical (cf. sect. 51 ss. Abgabenordnung).51 Other tax exemptions or tax
relief, e.g. relating to corporation income tax, municipal trade tax, or inheritance tax, are
then also available.
The actual activities of the association must, of course, be consistent with the provisions of
the respective regulations; the benefit of the public that exists “only on paper” will not be
considered in this respect.
Consequently, there is a need to distinguish between profitable (cf. sect. 22 BGB) and non-
profitable (religious) associations. The recognition as a non-profitable association might face

46
     Available under www.deutsche-islam-konferenz.de
47
      Cf. Deutscher Bundestag (Federal Parliament), Stand der rechtlichen Gleichstellung des Islam in
      Deutschland, Antwort der Bundesregierung auf die Große Anfrage (BT-Drucksache 16/2085), BT-
      Drucksache (printed matter) 16/5033 (18.04.2007), p. 24.
48
      Cf. BVerfG NJW 1991, pp. 2623.
49
      BVerfG NJW 1991, 2623, 2626.
50
      BGHZ 45, 395 = NJW 1966, 2007; unclear BVerfG NJW 1991, 2623, 2624; cf. also v. Campenhausen,
      Rechtspfleger 1989, 349 s.
51
      Cf. U. Koenig, in A. Pahlke and U. Koenig, Abgabenordnung, Muenchen, C.H. Beck, 2004, § 54 n. 1 ss.

                                                                                                      13
difficulties, if commercial activities are broadly pursued. However, if such activity, e.g. the
distribution of religious literature, or the issue of certificates for the slaughtering of animals
in conformity with Islam with costs, remains a mere “side-purpose”52 within the scope of
religious-spiritual objectives, it is without any detrimental legal effects.
Moreover, some Muslim organizations strive for being granted the rights of a public law-
corporation and have filed corresponding applications with the responsible authorities.53 Art.
140 GG in connection with art. 137 par. 5 WRV (/Weimar Constitution) offers religious
communities this possibility, provided that they warrant duration through their constitution
and the number of their members.54 According to the recommendations of the Conference of
Ministers for Education and Cultural Affairs of 1954 and 1962 and a few other regulations on
the granting of corporation rights, the religious community warrants duration if it has proved
itself for a period of 30 years as a solid organization within legal life.55 This results in a
merely temporary restriction. Recent developments within and among important Muslim
organizations however show that there still is a considerable degree of instability, despite
serious efforts to create more reliable structures. At present the major Christian churches
have such status, but also the “Zentralverband der Juden in Deutschland” (National Union of
the Jews in Germany).56
An abundance of considerable legal benefits is connected with recognition as a public-law
corporation. The taxing power with the help of the national tax offices (art. 137 par. 6 WRV),
extensive tax privileges, the extended protection of own activities (the right to refuse to give
witness evidence in court, special duties of care of the government with respect to the
establishment and operation of institutions serving ritual and other religious purposes by
such corporations), rights of participation in public life (broadcasting boards, youth welfare,
spiritual assistance in the army or in prisons), the capacity to be an employer and disciplinary




52
     Cf. only Palandt-Heinrichs, BGB, 68th ed., Muenchen, C.H. Beck 2009, § 21 n. 5.
53
     Cf. Deutscher Bundestag (n. 47) pp. 26; W. Loschelder, “Der Islam und die religionsrechtliche Ordnung des
     Grundgesetzes”, in H. Marré and J. Stueting (ed.), Der Islam in der Bundesrepublik Deutschland, Muenster:
     Aschendorff, 1986, 149, 162 ss..
54
     The administrative practice is non-uniform here; acc. to D. Ehlers, in M. Sachs, Grundgesetz – Kommentar,
     Muenchen, 3rd ed., C.H. beck, Muenchen, 2003, art. 140, (art. 137 WRV), n. 20, a minimum of 1/1000 of the
     inhabitants of the respective Land is taken as a basis. In contrast to that, the “Deutsche Orden” with a
     membership of only a few dozens was granted corporation status in Bavaria in 1998.
55
     For details cf. H. Weber, “Muslimische Gemeinschaften als Koerperschaften des oeffentlichen Rechts”, in J.
     Oebbecke (ed.), Muslimische Gemeinschaften im deutschen Recht, Frankfurt am Main, Lang, 2003, pp. 85,
     90 ss.
56
     Cf. G. Thuesing, in R. Richardi, G. Thuesing, G. Annuß and R. Dietz, Betriebsverfassungsgesetz mit
     Wahlordnung, 10th ed., C.H. Beck, Muenchen, 2006, § 118, n. 193, with further references; Deutscher
     Bundestag (n. 47) pp. 74.

                                                                                                            14
power, as well as the parochial right (claiming of persons moving into the area who belong
to the religious community as members).57
Of course, the granting of such extensive rights requires the religious community to be loyal
to the law. In particular, it has to warrant that it will exert the sovereign power granted to it
only in keeping with the constitutional law and other legislation and that its future behaviour
will not endanger the fundamental constitutional principles laid down in art. 1 and 20 of the
Constitution, the basic rights of third parties entrusted to the state for protection and the
basic principles of the liberal law of religious organizations and the law concerning church-
and-state relations of Germany. Any further loyalty to the state apart from that is not
required.58 Thus, if a religious community strives for the establishment of a theocratic system
of power, this would clearly contradict the prerequisites for recognition in the above-
mentioned sense. Its behaviour has to warrant that the prohibition of a national church as
well as the principles of religious neutrality of the state and the parity of the religions remain
unaffected.59
The criterion to prove all these prerequisites is not the theoretical “belief” of the respective
religious community, but its actual interpretation and subsequent behaviour.60 Purely
theoretical, theologically founded reservations against political systems (e.g. the qualification
of political systems as “part of the world of Satan”) are not detrimental as long as the
religious community recognises the state (in its constitutional order) in its actual behaviour
as a transitional system tolerated by God.61 This may become important especially for Shi‛i
movements, which – for religious-historical reasons – have kept their distance to
governmental power.62 However, the overwhelming majority of Muslim organizations in
Germany have declared their support for the national legal system. The legally difficult
details regarding this topic are beyond the scope of this paper. It has to be noted that this
form of organization is principally available for Muslims. The constitution does not know of a
“Christian cultural reservation”.63 Surely, the Christian churches have served as a model for
the corporation status. Nevertheless, a mechanic transferral of this model to all other
religious communities is not required and therefore not permissible. Instead of that, the law
57
     Cf. the survey in M. Sachs-D. Ehlers, Grundgesetz – Kommentar, Muenchen, 3rd ed., C.H. Beck, Muenchen,
     2003, art. 140, (art. 137 WRV), n. 17 ss.; H. von Mangoldt, F. Klein and C. Starck – von Campenhausen,
     Das Bonner Grundgesetz, 4th ed., Vahlen, Muenchen, 2001, art. 137 WRV n. 236 ss.
58
     In this sense the leading “Zeugen Jehovas” decision of the Federal Constitutional Court 19.12.2000, NJW
     2001, pp. 429. This decision seems in some of its passages to be clearly aimed at Muslim communities.
59
     BVerfG 19.12.2000, NJW 2001, pp. 429, 432.
60
     Cf. BVerfG (n. 59) p. 431 s.; A. Albrecht, “Die Verleihung der Koerperschaftsrechte an islamische
     Vereinigungen”, KuR 1/1995, pp. 25; S. Muckel, “Muslimische Gemeinschaften als Koerperschaften des
     oeffentlichen Rechts”, DÖV 1995, pp. 311.
61
     BVerfG (n. 59) 433.
62
     Cf. Halm, Der schiitische Islam, Muenchen, C.H. Beck, 1994, p. 146 and other places.
63
     Cf. only S. Muckel, “Religionsgemeinschaften als Koerperschaften des oeffentlichen Rechts”, Der Staat 38
     (1999), pp. 569, 592, with further references.

                                                                                                          15
in force has to be applied according to its aims rather than according to historical definitions,
thus in part re-assuring the technical prerequisites for the recognition as a public law-
corporation.
To my opinion, Muslims would be well advised to drive recognition as a public-law
corporation forward only if the precondition of sufficient internal consolidation of the
respective association is granted. It should be taken into consideration that the prospect of
public influence and considerable privileges, also of a financial nature, quite often tends to
trigger off battles for a share. Experience shows that this is a normal process, also where
spiritual aims are pursued. But one has to consider that such battles for a share can be
overcome without greater damage only, when a certain consolidation of the individual
organizations involved has already been achieved. At the time present, none of the bigger
Muslim organizations seems to promote this recognition for the foreseeable future.


   C. The application of Islamic legal norms


As it comes to the application of legal rules, the conflict between possibly contradicting rules
of the law of the land and the law of religious/cultural origin has to be solved.
In the field of law, most of the existing legal orders have a territorial basis: everyone within
the territory of a specific state has to abide by the same laws. Only the state can decide
whether and to what extent „foreign‟ law can be applied and enforced on its territory. Thus
the legal system is not „multi-cultural‟ as far as it concerns the decisive exercise of legal
power. Therefore, the application of foreign legal provisions – including Islamic ones – is an
exceptional case. However, this does not mean that foreign legal principles and cultural
influences are kept out. Nevertheless, the constitutional principles of the inviolability of
human dignity, democracy, the rule of law with the binding force of all state power,
separation of powers, majority rule and minority protection, as well as the essential elements
of constitutional civil rights, such as the equality of the sexes, freedom of opinion, religious
freedom and protection of marriage and family etc., are among the basic principles which
cannot be dispensed with. Within this framework, foreign legal provisions can be formally
applied on three different legal levels. Besides that, the state has no control on informal
ways of application as long as its bodies are not called upon by one of the parties involved.




                                                                                              16
1. Private International Law (the rules regulating the conflict of laws in matters concerning
civil64 law) is a possible level of direct application of Islamic legal rules. In the area of civil
law, the welfare of autonomously acting private persons is of prime importance. If someone
has organized his/her life in accordance with a certain legal system, this deserves protection
when the person crosses the border. However, it is also within the interest of the legal
community that in certain matters the same law should be applicable to everyone resident in
a particular country. This would be especially the case in matters touching the roots of legal
and societal common sense, like the legal relations between the sexes or between adherents
of different religions. The question as to whether foreign or national substantive law should
be applied must therefore be determined, and this is done by Private International Law
provisions (conflict of laws), which weigh up the relevant interests.

As it comes to the areas of family law and the law of succession, the application of legal
norms in European countries is often determined on the basis of nationality of the persons
involved rather than by their domicile.65 Other than in Canada or in the US66, European
courts are therefore often obliged to apply Islamic legal rules. In this respect it may
generally be stated that Islamic law until today has a strong position especially within these
areas. This can be explained by the fact that Islamic law in this area has a multiplicity of
regulations derived from authoritative sources (Qur‟ān and sunna). Furthermore, a powerful
lobby obviously tries to preserve this area as a stronghold due to religious convictions as well
as for reasons of income and the exercise of power (which was very similar in Europe in
former times). The Tunisian lawyer Ali Mezghani states that “[i]n Islamic countries, it is
difficult to deny that family law is the site of conservation.”67 This is true despite the fact that
in several Islamic countries, namely in Morocco, reforms have taken place and still are in
progress.68 In others, there is even a remarkable backlash to traditional standards.

However, the application of such provisions must comply with the rules of public policy. If
the application of legislation influenced by Islamic law would lead to a result that is obviously
incompatible with, for example, the main principles of German law, including constitutional
civil rights, the provisions in question cannot be applied. The main conflicts between

64
         Of course, in the sphere of public law and especially of penal law, foreign law is not applicable. Public
law regulates the activities of the sovereign himself; and penal law has to define rules which are necessary to
grant a minimum consensus of common behaviour in the relevant society.
65
         For further details cf. Rohe, Islamic Law in German Courts, Hawwa 1 (2003), pp. 46
66
         Cf. Foblets/Overbeeke, Islam in Belgium, in: Potz/Wieshaider (Eds.), Islam and the European Union,
Leuven/Paris/Dudley 2004, pp. 1, 25; Rude-Antoine, La coexistence des systèmes juridiques différents en
France : l’exemple du droit familial, in: Kahn (ed.), L’étranger et le droit de la famille, Paris 2001, pp. 147, 161.
67
         Mezghani, Le juge français et les institutions du droit musulman, J.D.I. 2003, pp. 721, 722.
68
         Cf. Rohe, Der Islam – Alltagskonflikte und Lösungen, 2. ed. Freiburg/Br. 2001, pp. 53 and 112; for
recent interesting developments in the Maghrib cf. Nelle, Neue familienrechtliche Entwicklungen im Maghreb,
StAZ 2004, pp. 253.

                                                                                                                 17
traditional "Islamic" and European legal thinking in family law concern the constitutional (and
human) rights such as equality of the sexes and of religious beliefs and the freedom of
religion including the right not to believe. Conflicts mainly arise from provisions reflecting
classical Islamic Law, which preserve a strict separation between the sexes with respect to
their social roles and tasks as well as the far-reaching legal segregation of religions under
the supremacy of Islam.


2. A further area of – indirect – application opens up within the framework of the so-called
„optional‟ civil law. Private autonomy is the core value of the liberal European Civil law
orders. Thus, in matters exclusively concerning the private interests of the parties involved,
these parties are entitled to create and to arrange their legal relations according to their
preferences. Legal rules regulating such matters are "optional" within a certain framework.

As an example we may note the fact that various methods of investment are offered which
do not violate the Islamic prohibition of usury (“riba”, which according to traditional views
means the general prohibition of accepting and paying interest69). Concerning project
finance, Islamic legal institutions like the murabaha or the mudaraba can be used.70 These
are certain forms of partnerships intending to attract capital owners to participate instead of
merely giving credit, the latter bearing the risk of contradicting the riba-rules. Commerce and
trade have already responded to the economic/legal needs of traditional Muslims. German
and Swiss banks, for instance, have issued „Islamic‟ shares for investment purposes, that is
to say share packages that avoid companies whose business involves gambling, alcohol,
tobacco, interest-yielding credit, insurance or the sex industry, which are illegitimate in
Islamic law.71 In the UK a special concept of "Islamic mortgages" was developed, which
allows Muslims willing to purchase chattel to avoid conflicts with provisions concerning riba
(when paying interest on “normal” mortgages).72 The "Islamic" mortgage consists of two
separate transactions aiming at one single result. Until recently each transaction was subject
to taxation. Now a reform took place of which the key issue was to abolish the double
"stamp duty", because it prevented Muslims from economically successful engaging in real
property due to the formal system of taxation without a sufficient substantial reason. Even




69
         Cf. Saeed, Islamic Banking and Interest. A Study of the Prohibition of Riba and its Contemporary
Interpretation, Leiden/New York/Köln 1996; Iqbal, Islamic Banking and Finance, Leicester 2001.
70
         Cf. Klarmann, Islamic Project Finance, Zurich/Bâle/Genève 2003; Bälz, A Murbaha Transaction in an
English Court, ILAS 11(2004), pp. 117.
71
         Cf. Venardos, Islamic Banking and Finance, New Jersey u.a. 2005, p. 70.
72
         Cf. Iqbal Asaria, Islamic home finance arrives on UK’s high streets, Muslim News 25 July 2003 (no.
171), p. 6.

                                                                                                        18
the German state of Sachsen-Anhalt has recently placed an Islamic bond (“sukuk”73, 100m
Euro for the beginning), based on a Dutch foundation.74 For traditionally orientated Muslims,
the offer of such forms of investment in Europe is of considerable importance. According to
my knowledge many of them have lost huge sums of money in the past to doubtful
organisations from the Islamic world bearing a "religious" veil, or to similar organisations
based in Europe75.
In the field of Matrimonial law, tendencies of implementing Islamic norms into optional law
can also be identified in Germany in connection with matrimonial contracts. Thus, in
Germany contractual conditions regulating the payment of the "Islamic" dower ("mahr" or
"sadaq") are possible and generally accepted by the Courts.76
It is remarkable in this context that the Central Council of Muslims in Germany declared in its
charter on Muslim life in German society on February 20th, 2002 ("Islamic Charta"77) that
Muslims are content with the harmonic system of secularity and religious freedom provided
by the Constitution. According to art. 13 of the charter, "The command of Islamic law to
observe the local legal order includes the acceptance of the German statutes governing
marriage and inheritance, and civil as well as criminal procedure." In the Swiss canton of
Zurich, the Union of Islamic Organisations in Zürich78 has expressly stated in its Basic
declaration that the Union does not intent to create an Islamic state in Switzerland, nor does
it place Islamic law above Swiss legislation (sec. 1). The union also expressly appreciates
Swiss law of marriage and inheritance (sec. 5.). Similarly, the renowned French imam Larbi
Kechat has stated that "Nous sommes en harmonie avec le cadre des lois, nous n‟imposons
pas une loi parallèle."79 According to experiences in Belgium also, the vast majority of Muslim
women living in between the rules of Muslim family law and women‟s rights claims the
protection of Belgian substantive law.80 The range of diversity granted by the law of the land
itself seems to meet the needs and creeds of the overwhelming majority of Muslims in
Europe quite well.


73
         It is based on a combination of leasing contracts concerning the state’s real property; cf. “Finanzmarkt:
Islam-Anleihe aus Magdeburg”, Die Bank 01.01.2004.
74
         Cf. “Sachsen-Anhalt bereitet erste islamische Anleihe vor”, FAZ 06.11.2003, p. 31; „Anlegen mit
Allahs Segen“, Handelsblatt 14.07.2004, p. 29.
75
         Cf. the reports on doubtful investments in Turkey supported by certain organisations in "Neuer Markt
auf      Türkisch”,      SPIEGEL        ONLINE         29.01.2004      (called      on      29.01.2004      under
http://www.spiegel.de/0,1518,283591,00.html).
76
         Cf. BGH NJW 1999, p. 574; OLG Celle FamRZ 1998, pp. 374.
77
         An English version can be found under http://www.islam.de/?site=sonstiges/events/charta&di=en
(called on 30.01.2004).
78
         Vereinigung der Islamischen Organisationen in Zürich (VIOZ), Grundsatzerklärung v. 27.03.2005.
79
         Larbi Kechat: le coran a été relevé au VIIe siècle: dans le contexte socioculturel de l’époque, entretien
réalisé par Guy Gauthier, in Panoramiques No. 29 (2e trimestre – 1997), L’islam est-il soluble dans la
République, pp. 183, 189.
80
         Cf. Foblets/Overbeeke (n. 66), p. 34.

                                                                                                               19
     D. Conclusion


To sum up, European law is consistent and immutable in its democratic and human rights-
orientated principles, but it also – or better for that grounds - leaves broad space for the
religious freedom of Muslims. To be a democrat, an equal member of society and a Muslim
therefore is not a contradiction in itself, but could serve as model for Muslims as well as for
non-Muslims for the time present and for the future. On the other hand, it is important to
enable Muslims as well as everybody living in the country to enjoy religious freedom equally.
This freedom is not a privilege of the majority. In general, in cases of conflicts courts have
proven and still prove to be reliable allies for Muslims in claiming their due rights.
As it comes to the self-definition of Muslims adherent to Islamic norms in Europe, there are
two main aspects to be kept in mind. First, there is no body of legal or religious rules laid
down in laws or canons of religious obligations, but rather a system of identifying rules and
then applying them to certain cases and situations. Even in the field of law, a large
proportion of rules in both the traditional Sunni and Shi‛i schools are founded upon
secondary legal findings such as interpretation and conclusions on the base of human
reasoning. The statement that only God himself can be the legislator, which has been
formulated by many academic lawyers, is thus very restricted in practice. From the early
times of Islam human beings interpreted the divine statutes and developed norms of
application. It may be cautiously said that there is not a single binding provision in Islamic
law which can be applied without such interpretation and interpretations can change as
human beings and their living conditions do.81 The plurality of opinions within Islamic law is
evidence for this. Furthermore, for more than 100 years and often in older times extensive
efforts have been made to create a broad forum for the application of independent legal
reasoning (iğtihād)82. This has allowed a certain reserve of flexibility which is necessary for
legal practice to be accumulated so that an adequate response can be made to the situation
of the Muslims in the Diaspora. I would like to quote a European Muslim here: “ (...) we had
very vital, very alive, very evolving jurisprudential activities up to the fourth century of Islam.
Then suddenly the community was declared to go braindead. No longer are we allowed to
develop our ideas. For it became doctrine that everyone must follow one of the present
current schools. I believe that our crisis starts from this point.”83




81
       Cf. Youssef Seddik, Avon-nous jamais lu le Coran?, Esprit no. 239 (1/1998), pp. 99.
82
       Cf. e.g. T. Ramadan, To be a European Muslim, Leicester 1999, pp. 82, pp. 93.
83
       Badawi, in: King (ed.), God's Law versus State Law, London 1995, p. 73.

                                                                                                20
Second, Islamic norms are not necessarily considered to be valid and binding at every time
and place, but are subject to interpretation whether and to which extent they have to be
applied in time and space. Some, for example, only applied to the wives of the prophet of
Islam, Muhammad; others are aiming to the Non-Muslim population of the Arabian Peninsula
in the first century A.H. Only a relatively small number of rules are taken to be binding at
any time and at any place. These rules are mostly concerning the individual relation between
God and man, the core of belief itself - the so-called five pillars of Islam. But even in this
field, Muslims have found and developed interpretations which are allowing them to arrange
their living conditions in a society which is predominantly non-Muslim (e.g. in the field of
delaying or contracting the obligatory prayers). Furthermore, these rules are not enforceable
in this world and therefore restricted to rule the relations between God and man.
In this sense the task in Europe would be to define rules for Muslims here in accordance with
the indispensable values of democracy, Human Rights and the rule of law governing
European legal orders. Within the framework of these orders, Muslims have to be enabled to
practice their belief not only in a theoretical position, but in daily life. The adversaries of this
kind of constitutional orders are to be found among Muslim extremist groups like Khilavet
Devleti, Hizb al-Tahrir or Murabitun as well as among right or left-wing radicals, extremist
feminists, Christian fundamentalists and simple racists (who are sometimes to be found
unified in strange alliances). Insofar all Europeans should remember that freedom of religion
and therefore religious pluralism in an integral part of the liberal European constitutions, and
that everybody who is willing to respect the rule of the land should enjoy this freedom
Let me end with the words of the former president of the European Commission Romano
Prodi concerning the dialogue of cultures: “It is not the matter just to passively experience
events and to accept a cultural uniformity within which the values and the will of the
strongest would be imposed on the rest. The European Union, a singular example of
democratic constitution and integration of different cultures, can prove that there is an
alternative formula to cultural uniformity or domination: a dialogue which respects different
cultures and their representatives, as long as these different cultures are ready to respect
the fundamental values of man.”84




84
       „Valoriser l’héritage culturel commun!“, Le Figaro 04.04.2002, p. 14.

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