Re-inventing Islamic law practices in the Netherlands

A recent report (HERE in Dutch) from researchers from Radboud University Nijmegen in the Netherlands revealed that there are no ‘sharia courts’ in the Netherlands. This means that there are no practices of arbritation based upon Islamic law exist. The study was conducted for the Research and Documentation Center of the Ministry of Justice. According to the authors an official legal institute for all Muslims in the Netherlands is hardly possible due to the ethnic and religious diversity of Dutch Muslims. The researchers did find practices of consultation and mediation in which Muslims ask Islam scholars, imams but also family and friends for advice concerning issues they are confronted with in their daily lives. The assignment for the research was given after concerns about the possible existence of sharia courts. Although the report (for which 93 people were interviewed ranging from official spokespersons, individual Muslims, key informants and experts, in a relatively short period of time) removes much of these concerns in a letter accompanying the report for parliament, the Dutch Ministry of Justice assures its commitment to ensure that no ‘parallel’ societies can exist within the Netherlands in which people take the law into their own hands, or have a legal system that exists outside the Dutch legal order.

In order to understand contemporary practices of Sharia we have to look at the interplay between legal discourse and social practices. Do legal discourses have a decisive impact on people’s lives or are the legal texts irrelevant and how do the daily practices of people influence legal texts? How does the plurality of practices relate to people’s differences in geographic and ethnic backgrounds, local practices, interpretations and traditions and migration histories. For example with regard to marriages a few Muslims in the Netherlands have introduced the concept of Islamic marriages whereby a couple gets married in the presence of an imam. Viewed as obligatory according to Islamic law to have an imam present, this is actually a new practice that differs from practices in let’s say Morocco or Pakistan. We have little systematic knowledge of this re-invention of law practices in the Netherlands and we should view the report as the authors have stated as well, as a first step. Other researches for example pertain to Islamic house purchase loans in Britain and Shiite perspectives on Kinship and New Reproductive techniques.

In recent years in particular the development of a jurisprudence of minorities, fiqh al-aqalliyat has sparked much interest among Islamic scholars. It is the result of an acknowledgement among these scholars that classic Islamic law does not provide answers and solutions for Muslims living in countries without a Muslim majority. The fiqh al-aqalliyat is an attempt to reconstruct Islamic legal theories pertaining to questions of Islamic law among for example Muslims living in Europe. Nevertheless, many issues discussed under the label of jurisprudence of minorities are heavily debated in Muslim majority countries as well and fiqh al aqalliyat seems to make European Muslims as an exception instead of a case that might lead to a change in Islamic law as a whole. An important authoritative body in this regard is the European Council for Fatwa and Research headed by Yusuf al Qaradawi. ISIM Newsletter 12 contains some information and several references about this fiqh al-aqalliyat).

Since the reconstruction of Islamic law by Muslim minorities is partly based upon the questions and challenges they meet in their daily lives in Europe, this reconstruction cannot be understood without taking into account the debates about Sharia in wider society. The concept of Sharia is interpreted in the Netherlands in a very negative way. A few years ago when the then Minister of Justice Donner stated that if two-thirds of the country wants sharia, the Netherlands will have a sharia, he caused a very fierce and emotional debate in Dutch society. Although for many Muslims, but certainly not all, sharia means progress, dignity, justice and righteousness, order instead of chaos for many Dutch people Sharia is associated with medieval practices. And indeed to some extent Islamic laws are at odds with international human rights. On the other hand however the negative picture of sharia is unjustified because the reality of Islamic law practices is not as black and white as some critics suggest and for example application of sharia rules in some cases does not lead to restrictions for women (as is often feared) but also to a stronger position of women for example with regard to forced marriages. Also Islamic laws have mostly been very flexible throughout the ages and very easy to integrate with common law practices and some scholars therefore state that is no problem to integrate Islamic law with human rights. Furthermore, although it is quite understandable that the public focuses on cutting off hands, stoning women and son, sharia is mostly about how a believer prays, fasts, pays the alms tax, or performs the pilgrimage and other aspects involving people’s daily lives.

One of the issues at stake of course is whether we want to allow religious groups to settle their affairs amongst themselves or do we require them to go to civil courts for every issue? Should the Netherlands have a unitary legal system? If that really is the plea of the opponents of an Islamic legal system, then we should ban the Jewish courts and the courts of the Catholic church (as well as their pastoral services) as well. The Netherlands as many other European countries already have legal pluralism certainly when we take into account that informal local norms have always existed side by side and interacting with formal law. Important in this regard is that there has never been a call by Dutch Muslims to have separate family laws only for Muslims. Some practices such as polygamy have been dealt with in the past but there is no plea for a coherent legal system for Muslims. Even in the case of advice and mediation European laws in most cases define the answers given by Islamic scholars and imams for example in the case of divorce where the ECFR follows the principles of European law and have stated that Muslims must comply with the law of the country of residence. A research conducted a few years ago half of the research population of Muslims opted for a political party of Muslims and one third of them wanted the party based upon sharia; the answers however they gave on what exactly sharia is are so diverse that is impossible to define what it means if they say they want a party to be based upon sharia. The same differences in opinion were visible in a tv program about the report where the researchers discussed the item with other people. In this tv program British scholar Haitham al-Haddad was interviewed who stated that he was in favour of introducing Islamic legal system in Europe but that it was not feasible. His view was supported by one Muslim in the audience but contested by others who stated that they did not want to live under such interpretation of sharia (an interpretation that included penal laws such as cutting off hands) and who thought that harsh and cruel punishments are not necessary in contemporary circumstances.

There are of course real legal issues pertaining to minorities who, for example, with regard to marriage and divorce still have deal with both the legal system of the country of residence and of the country from which they come from. Sometimes these national laws are influenced by Islamic legal doctrines. It is to forbid polygamy in one country even when it is allowed (albeit restricted) in the country of birth. But what to do with the children a man has with his 2nd, 3rd or 4th wife? Islamic marriages may or may not be allowed, but the fact is that it is very easy to circumvent restrictive measures in a country such as the Netherlands that recognizes sustained, non-religious informal ways of co-habitating between people. It is easy to shout no to Sharia or be in favour of a unitary law, but reality on the ground is much more complex. At the same we already have special laws, or plans to that effect, pertaining to Muslims such as the ban on the burqa and niqab in schools, debates about a law against female circumcision (although not specifically an Islamic practice, in the Netherlands often Muslims (as an ethnic background) are involved) and debates about a law forbidding forced marriages). The crude Dutch debate over sharia that seem to be informed more by anxieties and frustrations, partly based upon misunderstandings of (the reconstruction of) Islamic law practices among Muslims, a one-sided negative portrayal of sharia in the media and fear of Islam and Islamization in general, blocks a thorough debate over those issues. This is nothing new of course, read for example Anna Korteweg’s article on the Sharia debate in Ontario,Canada, Katja Jansen Fredriksen’s article on Sharia in Norwegian Courtrooms,. A reasonable at this moment seems to be impossible because every little compromise over Islamic law practices is interpreted as a sign of islamization and a breach of Dutch culture.

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5 thoughts on “Re-inventing Islamic law practices in the Netherlands

  1. Who the ‘Hell” do Muslims think they are???They move to another country & want that Host Country to offer them their ‘Justice System'(Sharia-stoning, dismemberment)…What happened to the proverb; “When in Rome, do as the Romans do”???

  2. Yes – and it’s mis-informed by the myth that “Europe and the Netherlands are being Islamified.”

    First of all, there is nothing wrong with customs are traditions that have some religious basis. We have some of this with the canon law of the Catholic Church, which has its own law systems.

    Second, there are issues of reciprocal acceptance of legal standards of other nations. The best and recent example occurred with the European Arrest Warrant, and the acceptance of laws and standards between nations. Another example is the recombination of diplomas and standards for professions, such as practice of medicine. There maybe practices that cannot be accepted between nations due to national norms and legal systems that are very different, but these difference should be worked out whenever possible.

    Dutch Muslims are very much a part of Dutch society. They take part in the political and legal system that already exists, so they may not feel any need for a separate legal code. Only about a one-fourth of Dutch Muslims attend any mosque – and that could also be another factor. The Netherlands is not a very religious nation in any form.

  3. I read your blog while preparing for an assignment on Sociology of Religion and religious diversity. I wrote my own blog having read this piece. Here is my piece:

    Blog: Religious Diversity – Tolerance of Islam rather than Submission to Sharia Law

    Introduction

    Religious diversity is a problem in many countries. A tolerant approach accommodates for an increase in diversity. This piece will address the issue of Islamic minorities living in predominantly Christian European countries. It shall be proposed that the practise of Islam should be tolerated, but that countries should not submit to Sharia Law by incorporating it in domestic legal systems.

    Muslims in Europe

    It is essential to tolerate minority religions in order to integrate immigrant populations into society. Religious tolerance may be defined in two ways: a tacit acceptance of a restricted list of religious activities; or a positive affirmation of forms of religion different to the norm . The former is a more closed definition. It requires the country to accept a religion and allow it to be practised. However, the latter suggests that a host nation has a positive obligation to include a minority religion by making more drastic changes. A method of doing so would be the alteration of the legal or constitutional system . The present work proposes that this is a step too far.
    Religious freedom is a basic right. Both Christians and Muslims engage with religious activity and should be entitled to do so . However, tolerance does not entail wholesale acceptance of a religion. A host country should not be obliged to incorporate religious ideology and practices by means of legislation. This is a topical issue in relation to Islam.
    Muslims have migrated into Europe in recent years and represent a large minority religion in many countries . Islam is viewed as a way of life by many Muslims . In this sense they do not recognise the European distinction between public and private affairs relating to religion . Islam tends to have a more sweeping public role in society. However in Europe, religion does not have such a powerful public role. This poses a problem in relation to religious diversity. It has been seen that some Muslims seek for Sharia Law to be implemented in European countries. This would fit the broad definition of religious tolerance, that the host state must positively affirm Islamic law. However there should be no such expectation of European countries. Legislative implementation of a minority religious law is too much to ask.
    A move for such legislative implementation has been seen in Britain. A newspaper opinion poll revealed that 61% of Muslims want Sharia Law to be used in the work place . This is reflected in Ireland, where opinion polls on the Muslim Public Affairs Council website propose that Islamic Law should be used in civil cases . Although this cannot represent the views of all Muslims in these countries, this evidence shows that there is support for legislative implementation of Sharia Law.
    A more favourable approach may be seen in the Netherlands. In the liberal Dutch context, Islamic law is being reinvented . Instead of seeking to change the domestic law, there are moves to diversify Sharia Law and Islamic practice. This ameliorated approach attempts to assimilate a minority religion, without aggravating the domestic population. It is a more accurate practise of tolerance. The host nation agrees to allow Islamic practise, but it is up to the incoming Muslim population to alter their law if they wish to assimilate in society. There is no obligation on the nation which accepts these people to change its laws or constitution.

    Conclusion

    Religious diversity should be accommodated for by means of tolerance. Tolerance should be defined in a narrow sense, as an acceptance of religious activities. Minority religious laws, such as Islamic law, should not be incorporated in the legal system of European countries. The diversification of Islamic law in order to assimilate in a European country is an ameliorated approach, as seen in the Netherlands. The domestic country must tolerate Islam, while the minority attempts to diversify. Islam should be accepted in Europe to the extent that Muslims assimilate, rather than submitting to Sharia Law by means of legislation.

    Bibliography

    Beekers, D. Pedagogies of piety: Comparing young observant Muslims and Christians in the Netherlands’, Culture and Religion: An Interdisciplinary Journal, Vol. 15(1), 2014, pp. 72-99.

    Bradley, L. (2004, September 24). ‘Sharia Law in Ireland “if Muslims are the Majority”’. Irish Independent. Retrieved from http://www.independent.ie/

    Davie, G. Sociology of Religion: A Critical Agenda (Second Ed.), Sage Publications, 2013.

    De Koning, M. (2010, April 26). ‘Re-inventing Islamic law practices in the Netherlands’ [Blog post]. Retrieved from http://religionresearch.org/

    Guvelli, A. ‘Understanding the Religious Behaviour of Muslims in the Netherlands and the UK’. Sociology, Vol. 45 (6), 2011, pp. 1008-1027.

    Powers, P. R. ‘Interiors, Intentions, and the “Spirituality” of Islamic Ritual Practice’. Journal of the American Academy of Religion, Vol. 72 (2), 2004, pp. 425-459.

    Travis, A. and Bunting, M. (2004, November 30). ‘British Muslims want Islamic Law and prayers at work’. The Guardian. Retrieved from http://theguardian.com/

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