Radboud University Nijmegen, the Netherlands, hosted a debate last week on the topic of Sharia(‘s) in the West. In the introduction of the debate, it was said that:
For many citizens of Western countries the concept of Shari’a is tantamount to violation of human rights. For them, religious and secular laws simply don’t go together. Period. No wonder that Rowan Williams, Archbishop of Canterbury, met with criticism and condemnation when, in 2008, he remarked that it would be ‘inevitable’ to adopt elements of Islamic family law into the British legal system.
And yet, only a few decades ago Western countries also upheld religiously inspired laws which provided for matters of marriage, child rearing and divorce. Since then, most of these laws have been abolished or adapted to achieve more individual freedom and a higher degree of equality between men and women. As a result, the whole domain of family law has been secularized en individualized.
Many Muslims living in Western countries find it hard to accept this state of affairs. They take it for granted that family matters must be settled according to religious rules and regulations. They therefore try to achieve some legal autonomy in these matters by appealing to the freedom of religion and anti-discrimination laws. Is this appeal justified? How should a modern secular State respond to the wishes and principles of religious minorities?
I have some doubts about the last paragraph. In the Netherlands there have been no claims to implement Sharia based rules and I this is the case in most European countries and there is a lot of resistance among Muslims about it as well.
In his lecture, John Witte, specialist in family law and religious freedom, gave his views on these matters. Piet Hein van Kempen and Jan Jaap de Ruiter responded.
This compromise on religion and education, forged painfully over a half century of wrangling, has some bearing on questions of religion and marriage. Marriage, like education, is not a state monopoly. Religious parties have always had the right to marry in a religious sanctuary or before a state official. Religious officials have long had the right to participate in the weddings, annulments, divorces and custody battles of their voluntary members. But the state has also long set the threshold requirements of what marriage is and who may participate. Religious officials may add to these state law requirements but not subtract from them. A minister may insist on premarital counseling before a wedding, even if the state will marry a couple without it. But if a minister bullies a minor to marry out of religious duty, the state could throw him in jail. A rabbi may encourage a bickering couple to repent and reconcile, but she cannot prevent them from filing for divorce. An imam may preach of the beauties of polygamy, but if he knowingly presides over a polygamous union, he is an accessory to crime.
However sympathetic I find the essay of professor Witte, I am not convinced of the idea of acommodating Sharia or part of Sharia law in the Dutch legal system. In practice it concerns nearly always family law and exactly in this legal domain there are some very sensitive issues to consider, the most important of which the status of women. Islamic law is not compatible with Dutch law when it concerns women. In numerous instances Sharia holds to her half the authority or power that she accords to Muslim men. In court her witness counts as half a man’s witness. In cases like marriage, children, divorce and inheritance she is in a permanent inferiority position. The way to apply for divorce is so much easier for Muslim men than for women, and inheritance laws foresee half the share of men for women.
Prof John Witte is Professor of Law at Emory University, Atlanta, US, and a specialist in religious freedom , history of law and marital law. He is Director of the Center for the Study of Law and Religion, one the world’s largest research programs on religion and human rights. His publications have been translated into several languages. A much sought-after speaker, John Witte was elected Teacher of the Year by students of Emory Law ten times.
Dr Jan Jaap de Ruiter is Arabist at the University of Tilburg. His main interest is in the status and role of the Arabic language and of Islam in Western Europe and Morocco.
Prof dr Piet Hein van Kempen is Professor of Criminal Law and Criminal Procedure and Professor of Human Rights Law at the Radboud University Nijmegen.