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.