islam.and.political book

Islam and PolItIcal-cultural EuroPE

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Islam and Political-cultural Europe

Edited by

W. colE durham, Jr.Brigham Young University, USA

davId m. KIrKham Brigham Young University, USA

torE lIndholmUniversity of Oslo, Norway

III

Printed and bound in Great Britain by the mPG Books Group, uK.

© W. cole durham, Jr., david m. Kirkham,tore lindholm and the contributors 2012

all rights reserved. no part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher.

W. cole durham, Jr., david m. Kirkham and tore lindholm have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work.

Published by ashgate Publishing limited ashgate Publishing companyWey court East 110 cherry streetunion road suite 3–1Farnham Burlington, vt 05401–3818surrey, Gu9 7Pt usaEngland

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British Library Cataloguing in Publication Datadurham, W. cole, 1948– Islam and political-cultural Europe. 1. muslims – Europe – social conditions – 21st century. 2. muslims – cultural assimilation – Europe. 3. Islam and civil society – Europe. I. title II. Kirkham, david m. III. lindholm, tore. 305.6’97’094–dc23

Library of Congress Cataloging-in-Publication DataIslam and political-cultural Europe / edited by W. cole durham, Jr., david m. Kirkham and tore lindholm. p. cm. Includes bibliographical references and index. IsBn 978–1–4094–5299–7 (hardcover : alk. paper) 1. Islam – Europe. 2. muslims – Europe. 3. Political culture – Europe. 4. muslims – legal status, laws, etc. – Europe. I. durham, W. cole, 1948– II. Kirkham, david m. III. lindholm, tore. BP65.a1I646 2013 305.6’97094–dc23

IsBn 9781409452997 (hbk)IsBn 9781409453000 (ebk – PdF)IsBn 9781409472315 (ebk – ePuB)

Contents

List of Contributors viiAcknowledgments xiiiList of Abbreviations xv

Introduction 1David M. Kirkham

Part I Islam and legal and PolItIcal culture In euroPean socIety: an overvIew

1 Liberal Secularism and European Islam: A Challenge to Muslims and Non-Muslims 7

Heiner Bielefeldt

2 Muslim Minorities and Democracy: Battle of Memories versus Genuine Integration 21 Guy Haarscher

Part II law and PolItIcs: country case studIes

3 Islam and the Law in Germany and Europe 47 Mathias Rohe

4 Muslims in Belgium 71 Rik Torfs

5 Private International Law: When Choice of Law Principles Invoke Islamic Rules—A French Perspective 87 Isabelle Barrière Brousse

Part III educatIon and FInance

6 The Training of Imams 107 Silvio Ferrari

Islam and Political-Cultural Europevi

7 Secularism,SchoolsandReligiousAffiliation:Fora Demanding Account of Law no. 2004-228 of March 15, 2004 117 Alain Garay

8 Religion, Education, and the Turkish Constitution: A Critical Assessment 147 Levent Köker

9 Islamic Religious Education in Bosnia and Herzegovina: Between Coexistence and Segregation 165 Önder Çetin

10 Islamic Banking and Finance: Transplantable Models from Malaysia to the EU? 189

Stefan Messmann

Part Iv extremIsm and securIty

11 The Danish Cartoons Crisis Revisited 217 Lisbet Christoffersen

12 Islam, Muslims and Islamism: On Culturalization and Securitization 229 Petra Weyland

13 Countering Extremist Ideological Foundations for Terrorism: SomeReflections 245

Sharyl Cross

Bibliography 265Index 281

List of Contributors

Heiner Bielefeldt is the present United Nations Special Rapporteur for Freedom of Religion and Belief and a professor of human rights and human-rights policy at the Friedrich-Alexander University of Erlangen-Nuremberg. He has also served as the director of the German Institute for Human Rights, the Chair of Public Law and Legal Philosophy at the University of Bielefeld, and worked at the University of Mannheim. Professor Bielefeldt is involved in interfaith dialogue and is a member of the Trustees of the Muslim Academy in Germany and the Trustees of the Christian-Islamic society. He studied philosophy, theology, and history at the Universities of Bonn and Tübingen (Germany) where he received a Ph.D. Among his publications are several books on political philosophy and human rights. He is also currently a member of the advisory board of the Journal of Human Rights.

Isabelle Barrière Brousse is a professor at Paul Cézanne University Aix Marseille II and Deputy Director of the Peter Kayser Center. She is also an associate member of the CREDIMI Centre du droit des marchés et des investissements internationaux, Dijon, France. Her main field of research is private international law. Professor Brousse recently published “Le Traité de Lisbonne et le Droit International Privé” in the Journal du Droit International (1/2010, 3–34) and “Le juge civil français face aux règles religieuses,” in Annuaire Droit et Religions, Vol. 4, 2009–10 PUAM, 399–412.

Önder Çetin is a professor at Fatih University in Istanbul. He is a member of the Islam in South East Europe Forum and the Association for the Study of Nationalities. He received his bachelor’s degree in international relations from Faith University, his MA in conflict analysis and resolution from Sabanci University, and his Ph.D. from Leiden University in the Netherlands. Professor Çetin has published numerous scholarly articles and contributed books on ethno-religious conflicts, religious peace building, religious nationalism in the Balkans and Islam in South-East Europe.

Lisbet Christoffersen is a professor of law, religion and society at the Department of Society and Globalization at Roskilde University. She is also adjunct professor of law and religions with ecclesiastical law at the University of Copenhagen. Professor Christofferson has published over 100 articles and edited various books on issues of law and religion.

Sharyl Cross is a professor at the George C. Marshall European Center for Security Studies where she directed a multi-year project on countering violent

Islam and Political-Cultural Europeviii

and extremist ideology, involving participation from more than 60 nations. She lectures at the NATO school in Germany, is a tenured full professor in political science at San Jose State University, and was a visiting distinguished professor of political science at the United States Air Force Academy. Professor Cross earned a Ph.D. in political science from UCLA and held a post-doctoral fellowship at the Hoover Institution at Stanford University. She has consulted for the US State Department, Office of the Secretary of Defense, and United States European Command on terrorism and other international security topics. She has co-edited on international security topics with specialists from Russia and China, and she has published books and articles in various journals in several countries.

W. Cole Durham, Jr. is the director of the International Center for Law and Religion Studies and the Susa Young Gates University Professor of Law at J. Reuben Clark Law School, Brigham Young University. Professor Durham’s multiple responsibilities include serving as member of the OSCE/ODIHR Advisory Council on Freedom of Religion or Belief, and as vice president of the International Consortium for Law and Religion Studies. A graduate of Harvard College and Harvard Law School, Professor Durham has been heavily involved in comparative constitutional law and church-state relations throughout his career. He has published widely on comparative law and has served as secretary of the American Society of Comparative Law and as the chair of both the Comparative Law Section and the Law and Religion Section of the American Association of Law Schools. He is a member of several US and international advisory boards dealing with religious freedom and church-state relations.

Silvio Ferrari is a professor at the Universities of Milan and Leuven, where he teaches Law and Religion and Canon Law. He has been visiting professor in Paris (École Pratique des Hautes Études) and Berkeley (University of California) and works for many international organizations, including the European Union and the Organization for the Security and Cooperation in Europe. He is the President of ICLARS (International Consortium for Law and Religion Studies) and a co-founder of the European Consortium for Church and State Research. Professor Ferrari is a member of the Scientific Committee of the Institut Européen en Sciences des Religions (EPHE, Paris) and of the Board of Expert of the International Religious Liberty Association. His main fields of interest are law and religion issues in Western Europe, comparative law of religions, and relations between Israel and the Vatican.

Alain Garay is a French lawyer at the Court of Appeals of Paris and teaches religious affairs law at the University of Aix-Marseille III. He is the French expert for the OSCE/ODIHR and a member of the OSCE steering committee. He has also had consultative status with the United Nations and Council of Europe. Professor Garay is a member of the editorial boards of the Directory of Law and Religion and Consciousness and Freedom. He graduated from the Institut d’Etudes Politiques de Bordeaux, is a Graduate of the National Tax, and is a Master of Science, Law

List of Contributors ix

and Social Change from the University Aix-Marseille III. Professor Garay has published over 40 articles in various scholarly journals.

Guy Haarscher is a professor of philosophy and law who has taught in his native Brussels at the European Academy for the Theory of Law and at the Central European University in Budapest. He also lectured as a visiting fellow at both the Australian National University and Duke University in North Carolina. Professor Haarscher is the author of several articles and books. He received the Belgian Academy prize in 1981 for his book on Marx and the prize from the French-Speaking Community of Belgium in 1989 for his book on human rights.

David M. Kirkham, Ph.D., J.D., is Senior Fellow for Comparative Law and International Policy at the BYU International Center for Law and Religion Studies, BYU Law School, and BYU Associate Professor of Political Science. David has served as Associate Dean and Professor of International Politics and Democratic Studies at the George C. Marshall European Center for Security Studies in Garmisch-Partenkirchen, Germany; as Director of International Plans and Programs, Director of International History, and Associate Professor of History at the United States Air Force Academy, and as a Senior Humanitarian Affairs Officer at the United Nations Office for the Coordination of Humanitarian Affairs in Geneva, Switzerland. He has published numerous articles and edited several books on various aspects of international affairs, human rights, democratization, and religious freedom.

Levent Köker is a professor of public law and political theory at Atilim University in Turkey. He has also taught at the Gazi University, Middle East Technical University, Billkent University, Ankara University, and Near East University Law School. He graduated from Ankara University in law and political science. He was a visiting scholar at Mansfield College, Oxford University and a Fulbright fellow at Princeton University Center of International Studies. He has published many articles on democracy and governance in both Turkish and English.

Tore Lindholm is emeritus professor (philosophy) at the Norwegian Centre for Human Rights, University of Oslo and a board member of the Oslo Coalition on Freedom of Religion or Belief and of the Human Rights Committee of the Church of Norway. His research interests focus on (1) the grounds for embracing universal human rights, and in particular the right to freedom of religion or belief; and (2) the two-way traffic between human rights and religions (especially Christianity and Islam). He co-edited, with Cole Durham and Bahia Tahzib-Lie, Facilitating Freedom of Religion or Belief: A Deskbook (2004), published also in Indonesian and Russian with a Chinese translation under way. Lindholm co-initiated and sat on the steering committee of the Norwegian Research Council Research Program in Ethics 1990–2001. He also co-edited Islamic Law Reform and Human Rights: Challenges and Rejoinders (1993) and co-published Religious Commitment and

Islam and Political-Cultural Europex

Social Integration: Are There Significant Links? A Pilot Study of Muslims in the Oslo Area with a Family Background from Pakistan (2011). He has written numerous other articles on ethics and human rights.

Stefan Messmann, Professor of International Business Law at Central European University (CEU) in Budapest since 1998, is currently head of the CEU Legal Studies Department. He also served as Academic Pro-Rector of CEU between 1999 and 2003. Professor Messmann was born in Serbia, educated in Germany and Switzerland and is of German nationality. He obtained his License en droit 1970 in Geneva and his Doctorat en droit 1978 in Fribourg. Before joining CEU, he held senior international legal and executive positions with Volkswagen in China and Germany and with Umformtechnkik GmbH in Germany. Speaking several languages, Professor Messmann has extensively written and lectured on finance, business and international law in Eastern Europe and Southeast Asia, including on foot-binding practices and Jews in China. In 2006, he received the Dr. Elemér Hantos Prize (http://www.hantosprize.org) for co-editing, with Professor Tibor Tajti, the book “Investing in South Eastern Europe”. He is also Co-Editor and a member of the Advisory Board of the European Journal of Sinology.

Mathias Rohe is a professor of civil law, private international and comparative law at the Friedrich-Alexander University Erlangen-Nuremberg where he has served in the Office of the Dean of the Faculty of Law. He was also judge on the Court of Appeals at Nuremberg from 2001 to 2007. He is the founding director of the Erlangen Center for Islam and the Law in Europe, is a trustee of the Christian-Islamic Society, and is the co-founder and former president of the Society for Arab and Islamic Law (GAIR). Professor Rohe studied law and Islamic studies in Damascus and Tubingen and earned a Ph.D. in private international law. His research interests focus on the legal status of Islam in Germany and Europe.

Rik Torfs is a member of the Belgian Senate and a professor at the Catholic University of Leuven (Belgium), where he was Dean of the Faculty of Canon Law. He has been a visiting professor at both the University of Strasbourg in France and the University of Stellenbosch in South Africa. In 2009 he became a member of the Commission for Intercultural Dialogue (Assises de l’Interculturalité) of the Belgian government. Professor Torfs is the author of nearly 350 articles and numerous books dealing with canon law, law, and Church and State relationships. He is also the editor of the European Journal for Church and State Research, is a member of the Board of Directors of the European Consortium for State-Church Research, and is a newspaper columnist and has been the host of his own television program.

Petra Weyland is a professor of Middle Eastern affairs in the George C. Marshall Center’s College of International and Security Studies. She has also been a professor at the German Armed Forces Command and Staff College and a lecturer and research fellow at the Universities of Bielefeld and Hamburg. Earlier Professor

List of Contributors xi

Weyland was a research fellow at the German Orient Institute in Istanbul and at the American University in Cairo where she researched Egyptian labor migration to Iraq. She received her Ph.D. in Social Anthropology from the University of Bielefeld, Germany and a Master of Arts degree in Islamic Sciences from the University of Bonn, Germany. Her expertise is in Islam, the peace process in the Middle East, civil-military cooperation, and intercultural competence.

Acknowledgments

Islam and Political-Cultural Europe is the product of well-studied minds and devoted hands. In addition to the author contributors, we would like to thank those who over many months contributed editing, organization, translation, and other talents to the making of this volume. Jordan Teuscher, Chris Sorensen, and Keith Allred played multiple roles: Jordan as editor, proofreader, and technician; Chris as editor, designer, and translator; Keith as editor and substantive content consultant. Aaron Worthen, Rebecca Skabelund and Elizabeth Willian also logged in untold hours with fine writing, editing, and revision skills.

Many of these contributed to this book’s forerunner, the 2012 Ashgate publication Islam, Europe and Emerging Legal Issues. Christine Scott, an editor of the first book, also cast a keen editor’s eye on first drafts of the Bielefeldt, Garay, and Haarscher chapters in this volume. Chad McFadyen, Joseph Leavitt, and Julie Slater contributed quality editing to both books. Shadman Bashir, in addition to providing guidance on cultural sensitivities, was the inspiration behind the cover design of both. Kristy Stewart took on the challenging task of indexing, with all its complexities for these types of work.

We also very much appreciate the support of colleagues at the Brigham Young University Law School International Center for Law and Religion Studies, especially Deborah Wright, head administrative assistant, and Donlu Thayer, staff attorney and the Center’s managing editor. Their smart contributions saved us many hours of otherwise tedious labor.

The Ashgate editorial and publishing support team more than merits our deep gratitude. These include (along with those whose off-stage contributions we never saw) Beatrice Beaup, Sophie Lumley, Celia Barlow, and contract editor Albert Stewart, all of whose work came together under the ever steady guidance of Sarah Lloyd who has led the way for the production of both books.

Members of the Strasbourg Consortium for Freedom of Conscience and Religion at the European Court of Human Rights (http://www.strasbourgconsortium.org/) and the Norwegian Center for Human Rights (http://www.jus.uio.no/smr/english/) also contributed to the conception and completion of both works.

Finally, our families have, without complaint, stood by or retired alone during more late nights of extra labor than good people should have to endure from those who love them. Yet support us they have and we thank them from our hearts.

W. Cole Durham, Jr.David M. Kirkham

Tore Lindholm

List of Abbreviations

AIDLR NationalOfficeoftheInternationalAssociationfortheDefenseofReligious Liberty

AKP JusticeandDevelopmentParty,TurkeyBAFIA BankingandFinancialInstitutionsActof1989BBC BritishBroadcastingCompanyBGB GermanCivilCodeBNM BankNegaraMalaysiaCASD CenterforHighDefenseStudiesCESEDA CodeEntryandStayofForeignersandAsylumCIST CounteringIdeologicalSupportforTerrorismCOE-DAT CenterforExcellenceDefenseAgainstTerrorismDITIB DiyanetIsleriTurkIslamBirligiDOD DepartmentofDefenseDM DeutschemarkECHR European Convention for the Protection of Human Rights and

FundamentalFreedoms(EuropeanConventiononHumanRights)ECTS EuropeanCreditTransferSystemEGBGB IntroductoryLawtoGermanCivilCodeEMB IslamicCulturalCenterofBelgiumEU EuropeanUnionEUR EuroEUMC EuropeanMonitoringCenteronRacismandXenophobiaGE GeneralElectricGWOT GlobalWaronTerrorismHKD Hong Kong DollarIBA IslamicBankingActof1983IC IslamicCommunityICC BelgianIslamicCulturalCenterICPR InternationalConventiononCivilandPoliticalRightsIDB IslamicDevelopmentBankIHF InternationalHelsinkiFederationofHumanRightsIICA InvestmentsCompanyoftheGulf(Bahamas)LIBOR LondonInterbankOfficialRateNATO NorthAmericanTradeOrganizationNGO Non-governmentalOrganizationNSAC NationalSharī’aAdvisoryCouncilonIslamicBankingandTakafulOHR OfficeoftheHighRepresentativeoftheUnitedNationsinBosnia

andHerzegovina

Islam and Political-Cultural Europexvi

OIC OrganizationoftheIslamicConferenceOSCE OrganizationforSecurityandCooperationinEuropePFE PartnershipforFinancialExcellencePIL PrivateInternationalLawRS RepublicofSerbia,withinBosniaSGB SocialCodeofGreatBritainTCC TurkishConstitutionalCourtTGNA TurkishGrandNationalAssemblyUAE UnitedArabEmiratesUCC UniversiteCatholiquedeLouvainUDBA BosnianStateSecurityDirectorateUDHR UniversalDeclarationonHumanRightsUK UnitedKingdomUN UnitedNationsUNESCO UnitedNationsEducational,Scientific,andCulturalOrganizationUS UnitedStatesUSD UnitedStatesDollarVRT FlemishPublicRadioandTelevisionWMD WeaponsofMassDestruction

IntroductionDavid M. Kirkham

The “Arab Spring” of 2011 and its continuation, now a year later, into summer, autumn, winter, and spring again, have highlighted to observers the world over what Europeans have been seeing for many years: the significant forces of democratic and Islamic culture meeting together on the same playing field. Whether this meeting will ultimately be as allies or cultural rivals remains to be seen. “What happened in the Arab world in 2011 was stunning,” writes Kenneth M. Pollack. “Wondrous things happened. Tragic things happened. Other things happened that only time will tell if they were good, bad, or something else entirely. The result is that the Middle East will never be the same.”1

And likely neither will the rest of the world. But in Europe these forces have been at play now for decades, often (though not always) without the drama and flair of events in Egypt, Tunisia, Libya, Yemen, or Syria, but steady and in deeply significant ways nonetheless. For observers, these developments can lead to a certain amount of cognitive dissonance. The conceptions of side-by-side Islamism (or political Islam) and an increasingly secular Europe can be difficult for Western minds to reconcile, and yet they have come together for twenty-first century Europeans in ways that demand understanding and accommodation—as anything less would prove unhappy for all.

Islam and Political-Cultural Europe, a follow-up to Ashgate’s 2012 publication Islam, Europe and Emerging Legal Issues, takes on the challenge of seeking and explaining real keys to this understanding. Whereas Emerging Legal Issues focused primarily on Islam before the European Court of Human Rights, however, this volume extends the discussion beyond law alone to other political and cultural forces, the understanding of which is prerequisite to a long-term, congenial cohabitation of modern European and Islamic societies.

The contributors to this book have made every effort to be fair and complete in their analyses of those forces currently manifest within European borders. Politics, law, education, macro-finance, and security questions feature prominently in the discussions here entertained. The writers, keen observers who include some of Europe’s foremost scholars on the subject, have spared neither criticism nor commendation of both the secular and religious forces at work in the post-World War European transformation. The book begins, in fact, with an assumption that Islam, though not the lone cultural holdout, is certainly most

1 Kenneth M. Pollack, The Arab Awakening: America and the Transformation of the Middle East. Washington, D.C.: Brookings Institution, 2011, xi.

Islam and Political-Cultural Europe2

prominent in its resistance to the amalgamation of ideas and ideals taking place in modern Europe. The violence, unjustly blamed on but irretrievably associated with Muslims in the minds of many Europeans, has all the more underlined the need for the perspectives of mutual understanding found here.

Those perspectives fittingly begin with Heiner Bielefeldt, UN Special Rapporteur on Freedom of Religion or Belief, who, in Chapter 1, sheds light on Muslim understanding, even appreciation of the secular state, refuting the stereotype that Islam is per se opposed to secularist governmental and social constructs that provide religious freedom for all. Bielefeldt’s analysis creates a link between a stronger secularism and freedom for religious minorities. In Chapter 2, Professor Guy Haarscher carries forward the theme of religious freedom, addressing the complicated issues, now manifest in Europe, which arise from an inevitable tangle of religion and state.

While Europe as a whole faces the challenges addressed in these introductory chapters, individual states are deciding, under the influence of their own unique cultures and governments, the extent to which the law should influence or be influenced by Islamic subculture. Case studies in the second section of the book examine this process for three key countries. Professor Mathias Rohe discusses alternative approaches that European Muslims have taken to their societies and calls for optimism in Germany, where he sees a broad space for religious life and norms, and where majorities of both Muslims and non-Muslims strive for peaceful coexistence. Belgium, on the other hand, as explicated in Chapter 4 by Belgian Senator and Professor Rik Torfs, is struggling to establish effective relations between Islam and the government. In the context of an extensive chronology of Muslim efforts towards official recognition, Professor Torfs explains how Islam was forced to construct a representative body, unnatural to its organization as a non-hierarchical religion, in order to interact with the government. Though Islam is one of six legally recognized religions in Belgium, the recognition process inadvertently marks it as a second-tier religion. Similarly, within a framework of private international legal analysis, Professor Isabelle Barrière Brousse finds conflict between French, African and Islamic law, as France attempts to balance cultural concerns surrounding issues such as divorce and polygamy.

An understanding of Europe’s laws and political culture with regard to Islam must consider more than governmental and legal structure, however. In any developing subculture, two needs invariably arise: needs for education and for financial security. In Part III, Chapter 6, Professor Silvio Ferrari examines the training of Muslim imams in Western Europe. Religious training alone, he notes, as in the case of non-Muslim clergy, will not suffice. State education for imams improves assimilation as local language, history, and culture are passed down within the Muslim community. This sort of cultural understanding, says Ferrari, is critical. Without it, flare-ups and antagonisms occur of the kind addressed by Alain Garay in Chapter 7. Garay discusses how, in hindsight, the 2004 French law restricting the wearing of religious dress and symbols in public elementary schools

Introduction 3

poses major obstacles for Muslims, revealing the almost inevitable conflict that occurs when two cultures living side by side do not understand one another.

Turkey also finds itself at a crossroads when it comes to religion and education. Professor Levent Köker, in Chapter 8, examines alleged violations of freedom of religion in educational provisions of the Turkish Constitution. Though the governing document provides for both compulsory and optional religious instruction, the relevant clause is left open to an interpretation that often excludes religious minorities. For such countries, at a seeming stalemate regarding the intersection of religion and educational issues, Dr. Őnder Çetin holds up a more optimistic example in Bosnia and Herzegovina. A country which of necessity already has integrated traditional Islamic education with modern educational structures, Bosnia and Herzegovina provides a roadmap that other nations might adapt and adopt. By way of further example, Professor Stefan Messmann urges in Chapter 10 that the finance world take advantage of the tried and proven practices and policies of Malaysia. According to Messmann, Malaysia offers the best model for transplanting Islamic banking and finance to the European Union because this model is not exclusively Muslim; rather it embraces coexisting legal and financial systems.

Beyond these institutional issues posed by Islamic growth in Europe the concerns that weigh most on many Western minds are the potential or supposed threats of religious extremism. Professor Lisbet Christoffersen initiates a dialogue on this topic by revisiting the Danish cartoon crisis of 2005 and its aftermath. She argues that the resulting debate about freedom of speech and blasphemy contributed to a schism between secularists and religionists in Europe and, perhaps unfairly, marked Islam as a national security issue. Further challenging Europe to reexamine its relationships between religion and society, Professor Petra Weyland, in Chapter 12 traces the alienation of Muslim communities in Europe to Western (and some Muslim) attitudes that Islamic traditions are simply incompatible with modern, secular culture. Professor Sharyl Cross concludes the discussion with suggestions for countering ideological support for extremism, noting that Europe must not alienate moderate Islam and can avoid doing so through “unprecedented levels of agreement regarding major objectives, communication, and coordination among nations committed to protecting the world community” from terrorism. Such cooperation will require greater international and inter-cultural communication, interfaith dialogue, and consistency in policy application, which will in turn produce more meaningful, respectful and effective counterterrorism efforts.

The Arab Spring has revealed turmoil in the domestic politics of Middle Eastern nations unknown on such a scale since perhaps the end of the First World War. When Western democracy and traditional cultures come together, there must be adaptation on both sides for either to survive. It has been noted that in many Middle Eastern countries, “mainstream Islamist groups operate as a kind of state within a state with their own set of parallel institutions, including hospitals, schools, banks, businesses, cooperatives, day care centers, social clubs, facilities for the disabled and even boy scout troops. Millions of people across the


region depend on these vast social infrastructures.”2 The question remains how far Europe is willing and should be willing to accommodate similar developments in its midst. Either too much or too little assimilation of cultural subgroups can threaten democratic institutions. Islam and Political-Cultural Europe presupposes a need for reasoned, informed dialogue and introduces the thinking and interests of peoples of goodwill to this multi-faceted question.

2 Shadi Hamid, “Islamists and the Brotherhood: Political Islam and the Arab Spring,” in Pollack, 31.

Part I Islam and Legal and Political Culture in European Society:

an Overview

Chapter 1

Liberal Secularism and European Islam: A Challenge to Muslims and Non-Muslims

Heiner Bielefeldt

A Contentious Concept

Few political concepts have been subjected to more contentious interpretations than the term “secularism.” This is due not only to the long and complicated history of that concept,1 but also to the fact that for a period of more than a century positive or negative attitudes towards secularism used to mark the watershed between conflicting political and ideological camps in Western European societies. Whereas some associated the process of political secularization with civilizational progress and liberation from religious authoritarianism, others feared a general loss of traditional religious values in society or even the advent of an era of nihilism. During the German “Kulturkampf,” which peaked in the 1870s, the concept of secularism functioned as the “Shibboleth” between the fighting movements of liberal nationalism and political Catholicism, as Hermann Lübbe has pointed out. Similar ideo logical battles occurred in other European countries as well, most notably in France, a country which during the nineteenth century was heavily torn between the Catholic tradition and the anti-clerical heritage of parts of the French enlightenment.2

In the course of the twentieth century, the situation changed considerably as political secularism became more and more commonly accepted as an inherent part of the self-description and self-understanding of European political culture. It is meanwhile largely supported by mainstream Christian churches as well. And yet, it would be a mistake to assume that the concept of secularism has altogether lost its function as a marker of a particular political identity. What has in fact changed is that, instead of serving to distinguish ideological and political camps within Western European societies, secularism is now often invoked to define Western political culture as a whole. At times, this leads to placing the “secularized West” in a more or less irreconcilable antagonism to “non-Western” political cultures based on religious values and norms. For instance, in Samuel Huntington’s global political map, the secular state is located as an exclusive characteristic of what he

1 Compare H. Lübbe. Säkularisierung. Geschichte eines ideenpolitischen Begriffs. Freiburg: Alber, 1965.

2 Compare J. Baubérot. La Laicité, Quel Heritage? De 1789 A Nos Jours. Geneva: Labor et Fides, 1990, 37.


calls “the Western civilization,” which thereby supposedly differs essentially from other civilizations, most notably Islam.3 Naturally, such a point of view—which, incidentally, is shared by quite a number of Muslim authors as well—has disturbing consequences for European Muslims, because it seems to preclude them from the very possibility of integrating into the cultural and political framework of European constitutions.

The purpose of this chapter is to form a non-polemical, “liberal” understanding of political secularism based on freedom of religion or belief. I will point out that secularism is indeed a significant component of a European liberal democratic political order. To preserve its liberal nature, however, political secularism must be clearly distinguished, first, from various secular “doctrines” and, second, from cultural essentialist claims of secularism being an exclusively “Occidental” (or Christian) achievement. Subsequently, I will give examples of an appreciation of political secularism from religious perspectives, including Islamic perspectives.

The Liberal Concept of Political Secularism

The Secular Principle of Respectful Non-Identification

In modern liberal democracies secularism has the status of a second order principle. This is to say that, rather than constituting a purpose in itself, political secularism derives from a more important (first order) principle, namely freedom of religion or belief, which itself has received international recognition as a universal human right.4 Bearing this sequence in mind is important for preserving the liberal essence of political secularism against ideologies which take secularism as the paramount principle to which even freedom of religion or belief or other human rights are to be subjected.

Against a typical misunderstanding, it should further be noted that, as a human right, freedom of religion or belief is not confined to any particular domain of human life, say, the private sphere or the realm of inner conviction. Beyond the rights to choose, change and have a personal inner conviction, freedom of religion or belief includes everybody’s right to shape their lives in conformity with the requirements of their religious or non-religious belief systems, provided this

3 Compare S.P. Huntington. The Clash of Civilizations and the Remaking of World Order. New York: Simon & Schuster, 1996, 42.

4 Compare article 18 of the 1948 Universal Declaration of Human Rights (UDHR) and article 18 of the International Covenant on Civil and Political Rights (ICCPR). For a comprehensive discussion, see T. Lindholm, et al., editors. Philosophical and religious justifications of freedom of religion or belief, in Facilitating Freedom of Religion or Belief: A Deskbook. Leiden: Martinus Nijhoff Publishers, 2004.

Liberal Secularism and European Islam 9

does not infringe on the fundamental rights and freedoms of others.5 Living in accordance with one’s religion or belief, however, in most cases involves aspects of communitarian and public life, such as forming and joining religious communities or conducting public processions, that is, external manifestations of a conviction which also fall into the field of freedom of religion or belief.6

Moreover, since all human rights express respect for the equal dignity and rights of all human beings,7 freedom of religion or belief also includes a concern for equality. This implies, among other requirements, that states should ensure that people of different religious or non-religious backgrounds enjoy equal rights and have equal opportunities to participate in public debates or hold political positions. It is for this reason that the state should not use and favor any particular religion (or set of religions, for example, monotheistic reli gions in general) as the normative basis of its political order. In other words, the state is required not to identify with any religion, which means that its order should be secular.8 The secular principle of non-identification of state and religion thus derives from the more general human rights principle of non-discrimination, which itself follows from the equality in dignity and fundamental rights of all human beings.

Since it is out of respect for the religious or non-religious convictions of the citizens that the secular state refrains from taking a par ticular religion as the basis of the political order, political secula rism has a substantial moral basis in freedom of religion or belief. Conservative critics, such as Carl Schmitt, are therefore wrong in describing the secu lar state in purely nega tive terms as the result of the modern “age of neutraliza tion,”9 in which reli gious and moral values, as Schmitt argues, have ceased to play a role in public life. Rather than aiming at a neutralization or privatization of religious values, political secularism is a second order consequence of freedom of religion or belief which itself points to the due respect for every person’s equal dig nity, a first order normative requirement on which the constitu tion of a secular democracy is ultimately based. The secular principle of non-identification should be appreciated as deriving from a genuinely moral concern. That is why it can be further qualified as a “prin ciple of respectful non-identification” of state and religion.

5 Compare D. Richter. Religions freiheit zwischen individueller Selbstbestimmung, Minderheitenschutz und Staatskirchenrecht—Völker- und verfassungsrechtliche Perspektiven. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, 146, 2001, 89–212.

6 Compare article 18 paragraph 3 ICCPR. 7 The starting point of the UDHR is “recognition of the inherent dignity and of the

equal and inalienable rights of all members of the human family” (preamble).8 Under international human rights law, the existence of a state religion does not per

se constitute a violation of freedom of religion or belief. However, states must ensure that this does not lead to de jure or de facto discrimination against followers of other religions or beliefs.

9 C. Schmitt. Der Begriff des Politischen. Berlin: Duncker & Humblot, 1963, 80.


Religion and Politics in Secular Democracy

Political secularism has often been misunderstood as implying a general privatization of religions. By taking freedom of religion or belief as the basis for an understanding of political secularism, it is possible to overcome that misconception, because freedom of religion or belief no doubt includes the right of persons and groups of individuals to publicly manifest their convictions and to participate in public debates. Thus, the possibility for religious communi ties to present themselves in the public sphere is not only in accordance with political secula rism, it follows indeed from the very principle on which secularism, as a liberal concept, is based.10 In addition, assuming that in a modern demo cracy the pu blic sphere is the place in which poli tics take place, it has been argued that religious communities, being part of a society’s pu blic life, also enjoy the right to participate in politics.11

Indeed, what political secularism requires is not an abstract sepa ration of religion and politics, but a clear separation of church (or any religious community) and state. This clarification proves highly important. People who, in the name of secula rism, call for a general separation of religion and politics or a privatization of religions or beliefs, possibly pave the way to a de facto marginalization of religion, which some want to be completely banned from the public sphere. Such a policy, however, would ultimately run counter to the liberal concept of politi cal secu la rism and could amount to an undue restriction of freedom of religion or belief.

Separation of reli gion and state has a liberating effect for both sides: It gives religious communities their independence from unwanted state inter ven tion, and it makes it possible for people across religious boun daries to enjoy their human rights without discrimination on religious grounds. Incidentally, such insti tu-tional separation does not preclude all forms of cooperation between state and reli gious communi ties, as long as the mutual indepen dence of both sides remains uncompromised. Take the German example: Alt hough in Germany an “established religion” does not exist,12 a tradition of close cooperation between the state and some reli gious communities continues to be comparatively strong. Such cooperation is

10 Compare A.A. An-Na’im. Islam and the Secular State: Negotiating the Future of Shari’a. Cambridge: Harvard University Press, 2008, 36.

11 Compare J. Casanova. Public Religions in the Modern World. Chicago: University of Chicago Press, 1994.

12 T he Weimar Constitution of 1919 abolished the system of established churches (which had existed before on the basis of the “jus reformandi,” according to which the territorial sovereign could decide on the official religion of his country). At the same time, religious denominations, rather than being treated as ordinary societal associations, can be accorded a special public corporate status (“Körperschaft des öffentlichen Rechts”) connected with a number of practical, financial and institutional privileges. This status, originally designed for Christian churches, has been opened for other denominations as well, provided they give, by virtue of their organization and membership, some guarantee


not per se a violation of the principle of respectful non-identification, provided it remains fair and inclusive, a provision which is not easy to fulfill.13

Anti-liberal Concepts of Secularism

Doctrinal Secularism

If we assume that political secularism is a second order principle based on respect for freedom of religion or belief, it follows that secularism cannot constitute a comprehensive belief system of its own.14 Indeed, political secularism, in its liberal understanding, clearly differs from various secular doctrines, most of which emerged in the nineteenth century when secularism was often propagated as a quasi-religious, post-religious or anti-religious weltanschauung, historically supe rior to traditional religions. For instance, the “Secular Society” founded in London in the mid-nine-teenth cen tury, and the “German Association for Ethi cal Culture” estab lished a few decades later, devoted themselves to a secularist missionary work com parable in its purpose and structure to the missio nary work of the Christian churches. The fact that the “Monistenbund,” a group of secularist-minded people headed by Dar win’s ar-dent dis ciple Ernst Haeckel, published their own “Monist Sunday Sermons,” reveals the quasi-religious claims of this compre hensive secularist welt anschau ung. One of the most prominent examples of doctrinal secularism is Auguste Comte’s vision of a new positivistic “Reli gion of Huma nity” (1851). Comte demands that scienti-fi cal ly trai ned sociolo gists work as “priests of humanity” and form a quasi-clerical

of durability. Compare G. Robbers. Religious Freedom in Germany. Brigham Young University Law Review. 2001, 643–68.

13 So far, Muslim religious com munities in Germany have largely been ex cluded from the established forms of cooperation. Mus lim organiza tions have therefore decided to use political and juri dical means in order to fight for equal treat ment. Compare H. Bielefeldt. Menschenrechte in der Einwanderungsgesellschaft. Plädoyer Für Einen Aufgeklärten Multikulturalismus. Bielefeld: Transcript Publishing House, 2007, 99ff.

14 To give an example: The German constitution proclaims in article 1 the inalienable dignity of every human being which the state is bound to respect and secure. The constitution does not con tain any guidelines, however, as to whether the profession of human dignity should be viewed in the light of the Bible, in accordance with the Qur’an, or by reference to non-reli gious huma nistic principles. It may be helpful to refer, in this context, to the di-stinction between the “liberal concept of political justice” and “comprehensive doctrines” which John Rawls has proposed. J. Rawls. Political Liberalism, New York City: Columbia University Press, 1993. Political secularism, I would argue, is part of the libe ral concept of justice, but should not be turned into a comprehen sive doctrine, as often happens. For a systematic integration of Rawls’s idea of “overlapping consensus” into the discussion of freedom of religion compare Lindholm, T. Philosophical and religious justifications of freedom of religion or belief, in Facilitating Freedom of Religion or Belief: A Deskbook, edited by T. Lindholm, et. al. Leiden: Martinus Nijhoff Publishers, 2004, 19–61.


secular hierarchy in order to propagate the post-Chri stian Trinitarian creed of “love, order and progress.”15 What is problematic from a human rights perspective is that Comte wants to actively involve the state apparatus for the purpose of implementing his world view. Indeed, his political goal of bringing about a “so cio cratic” unity of the state and the new secular doctrine mirrors the “theocratic” ideal of the French Catholic coun ter-revo lution, an ideal to which Comte extended respect and admiration, although he, at the same time, aspired to over come Catholicism and traditional religion in general. Expressing a techno cratic and authoritarian ideology, Comte’s doctrinal secularism is the opposite of the liberal concept of political secularism. For all his progressive rhetoric, Comte’s post-religious ideo logy is in fact anti-liberal. It is desi gned to replace supposedly “subversive” human rights with a codex of universally binding duties, and to submit the indivi dual to the worship of the collective whole of humani ty.

Relics of the nineteenth-century type of doctrinal secularism continue to play a role in contemporary political debates on reli gious issues. In Germany and other Western European countries, such tendencies most notably occur in current controversies about Islam. For instance, politicians opposing the spread of Islam and its visible sym bols in European societies often invoke the secu la r nature of the state as an argument to re ject demands for an active parti cipa tion of Muslims in the public sphere. Some go even farther by demanding that the public sphere be generally free from religious symbols. In that context, the notion of secularism can take on a more or less obvious authoritarian flavor.

The existence, past and present, of different forms of doctrinal secularism constitutes a major source of confusion in the controversy about the secular nature of the modern liberal state. In the interest of clarity, it is all the more important to keep the two concepts of secularism strictly apart. Whereas some forms of doctrinal secularism, such as Comte’s positivism, aspire to overcome religion altogether by placing themselves at the same time in the stead of religious traditions, the liberal-secular principle of respectful non-identification of the state with any particular religion or belief aims at facilitating equal freedom and participation for all individuals in a religiously and philosophically pluralistic democratic society. It is a political fairness principle in dealing with modern diversity and pluralism. Far from purging the public space of religious manifestations, political secularism further opens up opportunities for religious or belief communities to present themselves in the public realm and participate in general political debates.

Cultural “Occidentalization” of Political Secularism

As far as we know, secular constitutions were historically first established in North America and Western Europe. Hence it is quite natural to assume that the history

15 Compare A. Comte. Système de politique positive ou traité de sociologie, in Instituant la Religion de l’Humanité. Vol. 1. Osnabrück: Otto Zeller, 1967, 321–99.


of secularism in the West has something to do with the dominant religious and cultural traditions of the West, including above all the tradition of Christianity. Elements within Christianity which, in one way or another, are often said to have fostered the development of secular political constitutions include the Protestant critique of political clericalism, the conceptual distinction between “spiritual” and “temporal” authorities as it was worked out in the aftermath of the medieval Investiture Contest. The most frequently cited quotation in this context, however, is the words of Jesus: “Render unto Caesar the things which are Caesar’s; and unto God the things that are God’s.”16 This Biblical verse has often been invoked as the decisive “root” of what later developed into the separation of state and church.

However, without denying the significance of these and other elements of the Christian tradition within the historical development of political secularism, it would be problematic to turn them into indispensable cultural preconditions of modern secular constitutions. The history of political secularism cannot be appropriately described, in quasi-biological terms, as the process of a more or less organic “ripening process” of concepts deeply “rooted” in the Occidental tradition. Against such a quasi-biological interpretation of history, it is worth recalling that long-lasting political, cultural and religious conflicts in Europe were necessary to form a broad societal consensus on freedom of religion or belief, that is, the decisive human right on which modern secular constitutions are normatively based. For instance, the Catholic Church for more than a century pursued a course of fierce resistance to freedom of religion, which was condemned in the “Syllabus Errorum” of 1864 as one of the grave errors of the modern age.17 It was as late as during the Second Vatican Council (1962–65) that the Catholic Church officially endorsed freedom of religion or belief and the principle of political secularism.18 And it was only then that the majority of representatives of Catholicism could cite the word of Jesus, “Render unto Caesar the things that are Caesar’s,” as a retrospective theological justification of the modern secular state.

Besides leading to an oversimplified concept of history, the quasi-biological understanding of the genesis of political secularism harbors a number of systematic problems. The most serious problem is the particularization of the concept of political secularism. The “root” metaphor—as well as the way of reasoning it represents—actually suggests that political secularism remains essentially connected to a particular cultural “territory,” that is, the very territory in which the roots of what later developed into the first secular constitutions originally had

16 Matthew 22:21.17 H. Denzinger. Enchirodion Symbolorum Definitionum et Declarationum de Rebus

Fidei et Morum. Freiburg: Herder, 1965, 576.18 An English translation of the Vatican Council’s 1965 Declaration on Freedom of

Religion (“Dignitatis humanae”) is available at: www.vatican.va/.../ii_vatican_council/ documents/vat-ii_decl (accessed July 20, 2011).


gained ground.19 According to such an interpretation, it might seem that people from non-Western cultural backgrounds cannot have full access to political secularism, unless they are ready to adopt some supposedly “Western” achievements. To turn once more to the root metaphor, the recognition of political secularism outside of the West thus seems possible (if at all) only as the result of the “implantation” of achievements, whose exclusive cultural roots are said to lie in the West. It is not surprising that such an understanding actually constitutes a serious obstacle to the recognition of political secularism outside of the West.

Such an essentialist approach may in the end even lead to a “baptized” version of secularism by which the latter is simply, and exclusively, integrated into the Christian heritage and thus turned into a theological category. Examples of such “baptized” versions of secularism actually exist. For instance, the German Protestant theologian Wolfhart Pannenberg has suggested an understanding of political secularism that relates to the Christian tradition as not only the historical origin but also the cultural sine qua non of the modern secular state.20 Pannenberg argues that since it was the Christian tradition that has facilitated a culture of political secularism, Christianity should be recognized as the cultural center of the modern secular state. It may be an irony that, as a result of such a “dialectical turn,” it is the very secularism of the modern liberal state that becomes an argument for claiming privileged treatment of the Christian tradition as the cultural basis of the modern state and law.

Rather than constituting the result of an organic cultural “ripening process,” political secularism, based on freedom of religion or belief, can be more appropriately described as the specifically modern result of unfinished societal learning processes brought about, above all, by religious pluralism and concomitant political conflicts. From such a perspective, it is possible to focus on systematic insights which, from the outset, are open to intercultural translation and exchange.21 Regardless of whether the liberal concept of political secularism was first spelled out historically in the framework of Western culture, what ultimately counts is the insight into the significance of respectful non-identification as a prerequisite for a non-discriminatory implementation of the right to freedom of religion or belief. Since this right has received international recognition as a universal human right,

19 For such an understanding see for example, B. Lewis. Islam and the West. Oxford: Oxford University Press, 1993, 135.

20 Compare W. Pannenberg. Civil Religion? Religionsfreiheit und pluralistischer Staat: Das theologische Fundament der Gesellschaft, in Die religiöse Dimension der Gesellschaft. Religion und ihre Theorien. Tübingen: Mohr-Siebeck, 1985, 63–75. A similar interpretation, mixed with elements of modern systems theory, has recently been proposed by I. Augsberg and K. Ladeur. Toleranz—Religion—Recht. Die Herausforderung des Neutralen Staates Durch Neue Formen von Religiosität in der Postmodernen Gesellschaft. Tübingen: Mohr Siebeck, 2007.

21 H. Bielefeldt. Western versus Islamic human rights conceptions? A critique of cultural essentialism in the discussion on human rights, in Political Theory, 2000, 90–121.


however, it must also be possible to argue for the adoption of political secularism beyond the specific cultural confines of the West.

There is yet another reason for rejecting any exclusive “Westernization” of political secularism. One can reasonably argue that such Westernization eventually jeopardizes the liberal spirit of political secularism even in those Western countries in which secular constitutions have been more or less firmly established. That is, if political secularism in Europe is chiefly portrayed as epitomizing an exclusively “Western” achievement, it can easily be turned into an ideological weapon against immigrants from non-Western cultures and their claims to a non-discriminatory enjoyment of freedom of religion or belief. We can actually observe a tendency in many Western European states to confront immigrants, especially those stemming from Muslim majority countries, with demands that they should either submit to a thorough cultural assimilation into their receiving societies or content themselves with a position at the margins of society.22 Ironically, such anti-liberal policies of enforced assimilation or discrimination against religious minorities are sometimes propagated in the name of secularism. In order to preserve the liberal spirit of political secularism, it is thus all the more important to deconstruct cultural essentialist readings of political secularism and point to the core insight of the liberal-secular constitution, which is the universalistic claim of freedom of religion or belief.

Muslim Attitudes toward Political Secularism

A Loss of Religious Values?

It took the Christian mainstream churches a long time before they were ready to subscribe to the concept of political secularism, a concept which they had, over a long period of time, equated with religious indifference, atheism and a general decline of religious values in public life. In the meantime, the major Christian denominations in the West have clearly espoused the secular state—with a somewhat ambiguous result; however, that political secu larism is sometimes por trayed as an exclusive heritage of Occi dental Chri stianity. Both of these problematic attitudes can sometimes also be found in statements of contemporary Muslim thinkers.

For instance, Abul A’la Mawdudi, an influential theoretician of modern political Islam, has propagated the programme of an Islamic “theo-demo cracy” in which the community of believers is supposed to act as God’s collec tive representative on earth in order to imple ment the Islamic sharī’a politically and legal ly.23 The

22 Compare H. Bielefeldt. Muslime im Säkularen Rechtsstaat. Integrationschancen Durch Religionsfreiheit. Bielefeld: Transcript Publishing House, 2003.

23 Compare A.A. Mawdudi. The Islamic Law and Constitution. 3rd Edition. Lahore: Islamic Publications, 1967, 147f.


very term “theo-democracy” reveals Mawdudi’s politi cal purpose of esta blishing a democra tic ver sion of theocracy systematically opposed to secular concepts of democracy and human rights. Alt hough Mawdudi recognizes certain rights of non-Isla mic mino rities, he insists that all strategic political and mili tary positions remain reserved to faithful Muslims in order to main tain the “theo-democratic” legitimacy of the con stitu tion. Even more radical than Mawdudi is Sayyid Qutb24 in whose dichotomized worldview the secular state repre sents the “jahiliyya,” that is, the world of pagan ignoran ce. Whereas in traditional Islam the term “jahiliyya” was used to descri be the darkness of the pre-Islamic era, Maw dudi and Qutb invoke this term to stigma tize all those ideas and practi ces, including some liberal Islamic ones, which do not fit into their ideological un derstan ding of political Islam. Indeed, for Sayyid Qutb the secular state epi to mizes an illegitimate usurpation of God’s sovereignty.

Although polemical anti-secularist writings such as those by Mawdudi and Qutb can also be found on the bookshelves of many Islamic organizations in Europe, a systematic opposition against the secu lar state seems to be confined to a relatively small group among Mus lims living in Europe, whereas the majority of European Muslims apparently have been able to adapt to the secular political or der.25 For instance, in Germany various Islamic umbrella organizations have repeatedly professed loyalty to the secular constitution.26

A Response to Christian Clericalism?

The second above-mentioned ideolo gical twist concerning political secularism, that is, its transformation into an ex clusi vely Chri stian accom plish ment, paradoxically also occurs in the statements of some Muslim authors. Their argu-ment is that the secu lar state represents indeed a specifically Chri stian solu tion to a specifically Christian problem, that is, the problem of clerica lism. Assuming that Sunni Mus lims never had an insti tu tionalized clergy compa rable to that of the Ca tholic Church, it is argued that Is lamic socie ties, unlike the Chri stian West, have never even felt the need to undergo a pro cess of political secularization.27 Based on the two assump tions that poli tical clerica lism histori cally was a typically

24 Compare Y.Y. Haddad. Sayyid Qutb: ideologue of the Islamic revival, in Voices of Resurgent Islam. Oxford: Oxford University Press, 1983, 67–98.

25 Compare M. Rohe. Das islamische Recht. Geschichte und Gegenwart. Munich: C.H. Beck, 2009, 338.

26 An example is the Islamic Charter (“Islamische Charta”) issued by the Central Council of Muslims in Germany (“Zentralrat der Muslime in Deutschland”) in February 2002. English translation available at: http:// www.zentralrat.de/ 3037.php (accessed July 18, 2011).

27 Mawdudi, too, insists that his concept of “theo-democracy” can by no means be compared to We stern clericalism. Compare Mawdudi (2004), 147, “ … Islamic theocracy is something altoget her different from the theocracy of which Europe has had bitter experience


Christian pro blem and that Islam, at least in its Sunni version, has never known a cler ical hierarchy, some authors contend that what the West has accomplished only in modern times has always been a reality in Islam.

This sort of affirmation of political secularism, however, remains utterly abstract. It is not less abstract than the general rejection of secularism as a merely Christian problem which supposedly has no bear ing whatsoever on Muslims. The abstract affirmation seems to be comparable to the superfi cially “bapti zed” secularism which some Christian theologians have propaga ted. What is missing in such an attitude, above all, is a critical discus sion of those forms of reli gious authoritarianism which have existed, and continue to exist, also under the auspices of Islam. As Fouad Zakariya has pointed out: “Although it is correct to say that in Islam an equi va lent to the Pope does not exist, there has in fact been, and continues to be, a strong religious power … whose aut hori ty some times exceeds the power of the state.”28 Zaka riya there fo re calls upon his fellow Mus lims to engage in a critical and self-criti cal discussion about the dangers of Islamic autho ritaria nism as well as the possibilities of an Islamic appreciation of political secularism.

Appreciating Secularism from an Islamic Perspective

A debate on secularism is not new in the Islamic context. One of the early Muslim ad vocates of political secularism was Ali Abdarraziq, who in his well-known book Islam and the Bases of Power (1925)29 welcomes the abolish ment of the caliphate, an event that had stirred deep emotions throughout the Islamic world. Abdarraziq points out that the Qur’an does not contain any detailed guidance as to how to build and lead a state. If it is true that the Qur’an is the final and complete book of revela tion, Abdarraziq argues, it follows that state politics does not belong to the core message of Is lam. Consequently, Abdarraziq draws a clear line between the prophe tic and the political role of Mohammed. Where as he agrees that Mohammed epitomizes a timeless religious aut hority as the “seal of the pro phets,” he claims that Mohammed’s role as political leader was only due to the hi storic circumstances of the first Isla mic community in Medina:

wherein a priestly class, sharply marked off from the rest of the population, exer cises unchecked domination and en forces laws of its own making in the name of God … ”

28 F. Zakariya. Laicité ou islamisme. Les arabes à l’heure du choix. Paris: la découverte, 1989, 32. The significance of the distinction between sacred texts and their inevitably contextualized human interpretation for feminist approaches has recently been highlighted by Mir-Hoseini, Z. and Hamzic, V. Control and Sexuality. The Rivival of Zina Laws in Muslim Contexts. London: Women Living Under Muslim Laws, 2010. This book includes a general assessment of the need for feminist readings of Islamic sources as well as a number of country studies.

29 A complete French translation of this book (L’islam et les bases du pouvoir), originally written in Arabic, is availa ble in Revue des Études Islamiques VII, 1933, 353–91 and VIII, 1934, 163–222.


During all his life the Prophet made no allusion to anything which could be called an “Islamic state” or an “Arab state.” It would be blasphemy to think otherwise. The Prophet did not leave this earth until he had entirely ac complished the mission given him by God and had explained to his nation the precepts of reli gion in their entirety without lea ving anything vague or equivo cal.30

Abdarraziq further argues that the caliphs’ pretension to go vern as “the suc cessor of God on earth and his shadow over his servants” amounts to idolatry. Hence his conclusion that the end of the caliphate can be considered liberation of Is-lam: “Muslims are free to demo lish this worn-out system (of the caliphate) before which they have debased and humiliated them selves. They are free to estab lish the bases of their kingdom and the organization of their state according to more recent conceptions of the human spirit ….”31

Taking up Abdarraziq’s line of thought, Mu hammad Said al-Ashma wy denounces the confusion of religion and state poli tics as a “perver sity”32 because it is de structive to both: It debases religion by turning it into an in strument of ever yday power politics, and it typically results in a problema tic sacralization of poli tics, which itself is thereby shielded against critical public dis course. Whereas theocracy, in which earthly rulers claim a qua si-divine authori ty, ultimately amounts to polytheism,33 the monotheistic dogma of Islam, accor ding to Ashmawy, implies a clear distinction between state and religion.

In the same vein of critical reflection, Zakariya unmasks the purported antithesis of “divine law” versus “human law” as an ideolo gical construc tion. Those who invoke divine law to legitimize their political position, actually remain finite human beings. However, they refuse to recognize their finiteness and to submit their political proposals to an open democratic dis course and criticism. “The real alternative,” Zakariya writes,

is not one between divine law … and human law. It is the alternative between two versions of human law one of which frankly admits to its human nature whereas the other one pre tends to derive immediately from a divine source. This latter version of human law is dangerous because it tends to base its particular posi tions on divine authority, thereby attributing to its passions and errors a sanctity and in fallibility to which is has no title.34

30 A. Abdarraziq. The caliphate and the bases of power, in Islam in Transition. Muslim Perspectives, edited by J.J. Donohue and J.L. Esposito. Oxford: Oxford Univer sity Press, 1982, 29–37.

31 Abdarraziq (1982), 37.32 Compare M.S. Al-Ashmawy. L’islamisme contre l’islam. Paris: La Découverte,

1989, 11.33 Compare Ashmawy (1989), 34, 85.34 Zakariya (1989), 115.


In contrast to bigoted supra-human pretensions, poli tical secularism does justice to the finite nature of human beings. At the same time, in Zakariya’s opinion political secularism can be understood as an expression of re spect for the transcen dence of God, whose inscrutable will should never be instrumentalized for the purposes of power politics.

Similar thoughts also occur in the writings of reformist Shia theologians. Without explicitly using the concept of secularism, for instance, Mohsen Kadivar, a disciple of the late Grand-Ayatollah Montazeri, argues for a policy of non-discrimination on the ground of religion or belief. “In a world populated by the followers of different religions and creeds, each of which … accords special rights to its own followers, the fairest way is to reject all these special rights and not to involve religious beliefs in human rights.”35 Moreover, Kadivar maintains that what is fair from a political point of view at the same time makes sense from a religious perspective, because people living in conditions of political and legal equality “can turn to and accept a religion with greater sincerity, without their decision being tainted by fleeting, this-wordly motivations.”36

Mohamed Talbi likewise resorts to a strong religious language when arguing that no one can pretend to know God’s plan with their fellow humans. He contends that

from a Muslim perspective … religious liberty is fundamentally and ultimately an act of respect for God’s Sovereignty and for the mystery of His plan for man, who has been given the terrible privilege of building on his own responsibility his destiny on earth and for the hereafter. Finally, to respect man’s freedom is to respect God’s plan.37

It is from such theological reasoning that Abdullahi An-Na’im succinctly states: “In order to be a Muslim by conviction and free choice, which is the only way one can be a Muslim, I need a secular state.”38

Conclusion

It is not easy to make forecasts as to whether reformist perspectives like those just presented will gain more strength among Muslims in Europe and elsewhere. The purpose of this chapter, at any rate, was not to make prognoses but rather to point to possibilities. What the above quotations from contemporary Muslim thinkers show, at any rate, is that an appreciation of political secularism from an Islamic

35 Kadivar, M. Human rights and intellectual Islam. New Directions in Islamic Thought Exploring Reform and Muslim Tradition. London: Tauris, 2009, 47–73.

36 Kadivar (2009), 55.37 Talbi, M. Religious Liberty: A Muslim Perspective. Conscience and Liberty, 3rd

year, 1, 1991, 23–31.38 An-Na’im (2008), 1.


perspective, far from being essentially impossible, is actually a reality among Muslims today—even if those explicitly subscribing to such views may currently still represent a minority.39

Against the widespread stereotype that a positive appreciation of political secularism is the exclusive heritage of Western-Christian culture, it should be emphasized that rejection or affirmation of political secularism, rather than directly deriving from existing theological doctrines or cultural legacies, largely depends on individual and collective learning processes. For such learning pro cesses to be possible, however, all currents in society bear responsibility. It is in this sense that political secularism presents a challenge to Muslims as well as non-Muslims.

What non-Muslim Europeans can do to support, at least indirectly, the inner-Islamic debate about political secularism is to try to make clear, in words and deeds, that the secular state is not a state run by followers of doctrinal secularism but, rather, should be understood as a state bound by the human right to freedom of religion or belief. The best defense of political secularism, therefore, is a full and non-discriminatory implementation of freedom of religion or belief for everyone, including members of religious minorities. In this regard, European governments still have a lot of homework to do. For instance, in Germany, Islamic or ganizations have not yet been accor ded the status of a “Corpora tion of Public Law,” a status which the Christian churches have enjoy ed for a long time and which, in principle, is open for other religious communities, too. Apart from the prestige which this public legal status carries, it is connected with a number of practical advantages, such as finan cial subsidies and representation in public media organizations. A problem that worries German Muslims much more than the status of Corporation of Public Law is the need for Islamic education in public schools. According to the German constitution, religious education generally has the status of a “regular discipline” in public schools. Although religious education is organized by the state, most of the Länder religious communities have a constitutionally guaranteed right of defining, for their respective constituencies, the content of religious education.40 So far, however, the majority of Muslim students and parents have not been able to enjoy this right. To fill this gap would require more than an act of tolerance towards Muslims. It is indeed a requirement on behalf of implementing those very principles on which the legitimacy of a secular democracy is normatively based.

39 Compare J. Klausen. The Challenge of Islam: Politics and Religion in Western Europe. Oxford: Oxford University Press, 2005.

40 Compare article 7, paragraph 3, of the German Constitution.

Chapter 2

Muslim Minorities and Democracy: Battle of Memories versus Genuine Integration

Guy Haarscher

Religion, Democracy and Human Rights

I would like to begin this chapter by briefly approaching a more general issue, that is, “religion and democracy.” At first glance, one could conclude that a clash is unavoidable between these two elements. Why? Because almost all religions have a body of sacred laws, and it would be a miracle if these would magically harmonize with modern, secular, political values. This is not to say that the contradiction is a priori insurmountable. I just want to emphasize that old, sacred texts, elaborated by human beings under the dictates of God (provided one believes in God) during a period that is remote from the contemporary era have a content that is often at odds with the modern tenets of human rights and democracy. Moreover, contemporary political values are the result of a human collective choice, which might clash with the historically understood will of God.

However, religions have evolved. Some doctrines have been interpreted in ways that make them compatible with modern precepts of human rights; others have simply been dropped. How is this possible if one accepts that the sacred commands are the voice (logos) of God? How can human beings, considered in the three monotheist religions to be products of a Creator, modify the transcendent will of the Creator? In Judaism and Christianity, the sacred texts are viewed as the will of God received by human beings in a particular historical context. This view entails, for instance, that a symbolic interpretation of the texts, as opposed to a literal approach, is not scandalous because it does not modify the will of God, just its historical understanding by human beings.

It would be an oversimplification, however, to consider the problematic relationship between religious and democratic values to be only a zero-sum game: if a religious command contradicted principles of democracy and human rights, the latter would prevail. This is, of course, true in many respects, but it leaves aside another aspect of religion: some religious people will consider that they are the best defenders of human dignity, and therefore of human rights. They will contend that in order to protect human rights one needs categorical commands that cannot be reduced to relativist, positivist human dictates. John Rawls, in Political Liberalism, which is a re-elaboration of his former theses developed in A Theory


of Justice, spoke in this context of an “overlapping consensus,”1 meaning human rights and the principles of justice can be defended within the framework of various “comprehensive” conceptions of the good. In that sense, contemporary secular political values and the religious conceptions of life are related in what Rawls calls a “reflective equilibrium,”2 and do not necessarily generate one unique result: some religious behaviors and commands have to “recede,” but other elements of religion can reasonably be considered necessary for the foundation of human rights values. Thomas Jefferson knew very well the dangers of religious intolerance, but he also considered that, without a belief in at least a “theistic” God, human rights could not be defended, and relativism would prevail.3 Some fifty years later in a similar context, Ivan Karamazov, one of Dostoyevsky’s heroes, famously said that if God did not exist, everything would be permitted.4

Islam and Democracy: A First Approach

Let us now analyze the specific case of contemporary Islam. Most are aware that Islamism, a fundamentalist, political and literalist approach to the Qur’an, has gathered momentum since approximately the 1980s. We shall analyze the history of this movement later. Regarding the sacred commands being considered, as in the Judeo-Christian tradition, the word of God as received by human beings in a certain historical and cultural context, there is a specific problem concerning Islam.5 Indeed, the Qur’an is supposed to have been dictated by God in Arabic to the illiterate Mohammed. It is the voice of God, which, by the way, makes problematic any translation of the sacred text into other languages. On the other hand, there

1 See J. Rawls. Political Liberalism. New York City: Columbia University Press, 1993.2 “[W]e work from both ends … I assume that eventually we shall find a description

of the initial situation that both expresses reasonable conditions and yield principles which match our considered judgments duly pruned and adjusted. This state of affairs I refer to as reflective equilibrium.” J. Rawls. A Theory of Justice. Boston: Harvard University Press, 1971.

3 “Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?” T. Jefferson. Notes on the State of Virginia (1781–1782). New York City: Library of America, 1984.

4 The exact sentence is not literally found in the book by Dostoyevsky, contrary to what is usually said. But it captures very well Ivan’s conceptions: he is an idealist atheist, very much at a loss before the implications of a world without God. F. Dostoyevsky. The Brothers Karamazov. Penguin, 2003.

5 Djavâsi-Amoli, a contemporary Iranian conservative GH, declares that those who oppose the Velayat-e-faquih, government by the doctor of the law—GH, are worse than animals and adds: “ … Accepting Islam is incompatible with accepting democracy … We must choose our way … Democracy in law means that, if the people wants something against God’s will, then this prevails over God and religion … ” J. Rollet. Religion et politique. Paris: Grasset, 2001, 166–7.

Muslim Minorities and Democracy 23

have long been many schools of interpretation of the history of Islam, and it is only since the time of Al-Ghazali (1058–1111) that a literal approach has prevailed, “closing … the gates” of Ijtihad (interpretation in other ways to give new answers to new problems). Therefore, one cannot affirm in a categorical way that Islam is necessarily immovable, and that only a literal approach to sharī’a is possible.

Just after the September 11th attacks on New York and Washington, the Italian Prime Minister, Silvio Berlusconi, declared that Islam was incompatible with modernity and democratic ideas.6 There was a row about this statement, and Berlusconi decided, sincerely or not, to back down. However, he had expressed some feelings that were—and still are—deeply rooted in the Western European population’s minds.

On the other hand, many European intellectuals put the blame for the terrorist attacks on the United States and the West, interpreting them as a reaction to policies of domination, particularly in the Middle East. In that context, Islamism—not to be confused with Islam—was considered a marginal phenomenon, not essentially related to an intrinsic crisis in the history of the Muslim civilization. These two explanations (shame on Islam; shame on the US) were of course blatant oversimplifications, but they captured the state of public opinion, at least in Western Europe. Of course, the two opposite positions were linked to deeply rooted prejudices. Anti-Americanism is a powerful ideological sentiment, particularly in France, and the presence of strong Muslim immigrant communities has generated feelings of rejection and of fear that seem to have been confirmed by the events of 9/11. We should, of course, try to deconstruct these stereotypes and get to a more reflective understanding of the causes of Islamic radicalism and violence if we want to cope seriously with the problem of the relationships between contemporary Islam and democratic ideals and practices.

Arab and Turkish Minorities in France and Belgium

As the next section of this chapter illustrates, the cultural and religious context in which minorities from the Maghreb or Turkey evolve (or, for instance, the Asian minorities in Britain), has radically changed since they came to Western Europe seeking industrial work. In the 1960s and 1970s, they were identified as Moroccans, Algerians, Turks, and so forth, by national rather than religious identity. Of course, they were Muslims, but religion was related to traditional contexts, and not considered an obstacle to integration, which was very often impeded by racist feelings emerging in the majority (this had already been the case for Italian, Polish and Portuguese guest workers in the 1950s).

It was only in the 1970s and 1980s that Islam became a “hot topic,” when the frustrations of these minorities were manipulated by an international fundamentalist movement. Unfortunately, Islam became visible in western societies in the guise

6 See Le Monde, September 28, 2001.


of international Islamism. This phenomenon creates a specific problem for the possible democratization of Islam, notably in France and Belgium. Especially in Belgium, where religions are subsidized by the state, the government needs interlocutors who can be considered representative of the relevant community. In the case of Muslim minorities, this is particularly difficult. Either the interlocutors will be democrats and liberals, but not representative of their religious communities, or they will be representatives of their religious communities, but not democrats.

This is a very difficult problem, but also an essential precondition for the integration of Muslim minorities into the democratic process. The problem even exists in France, where there is apparently no need for official interlocutors because the principle of laïcité, which is based on the Statute on the Separation of Church and State,7 prohibits government funding of any “religion.”8 As religion is not taught in French public schools, there is no need to create a representative body that could nominate teachers of the Islamic religion, as is the case in Belgium. Why, then, did Nicolas Sarkozy, while French Minister of the Interior, create a French Council for the Muslim Religion?9 Basically, its purpose is to control a community that is in danger of being manipulated by the extremists. Liberalizing Islam does not then appear to be linked to particular forms of institutional secularism—Belgium and France have adopted very different solutions to that problem—but to a general problem which the French sociologist Gilles Kepel calls Fitna,10 that is, an internal war in Islam. This internal war is essentially waged in Western Europe, because important Muslim minorities are present, and the freedoms of expression, of association, and so forth, are much more effectively guaranteed than is the case in the “land of Islam” in general. A more precise picture of this phenomenon would help us to better understand the specifics of the present situation.

Re-Islamization “From the Bottom”

In two earlier books,11 Gilles Kepel tried to analyze the causes of contemporary Islamism. A detailed analysis of these historical events would fall beyond the scope of this chapter. However, I will discuss some basic elements that are essential to gain an understanding of the contemporary situation of Muslim minorities in Western Europe. The Golden Age of Arab Islam finished long ago. The decline, starting in the thirteenth century, is felt deeply embedded in the daily “culture” of Muslim peoples today. Of course, such a feeling is easily manipulated, as it is often

7 Loi de Séparation de l’Eglise et de l’Etat, December 9, 1905; see G. Haarscher. La laïcité. Paris: PUF, 2004.

8 “The Republic does not recognize, salary or subsidize any religion.” Article 2 of the Statute of 1905.

9 The first Council was elected on April 6, 2003.10 See G. Kepel. Fitna. Guerre au Coeur de l’Islam. Paris: Gallimard, 2004.11 G. Kepel. La Revanche de Dieu. Chrétiens, Juifs et Musulmans à la Reconquête du

Monde. Paris: Seuil, 1991; Kepel, G. Jihad. Paris: Gallimard, 2003.


the basis of any frustration or resentment. Nevertheless, it rests on a sound basis. From approximately 800 to 1200 A.D., the Muslim world, under the Arab rule of the Umayyads and Abbasids in Cordoba and Baghdad, was in many aspects more “progressive” than Christian Europe. The mixture of Muslim, Judaic, and Christian cultures generated a dynamism that, particularly in Al-Andalus, expressed itself in art, science, and a certain form of tolerance. Of course, one has to avoid judging these periods by twenty-first-century standards while at the same time refraining from idealizing the openness of the Arab world at the time. However, if we view the events and results from the perspective of that time, we can undoubtedly affirm that the decline was affective, deeply felt and resented in the “land of Islam.”

In the fifteenth century, a new Muslim empire was born, this time under non-Arab (Turkish) rule. From the time of Suleiman the Magnificent (1494–1566) to the nineteenth century, when the Ottoman Empire was dubbed “the sick man of Europe,” a new period of relatively rapid decline took place. During World War I the Arabs were encouraged to side with the British against their Turkish rulers. Lawrence of Arabia had promised them that they would be freed from Ottoman domination, but after the war, governance of most of the Middle East was shared between the dominant colonial powers, France and Britain. This was another humiliation that is still deeply felt, and appears today in Al Qaeda attempts to justify the unjustifiable.

Two solutions were proposed to end the Arab decline by movements which were completely at odds with each other. The first one held that, in order to catch up with the “Christian” West, the Arab world had to modernize and, in so doing, borrow whichever elements of Western political culture seemed to be linked with the success of Europe (and, increasingly, the United States). The reasoning had a certain loose relationship with the strategy the Japanese had adopted in the Meiji Era (1868–1912) and after, i.e., copy the west in order to “borrow” from it the basic ingredients of its remarkable success. The dominant figure of this movement was Gamal Abdel Nasser, who seized power in Egypt in 1952. His emphasis was on modernization and the building of Arab nation-states partially modeled on the West. I say “partially,” because, for historical reasons, the borrowed elements were much more akin to fascist and communist dictatorships than to the liberal ideas of human rights and democracy, which never really took root in the region. Depending on their own respective convictions (Nasser was a sincere believer), and in more or less radical methods, rulers pushed religious leaders aside by paying lip service to Islam and by limiting them, as far as was possible, to non-political roles. The fact is that Nasserism, as it tried to take root in the Arab world (in Algeria, Tunisia, Libya, Syria, Iraq, and Egypt), resulted in complete failure. The most dramatic illustration of this was the spectacular defeat of Nasser in the Six Days War against Israel, the event coming after long months of propaganda assuring the Arab and Muslim world of the imminent victory over the “Zionist entity.” But this was a secondary cause of the failure. More important was the incapacity of corrupt autocrats to live up to their own standards, to really modernize their countries and to give the youth a credible future (the demographic trend ran against them).


The failure of this first alternative gave a new impetus to the people in the Muslim world who had never believed in Western style modernization. For them, the attempt was doomed to fail from the beginning because it resulted in further distancing the land of Islam from the original philosophy of the Prophet. Copying the west was exactly the opposite of what had to be done; it aggravated the “illness of Islam”12 instead of curing it. A similar debate took place, in a very different form, in the Catholic world in the 1960s. The Second Vatican Council had taken a position in favor of aggiornamento—modernization and adaptation of Christian doctrine to the reality of the contemporary world. The “integrists,” who refused the ideas defended in the Council under the leadership of Pope John XXIII, affirmed that, by adapting to a modern, secularized society, the Catholic Church would lose its soul. It was therefore necessary to stick to, as Nietzsche would have said, “untimely”13 values and resist the conventional wisdom of the time (the Zeitgeist).

In the Muslim world, such was the gist of the arguments developed over and over by those who came to be known as “Islamists.” Of course, throughout modern and contemporary times there had always been small groups that defended these theses. But they were marginalized, and several times severely repressed (as was the case of the Muslim Brotherhood in Nasserian Egypt whose leader and theoretician, Sayyid Qutb, was hanged in 1966). The failure of the Nasserian model gave the Islamists a formidable impetus. Here was the opportunity (the kairos of Aristotle and Machiavelli) they had awaited. At last, they would be able to prove that the solution resided in enforcing the Islamic law (the sharī’a), and not in obeying secular rules. To overcome the “illness of Islam,” it was necessary to go back to the sources and to live again according to the genuine Word of God, the Qur’an and the Hadith.

The Islamists began by trying to topple the Nasserian leaders (Nasser himself had died in 1970, three years after his crushing defeat by the Israelis), and to replace the law of the “apostates” with the sharī’a. Gilles Kepel calls this strategy “reislamization from the top.” Thus far the attempts have failed in all Arab countries. They were crushed in the bloodiest ways in Egypt, Syria, Iraq (during the rule of Saddam Hussein), Tunisia, Algeria, and even Morocco (where the position of the king as the Commander of the Believers insulates him—but not other political leaders—from Islamist attacks). The only places where the re-Islamization from the top succeeded are to be found outside the Arab world in Persian (and Shiite) Iran (the revolution led by Ayatollah Khomeini took place in 1979) and Pashtun, Tajik, and Uzbek Afghanistan, under the radically intolerant rule of the so-called students of religion (Taliban), until the coalition under US leadership toppled them at the end of 2001 in the wake of 9/11.

The Islamist movements adopted another strategy: re-Islamization from the bottom. This approach was made possible by two main factors. First, the

12 A. Meddeb. La Maladie de l’Islam. Paris: Seuil, 2002.13 See F. Nietzsche. Untimely Meditations (1873–76). Cambridge: Cambridge

University Press, 1997.


fundamentalists decided, in the majority of cases, to stop attacking the governments directly. The leaders of the so-called “secular” Nasserian States were ready to accept such a proposal, and left the Islamists an unfettered opportunity to attack the “others,” the West, that is, the United States, the Christians (“Crusaders”), and the Israelis or the “Zionists” (more and more directly assimilated to the Jews). A second factor aggravated the situation: the “secular” governments (“apostates” in the eyes of the Islamists), being corrupt and basically ineffective, were unable to cope with the demographic boom that was taking place in their countries; more and more young people were unemployed, which caused resentment towards the government. As we saw before, the fundamentalists were “authorized” to deviate the venting of the frustrations towards the evil “other.” Of course, the West bears certain real responsibilities for the situation of Arab and Muslim countries, but here, the hubris was such that the perception of the world and the complex causes of the “catastrophe” were completely distorted.

At approximately the same time, the Islamists took over the basic “education” of children, which the impotent governments were all too happy to abandon to them. They received money from the Saudis (in particular from some members of the ruling family), who have always desired to control Sunni Islam.14 They built roads, sewage systems, hospitals, schools, and of course mosques. This phenomenon is quite characteristic of places where the state is unwilling, or too weak, to provide certain basic social services for the population. It has happened in Southern Italy (the Mafia), in South America, particularly—but not only—in Colombia (the drug cartels), and in the former Soviet Union. Under these circumstances, the people are controlled by groups that give them what the state does not provide. In a sense, they compensate for the lack of basic institutionalized social rights. By doing this, they ideologically take control of the people and dominate them. This is what happened with the re-Islamization from the bottom: the basic services that they offered gave the fundamentalists a formidable opportunity to control the “primary” education of the children. The governments had signed, so to say, a pact with the Devil. They had allowed the Islamists to take over the population from the bottom, foolishly hoping that, being immune from direct criticism, they would be able to survive by putting the blame on the West. But they had opened Pandora’s Box.

14 This is a particularly good example of “the boot’s on the other foot.” The Saudis are perceived by the Arab “street” (now intensely manipulated by the Islamists) as the popes in Avignon were viewed by the Franciscans in the fourteenth century. They were perceived as living a life of luxury that was completely at odds with the vow of poverty that lies at the heart of the New Testament. Mutatis mutandis, the Saudis want to dominate Sunni Islam, but they actually sometimes live, in fact, not far from Avignon, on the French Côte d’Azur, as many Western tycoons do. It was unavoidable that, at some point, the Islamists they had supported would attack them as being as “apostate” as the secular Arab regimes. The evolution of Osama bin Laden was a good example of this process.


The Question of the Islamic Headscarf

This phenomenon, taking place at the international scale, has had a very powerful effect on Muslim minorities in a globalized world, particularly in Western Europe. The very volatile question of the Islamic headscarf or veil, which has torn apart the right and the left ideologies in France since the end of the 1980s, testifies to that. It began in 1989, when the Rushdie affair was developing in Great Britain.15 The contemporary question of the veil has to be distinguished from the traditional one, which does not raise important problems in villages, and in areas inhabited by people not having yet been confronted with the shock of the “great transformation,”16 which is modernity. More traditional ways of life are simply the result of customs that were created by centuries of habits. The “modern” veil, as it were, is a completely different phenomenon, inasmuch as it appears in modern—often Western—cities, as something new. This should not surprise us if we consider what we have learned so far about the recent phenomenon of re-Islamization from the bottom. This kind of process influences the mentalities of the people, and Islamists explicitly aim at reintroducing forgotten ways of life that are supposed to be more in line with the requirements of the sharī’a. In this sense, the veil is just the expression—more exactly, the symptom—of the second strategy (the first one being the re-Islamization from the top), adopted by the fundamentalists to “save” the Muslim and the Arab world from the domination of the west.

In 1979, when the Ayatollah Khomeini seized power in Iran, television news coverage showed women who, having adopted a modern way of life under the Shah, were now persecuted by the Guardians of the Revolution and obliged to wear the headscarf. This phenomenon also took place in other places. Ten years later, in 1989, it began to affect some Western countries, where there are a substantial number of people who emigrated from Muslim countries. In these Western countries, the headscarf issue came into conflict with the democratic tradition. In other words, the Islamic veil was reinterpreted by many militants as only an expression of freedom of conscience and religion.

This constitutes a very interesting and quite radical transformation of the historical meaning of the veil. For Iranian women trying to escape the violence of the mullahs and their militias, it meant the imposition of an official creed upon people against their will. This was a blatant example of intolerance, a violent mingling of religion and state. It was completely at odds with the philosophy of human rights, which is based on the autonomy of conscience. In the West, the veil was reinterpreted by some observers as meaning exactly the opposite. It was viewed as an expression (and not a negation) of freedom of conscience by young girls wanting to re-appropriate their faith and culture in a world that

15 See W.C. Durham Jr., et al. Edited. Islam, Europe and Emerging Legal Issues. London, Ashgate, 2012.

16 See K. Polanyi. The Great Transformation: the Political and Economic Origins of our Time. Boston: Beacon Press, 2001.


imposed Christian or “materialist” ways of life on them. This became the primary issue in the fracture dividing the leftist and conservative ideologies in France. Other observers reminded those who, in their eyes, were really naïve that the primary meaning of the veil was the forced imposition of a “dogma” on people, heteronomy, and not autonomy (to use Kantian terms), as in Iran.

The difficulty of this problem in societies based on human rights and democracy consists of the psychological element involved. Everything depends on the meaning that is attributed by the girls themselves to wearing (or not wearing) the veil. If their motivation is genuinely religious, and if they do not infringe upon the liberty of others (for instance by exerting pressures on other girls whom they consider Muslim by “duty of birth” as it were17), wearing the headscarf seems to be protected by the freedom of conscience provisions in the constitutions of (most?) Western democracies and in Article 9 of the European Convention on Human Rights. If, instead, they do it because they fear pressure—or even violence—from fundamentalists (very often through their brothers or cousins18), wearing the veil will be the expression of a constraint that liberal states cannot condone if they want to live up to the standards proclaimed in their constitutions and the treaties they have ratified. It is very problematic to try to “verify” which kind of meaning and motivation applies, the “good,” the “bad” or any in between.

This problem appeared in a most dramatic way in French public schools. In 1989, a school director asked some girls to take off their headscarves. They refused, and he expelled them. The government was embarrassed by the situation and Prime Minister Lionel Jospin asked for an advisory opinion by the Conseil d’Etat, which is the highest administrative jurisdiction in France. The opinion was formulated in a very prudent way. Basically, the Conseil said that the wearing of the veil (and of other religious symbols) was not in contradiction with the principle of laïcité of the public schools. But if other factors were present, such as proselytizing, visible pressures, intolerance or violation of the school regulations, then a global prohibition of religious symbols would be acceptable, or even required. This was a balanced opinion, expressing the fact that, at the time, the Conseil d’Etat was not able to take a decisive position on one of the opposing interpretations. Was wearing the headscarf the result of a free act of conscience? Was it the consequence of pressure and/or violence from groups or individuals? Actually, both motivations seemed to be present, some girls using the veil as a means to vindicate their “identity” and their faith, others simply acting in conformity with the commands enunciated by fundamentalists, that is, expressing the re-Islamization from the bottom. The latter is obviously intimately linked to manipulation, intolerance and pressures. The former commands respect

17 The Rushdie affair was much clearer in this context. The fundamentalists first considered that, being born a Muslim (in Bombay, India), he had no authority to write and publish the Satanic Verses. Second, they used violence in order to try to suppress the books, intimidate the readers, or even kill the author.

18 See F. Amara and S. Zappi. Ni putes ni soumises. Paris: La Découverte, 2003.


in the name of freedom of religion. The administrative jurisdiction did not take a position, declaring only that, in case some symbols showed the presence of the second motivation, a general prohibition was permitted in the relevant school.

Between 1989 and 2004 (when a new statute was passed), the situation evolved. Of course, the 9/11 attacks played a substantial role, as well as did the radicalization of Islamist groups, notably in Western Europe. More and more complaints were heard, essentially from the school directors, who said that applying the Conseil d’Etat’s advisory opinion of 1989 had become less and less manageable for them. Basically, one has to comprehend that deciding between various motivations, some considered legitimate, others not, has always been, in such a context, quite delicate: Did a director have to interview the girls in order to weigh their motivations? Should he or she ask them if they had really freely chosen to wear the veil, and if it was for religious (and no other) purposes? And if they answered “yes,” was he or she obliged to take their declaration at face value, or was it necessary to measure it against a standard of authenticity, and if so, which one? If such a decision process was (rightly) considered ineffective and intrusive, unmanageable and immoral, then what exterior sign would be “enough” to allow the prohibition of the veil? There was a lot of confusion and legal uncertainty in the situation, and the managers of the school system became more and more embarrassed when dealing with the problem. As a result, France’s president, Jacques Chirac, decided in 2003 to create a commission, chaired by Bernard Stasi19—a man highly regarded by the left and the right, which is significant—and dedicated to investigating the problem of the veil in the broader context of the integration of immigrants and the radicalization of Islamists (as well as their growing influence on young people who were, and still are, the victims of daily acts of ordinary racism).

The Stasi Commission concluded, after having conducted many interviews, that the situation was different from what it had been in 1989. In brief, its members considered that elements of pressure, violence, and heteronomy were now dominant, and that, in order to facilitate the task of the directors and the teachers, a general measure of prohibition was advisable. Of course, any girls who had genuinely acted out of freedom of conscience felt legitimately frustrated. Due to the variety of possible motivations, an unobjectionable measure was (and is) of course beyond the grasp of any democratic government. The Stasi Commission had simply found that the ambiguity existing at the time of the Conseil d’Etat’s opinion was less and less present, and that in too many cases, the despotism of the brothers—and in general of the (young) men surrounding the girls—was massive and dominant.

An outcry was heard not only in the Muslim countries, but also in the United States, and even in other European countries. Was France returning to its old sectarian and anti-religious conception of the state-church relationship? The irony of the situation was that the declarations accusing France of violating freedom

19 The so-called “Stasi Commission” was created on July 3, 2003. On December 11, 2003, it delivered its report to President Chirac. The statute forbidding religious signs at school was adopted on March 15, 2004.


of conscience and human rights often came from Muslim countries, where these rights are all but non-existent, and where the religious minorities are crushed (today, the partial tolerance—which we should not overestimate—of the Ottoman “Millet” system has been forgotten in many parts of the “Land of Islam”).

The prohibition of religious symbols actually concerns two spheres of social life: first, the domain of public service, where the French administrative tradition imposes on civil servants the duty that they not only act in a neutral and impartial way, but also that they show it (this is also a requirement enunciated by the European Court of Human Rights20). Second, it concerns young girls, vulnerable to pressure, who should be protected against the violence threatening them. The rationale for the latter prohibition (which, as we know, dates from March 2004, whereas the former derives from an old French administrative tradition) is that the Republic cannot accept that some citizens are the victims of a violence that blatantly runs counter to the principle of autonomy. Whatever one might think of the reasonable character—in terms of public policy—of the 2004 statute, it remains that, if there is a limitation on freedom of conscience in the mentioned situations, such a limitation is benign (at least as compared to the often bloody crushing of the religious minorities in other parts of the world). The European Convention on Human Rights provides for legitimate limitations to certain guaranteed rights, and, so far,21 the European Court has considered that such limitations were not a violation of the Convention.

Communitarianism and “Therapeutic History”

Actually, the question of the veil concerns only superficial elements linked to the Muslim minorities in Western societies. After all, the veil is only a sign, a symbol, an expression, and although there are strong disagreements about the subject and about the legitimacy of some measures of prohibition, the real problem lies much deeper. The Fitna is an inner struggle within Islam. The partisans of an adaptation to modernity speak in favor of a Muslim aggiornamento, or even a “Muslim Enlightenment.” Their position is difficult, because they have to distance themselves from the failed attempt to modernize the Arab world under the leadership of the Nasserians, which has become a sort of scarecrow, as much as for liberals, who cannot accept corrupt dictatorships, as for religious-minded

20 On the appearance of impartiality, see, among other cases, Langborger v. Sweden, June 22, 1989; Grieves v. United Kingdom, December 16, 2003, 69.

21 One of the most debated cases has been Leyla Sahin v. Turkey (June 29, 2004—no violation of Article 9), although it concerns higher education and not, as it is the case in France, (public) high schools. Two former decisions must be mentioned: Karaduman v. Turkey (May 3, 1993), and Dahlab v. Switzerland (February 15, 2001). See a full discussion of these cases in W.C. Durham, Jr., et al. Edited. Islam, Europe and Emerging Legal Issues. London, Ashgate, 2012.


people, who see in such a process an abandonment of Islam. These “enlightened” Muslims are often squeezed between the secular Nasserian governments, who dislike them because they criticize the democratic deficit of their regimes, and the Islamists, who very often control the “street” (the mosque, that is), and the popular movements, and hate liberals probably as much as they hate Nasserians.

In Western Europe, the situation is different: here, the Muslim democrats, favoring integration into modern societies, are basically only opposed by the now radicalized Islamists (and, at the fringe of the movement, the terrorists). Actually, the opposition presents two ways of solving the problems of the Muslim minorities. The integrationists think that the Muslims have an opportunity that does not exist in non-democratic countries: to live a free life without abandoning their faith. The European States guarantee human rights, notably freedom of conscience and non-discrimination. This entails that the religious (or non-religious) choice of the individual must be neither an advantage nor a disadvantage in the daily interactions of social life.

The issue of the Islamic veil is really just a symptom of the underlying problem for Muslims in Europe, which is highlighted by the violent reaction to Muslim girls who wear the veil. This violence consists either of racist speech and behavior in the majority, or of fundamentalist pressures in their own community. Perhaps more important is the content of what is taught at school, and more generally in society. Some Muslims, not all of whom are stricto sensu Islamists, contend that what is taught at the public school is—with an appearance of neutrality—the imposition of Christian values on children and teenagers. Taken as such, this is a much more serious problem than the veil. It concerns the very core of liberal and civic education.

One example frequently given is the teaching of the Crusades in history courses. Some observers assert that such a teaching is actually very biased in favor of Christians, leaving the role of the “bad guys” to Muslims. This is a serious accusation, and one has to be rigorous in assessing the facts. Nevertheless, if such a bias exists in one way or another, it runs counter to the idea of a “fair” integration that would not impose the abandonment of its culture on a minority, but would be based on what the German philosopher Jürgen Habermas calls “constitutional patriotism,”22 that is, a loyalty to democratic ideals and human rights embodied in constitutions, rather than to a dominant culture. If this were the case, the result would be assimilation, not integration.23 Assimilation means that the vulnerable minority group has to be completely absorbed by the majority culture in order to be “integrated.” Cultures are full of spiritual treasures, but also of deleterious prejudices, transmitted without criticism from one generation to another. Therefore, teaching about the Crusades in a supposedly neutral public school may expose an

22 See, e.g. J. Habermas. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Boston: MIT Press, 1996.

23 See, on this point, G. Haarscher. Integrity and neutrality of legal, in Judicial Integrity, edited by A. Sajo. Leiden: Nijhoff, 2004.


unacceptable hidden bias against Muslims. If this bias exists, what would be an effective method for eradicating it?

Some Islamist leaders speak in favor of a separate course on the Crusades. They want these events, which they consider important for their own history and culture, to be “correctly” taught to “their” children. Teaching such controversial periods of history (“Crusader” is considered today by Islamists to be an insult) in a way that everyone involved would term “correctly” is quite a difficult task. Referring to Islamic students with the possessive “their” is still more problematic. The children do not belong to anyone; they have the right to be educated in order to learn the responsible use of liberty they will need when they are adults, and then they will choose their conception of the good life in an autonomous way. If they remain in the tradition of their parents, this will be the result of a free choice, not because their association with a faith community is a foregone conclusion.

The correction of a latent bias in education is a necessity, but also extremely difficult, because it may generate perverse effects that would be damaging to the legitimate cause. The Islamists propose to create a special course for Muslim children, which would give them the “Islamic point of view” on the Crusades. One can legitimately fear that such a course would simply invert the terms of prejudice, substituting Christian bigotry with Islamic bigotry. In such an interpretation the Muslims would play the role of the heroic and virtuous people, whereas the Christians would bear all the responsibility for the evil done during that period. This perception of “history” merely replaces one stereotype with another. However, some scholars affirm that it could do some good for Muslim children, who as a minority are used to being treated as underdogs and would get some affirmation of their religious culture from a course giving such a high regard to the Muslims.

This plan, however, is short-sighted in that it promotes an inaccurate conception of history that, in the context of the United States, Arthur G. Schlesinger calls “therapeutic history.”24 If this plan were implemented, all groups would want to be taught the Crusades (and, for that matter, other volatile topics) from “their” perspective. Such a relativistic approach to historical events will unavoidably tribalize society and create walls between communities, which will then become closed. This will sound the death knell for the ideal of peaceful integration. One can imagine that the Jews will then (legitimately) claim that they need a course from the “Jewish point of view,” because many of them were massacred during the Crusades, and that they will want these tragic events to be put at the center of the curriculum. Then the secularists will want a “secular” course, not based on religion, analyzing religious intolerance towards the agnostics and atheists during the quasi-totality of history.

Finally, the question is: What would the members of these various groups have to share once they get out of school and become, if everything goes well, citizens of the same nation (not to mention the same cosmos)? They would have

24 See A. Schlesinger, Jr. The Disuniting of America. Reflections on a Multicultural Society. New York City: Norton, 1992, 80.


completely different views about certain periods of history; they would thus mix and confuse facts and values. In such a case, the evil always would come from the “Other,” and, as every group is the “Other” for some group, communication would become impossible, preventing the citizens of the same nation from looking together for the general interest.

The Battle of Memories and the Counter-Example of Taslima Nasreen

The example of the Crusades is interesting in that it shows different possible approaches to the problems facing Muslim minorities in democratic countries. The first one is assimilation. The minority has to adapt, to adopt the majority culture and forget its own memories and traditions. This can take place either in an involuntary way (by the attraction of the dominant way of life), or deliberately (by promoting an education centered on the history and culture of the majority). Teaching an important historical event such as the Crusades from the Christian point of view (supposing that such a unitary perspective exists), clearly amounts to an assimilationist policy: the facts are distorted in one way, which corresponds to the majority prejudices. The second solution is the exact opposite of the first one and could be called coexistence. Here, the minority group will be taught history from the point of view of its “authentic” culture, as it is defined by some leaders and interpreters. Therefore, in the same polity, there will be different approaches to the same subject. However, the notion of “difference” must be carefully analyzed. In coexistence policy, the distance is so big between the two perspectives that no communication is possible. What is good on one side is evil on the other; the hangmen for one group are the innocent victims of the other, and vice versa. As a result, there will an unavoidable clash of memories,25 because these stories have been manipulated and distorted in two opposing ways. One can say that the assimilationist policy promotes majority bigotry in “soft” ways; whereas, the policy of coexistence promotes minority bigotry (in often quite violent ways, due to the historical context described above). One immediately understands that it is impossible to create a community of citizens with individuals who live according to radically opposed conceptions of the world. Prejudice is not an involuntary error that the knowledge of truth would spontaneously eliminate. Contrary to what Spinoza said, truth is not index sui,26 and does not reveal itself by crushing the forces of “darkness.” There is a certain comfort in prejudice, as was already emphasized

25 I refer to this result deliberately as a “clash of memories” rather than a “clash of civilizations.” Actually, in this article, the question turns around false and distorted memories, not civilizations. The “clash of civilizations,” which is a notion used by Bernard Lewis and Samuel Huntington, seems different to me: it means that, if we suppose that the blatant distortions of perspectives and the prejudices are eliminated, civilizational differences will remain, leading to potential “clashes.” But this is a very different question.

26 See B. Spinoza., Ethics (1677). Volume 2. Oxford: Oxford University Press, 2000. “He, who has a true idea, simultaneously knows that he has a true idea, and cannot doubt


above in discussing therapeutic history; this is a narrative of past events that is not only false (scientifically unfounded), but brings with itself some psychological “benefits,” as Freud would have said.27 The very notion of prejudice means that you have judged in advance the facts and values. You already know; you do not have to look in a careful way at the new facts—you insert them into the ready-made framework that constitutes the center of your stereotype. Racism works in such a way: I do not trust the “Other” because I know him in advance, his race a priori convicts him. The psychological benefit of prejudice is clear in this context. It allows me to single out the culprit, the cause of the evil of the misfortunes endured by my community. It creates a simplified world where good and evil are strictly separated: the first characterizes my group, the second defines the other.

The presence of prejudice is visible when we look at the way people accept some facts as being established (that is, proven). For some of these facts, individuals or groups need a colossal amount of proof before accepting them, and even if these facts are given, there remains doubt, as if the evidence is not, and could never be, sufficient. However, these same individuals or groups accept other facts without requiring even minimal evidence. The kind of proof that is required differs from one fact to another. How is this to be explained? In a very simple way. The first category of facts is not compatible with the comfortable prejudice that was created by therapeutic history; the second strengthens the stereotype. In the borderline cases, the facts are simply “dissolved,” and the prejudice reigns supreme, unchallenged. For instance, a couple of days after the 9/11 attacks on New York and Washington, there was a rumor going around that the Jews and Israelis working in the Twin Towers had been absent on the fatal day, because, “of course,” they knew in advance what was going to take place. There was not any proof that could have substantiated such a grave accusation (the rumor implied that the real authors of the attacks had not been Bin Laden and his “associates,” but the Israeli Mossad, or at least there was the implication that the Israeli government knew about the attacks). Despite this lack of evidence, the rumor spread rapidly, convincing thousands of people simply because it reinforced their prejudices.

Another symptom of the presence of prejudice is evident when people judge the same acts differently, depending on the persons who committed them (whether from their own community or from the “adverse” community). When an evil act is committed by a member of the other adverse group, it is taken at face value and immediately morally condemned. When the same act is committed by “my folks,” it is related to a chain of causes (often including prior acts of violence committed by the other), and the act is excused, or at least the moral condemnation softens. In one case you look at the act, in the other you look at the context. In the first, Kant reigns supreme; in the second, Hegel is used. This is a blatant example of a double standard—an infallible symptom of prejudice.

of the truth of the thing perceived.” The phrase “truth is its own standard (index sui)” is in the note.

27 See S. Freud. Civilization and its Discontents. New York City: Norton, 2005.


Cultivating the “difference” in the aforementioned sense—that is, creating several courses on controversial subjects according to the various cultures—will unavoidably lead to the reinforcement of prejudice. The therapy will not cure anything; on the contrary, it will aggravate antagonism and mutual ignorance and incomprehension. As assimilation does not seem to lead to better results, is there a possible third solution that would avoid these disadvantages? Let us call this approach integration. As compared with assimilation, integration requires less from the minority members. They do not have to abandon their cultural bearings; they have simply to accept the conditions of a free and pluralistic society. I have already emphasized the fact that, as Rawls correctly states, if a conflict arises between some values flowing from the community tradition and these conditions (the basic principles of justice in democratic societies), the latter should prevail, which could create trauma. Indeed, for an adherent of monotheism, this amounts to making the law of the creature superior to the law of God.

I assume that the necessary liberalization of Islam will be possible in the context of democratic societies, so that the trauma can be avoided, or progressively “cured.” Under these conditions, everyone is free to live according to the requirements of his or her creed, provided he or she respects the same right for the other members of the polity. The state and society are supposed to be neutral as far as spiritual matters are concerned. The “problem of the Crusades” (and how to teach it) now takes on a different aspect. Integration, understood in the above-mentioned sense, seems to require a common course for all the pupils, in which the various perspectives are confronted and discussed. Historians still disagree about the meaning and the long-term impact of the Crusades. It is true that a lot of violence and cruelty can be documented from both sides. This is not a matter of political correctness; the question is not to distribute in an equal way the blame and praise, but simply to understand and to create a spirit of controversy that would create links of loyalty beyond the various communities of origin. How is this to be realized?

In order to approach the question, let us briefly summarize the story of Taslima Nasreen, a doctor and writer of Bangladeshi descent who used to live in a quintessentially Muslim country. Bangladesh, the former East Pakistan, separated from West Pakistan in 1971 and became an independent state. Pakistan had been created in 1947, after the terrible civil war that had torn apart the subcontinent following the retreat of the British. The very cement binding the country was and is Islam, which is also the case in the former eastern part of the country. Taslima Nasreen, being a Bangladeshi citizen, was interested and appalled by the ethno-religious acts of violence that took place between Hindus and Muslims in India, but also in Bangladesh, where a small Hindu minority remains. If she had written on the violations of the rights of the Muslims by the Hindus, which are well documented by human rights organizations, she would have been celebrated as a national heroine, affirming the evil character of the Hindus and the “natural” position of victims occupied by her Muslim kin. She would have reinforced the (distorted) identity of the group, and would have been praised for that. However, she decided


to do exactly the opposite. She wrote a book entitled Lajja (“Shame”),28 in which she described the predicament of the small Hindu minority in Bangladesh under attack from her fellow Muslims. (These acts of violence are well documented). She was immediately attacked, threatened with death and obliged to leave the country. She currently lives in Northern Europe.

We should not undervalue Taslima Nasreen’s attitude, predicament and fate. She decided to first put her own house in order. She took the mote out of her own eye first. This is a position that has a well-known effect in communities. It incenses the pathology of identity, that is, the passions that lead to an unconditional defense of the group, whatever the acts committed by its members (“right or wrong, it’s my country”). I interpret Taslima Nasreen’s commitment as follows: she considers first that all evil acts must be assessed in the same way, and that the rhetorical strategies used in the battle of memories above are the worst thing to be done. Instead of using double standards (without recognizing it, while accusing the other group of doing it), one has to be impartial as far as universal values are concerned; it is even more important to begin with the evil done by our kin.

Of course, this evil hurts the other community, but above all it corrupts the cause for which all the members of our group are supposed to struggle. She criticizes first the violations of the rights of the Hindus by her fellow Muslims. Such an attitude may be interpreted and evaluated in two radically different ways. First, she can be accused of being a traitor, that is, she attacks her own community; she is not loyal; she shows no real solidarity. But everything here rests on the meaning that is given to the principles of “loyalty” and “solidarity.” If they mean an unconditional dedication to the defense of the group against the Other(s), then no self-criticism can be accepted; it would amount to reinforcing the opponent by conceding a weakness. This is very damaging to the interests of the group in the propaganda battle. In the long run, it has at least two major problems. First, by condoning the evil done by members of the group, it weakens the morality inside and so corrupts the community by being an obstacle to any improvement (which presupposes self-criticism). Second, it creates distrust and fear in the other group, aggravating the tribalization of societies. The unavoidable result of this attitude is that the relationships between communities will be based on a battle of wills, and, in the best circumstances, on fragile and reversible compromises.

Such a position is very similar to the politics of coexistence, referenced above, that is, a space in which closed “tribes” have radically opposed distorted conceptions (prejudices) concerning the same facts and events. Indeed, if one group excuses every evil act done by one of its members in the name of the sacred struggle against the enemy, and if it systematically takes the evil done by the other at face value—as being simply blameworthy—then no bridge can be built over the abyss separating communities and their prejudices. Another consequence of the politics of coexistence is no less deleterious: it traps inside the group the members who would give a more liberal, open and universalistic interpretation of their

28 See T. Nasreen. Shame: a Novel. Amherst: Prometheus Books, 1997.


own culture if they had the opportunity to freely express themselves. However, in such a paranoid atmosphere, the most radical and intolerant will always gain the upper hand. We can thus understand why Taslima Nasreen thinks that she has to begin with the critique of the evil done (in this case, to the Hindus) by members of her community. It is the only way to avoid corruption of the group, distrust and diffidence from members of the other community, and the crushing of liberal minds (in the name of a distorted notion of “loyalty”).

There are other very important examples of such an attitude that can help one understand what is at stake in such a controversy. After the Second World War, it was not unusual to hear the French calling the Germans “Boches.” The derogatory word was meant to indicate that all Germans were in one way or another by “essence” responsible for Nazism. This was—quite understandably—an expression of contempt, distrust and fear. In Germany, the political, educational, and social system conducted a necessary, critical self-evaluation. The completion of this process was memorialized in a very symbolic act by Willy Brandt, then chancellor of Germany, who publicly knelt down in 1970 at the site of the Jewish rebellion in the Warsaw ghetto. Who would, in contemporary France, call the Germans “Boches”?

This is more evidence that France has not become immune from jingoism and racial prejudice. In a sense, one could say that the Germans are no more the main target of the prejudice because of the evolution of history and the advent of new fears (concerning notably the Muslim minorities, especially after 9/11), but in another sense, this change of attitudes is the result of deliberate policies of self-criticism. As long as the Germans did not seem to take a radical distance from the crimes against humanity and genocides that took place under Nazi rule, they were perceived as not being trustworthy, because if they did not clearly condemn these past acts, who could guarantee that they would not condone them today in their own national community? When the long work of critically evaluating its national history was done in Germany, the bridges could be built again between formerly adversarial national communities, because everyone used the same moral standards to judge a behavior, whatever the origin of the act.

Austria might be considered a counter-example, in that the official policy in the post-war period was to present the country as having been “the first victim of Nazism.” This attitude prevented Austria from conducting the same critical evaluation as Germany. The Nazis were welcomed as liberators in Vienna by cheering crowds in 1938, at the time of the Anschluss. The Austrians collaborated in the regime and even in the “final solution” (Eichmann grew up and lived in Austria). Even today, some reports show that there is latent anti-Semitism in Austria, partially due to the fact that self-criticism has not taken place (at least not of the same scale as in Germany). If people do not speak of the past, how can people feel guilty, and, above all, struggle against deeply embedded prejudices?

The same can be said of the attitude adopted by Japan concerning the massacres that took place in China (notably in Nankin) in the 1930s during the invasion of


China. Very recently, China complained again about Japanese textbooks that did not present in an impartial and objective way the crimes committed by Japanese troops.

To take two last examples: Is not the criticism of the suicide attacks against Israeli innocent civilians stronger and more persuasive when it comes not only from the Israelis (which is quite normal), but from some courageous Palestinian intellectuals, who consider that these absolutely unjustifiable acts tarnish the legitimate national cause they struggle for? And is not the critique of Pope Pius XII’s passivity (to say the least) during the Second World War (and even before) concerning the Jewish genocide, stronger and infinitely more persuasive when it comes from prominent Catholics?

This problem is central for the success or failure of the policies of integration that are put into practice, particularly in western, continental Europe. Let us go back for one moment to our example of the teaching of the Crusades. Obviously, the politics of coexistence will promote therapeutic history, criticism of the Others (always the hangmen), and pride in one’s group (always the innocent). The evil done by our kin—whatever the group may be, majority or minority—will be excused or at least downplayed; whereas, in a perfectly symmetrical way, the evil done by the others will be systematically exaggerated. If, on the contrary, there is a course for all the pupils (that is, all the future citizens of the same polity), and if nobody fears self-criticism, then a fabric of communication will progressively be built, allowing mutual recognition and the emergence of feelings of loyalty beyond the narrower links generated by religious communities. This is a real policy of integration, begun by working on one’s mentality. The term “self-criticism” does not imply here that we are individually responsible for the evil done by people who often died long before we were born and have a historical or cultural link with us. In that sense, there is obviously no collective criminal responsibility. However, if we create the link ourselves, that is, if we freely decide to stick to the group so that we excuse everything coming from it, then of course we bear a certain moral responsibility because we endorse the actions and ideals of the group. The pedagogical strategy in such a course would be, first, to help individuals distance themselves from their own community prejudices, then to assess whatever events are the object of the study in as fair and objective a way possible. After that, it will be possible for all people to go back to their own community and be a part of the evolution of the community based on the lessons learned during the discussion.

The Difficulty in Trying to Avoid Double Standards

Reciprocity is the fundamental term when discussing the problem of double standards. Principles of unity and fairness require a single standard be applied universally, regardless of the community. Double standards are often at the core of prejudice and of the intellectual distortion of the perception of reality it involves. If the majority is not able to get rid of double standards within the community, the minority will not budge, and coexistence or forced assimilation, with all their shortcomings, will be the only possible solutions. In order to understand the


Muslim minorities’ perceptions of the double-standards problem, let us briefly go back to the Rushdie affair, followed by a brief analysis of an important decision by the European Court of Human Rights concerning blasphemy.

We have already noted that the violence which took place against the Satanic Verses (burning of the book), its potential readers (phone calls threatening to plant bombs in the bookstores) and Rushdie himself (the fatwa by Imam Khomeini, then President of the Islamic Republic of Iran) was unjustifiable under the standards of democracy and human rights. Therefore, some British Muslims who were shocked by the book (or by what had been said about it), decided to use procedures provided for by the rule of law to express their opposition. They sued Rushdie on the basis of a nineteenth-century British statute prohibiting blasphemy.29 The judges did not conclude that the Satanic Verses were not blasphemous, but simply that a literal reading of the statute clearly indicated that it only protected the symbols of the Anglican religion, which symbols are also common to most Christian denominations. The court might have interpreted the statute more broadly, applying the principles of the statute to all religious symbols. However, the judges chose to apply a strict and literal interpretation of the statute. Had the judges used a broader interpretation, Rushdie would likely have been convicted.

If it must be done, it is for legislators to decide in favor of a more repressive policy in a given domain. It is not the role of the judiciary to make a criminal statute more repressive by interpreting it in a broad way. This could have been explained to the members of the Muslim community, in Britain and abroad, even though the process of explanation would not have been a simple task. Obviously a double standard was applied, in that an attack on the religious symbols of Christianity could be prohibited based on the law, whereas a similar attack against Muslim sacred symbols would have been left alone. The best way for offended Muslims to seek parity in treatment of religious symbols is to appeal to the legislature and to require the application of the most basic principle of formal justice, as Perelman puts it, treating similar situations in similar ways.30

If we can agree on the necessity of eliminating double standards and the legitimate feelings of injustice they generate, there are still strong disagreements concerning the ways this process must go. One can do as many Muslims have done—insist that all religions should be protected from “blasphemy” and thus be put on an equal footing. Conversely, one can hold in the name of free speech that no religion at all must be protected. Regardless of the debate over how double standards should be eliminated, it is obvious that the double standard is untenable, although, as we have seen, the judges can maintain it for a certain time in the name of the separation of powers.

29 R. v. Chief Metropolitan Stipendiary Magistrate, ex parte Choudhury, All England Law Reports, 1, 1991.

30 More exactly: Formal justice is “a principle of action in accordance with which beings of one and the same essential category must be treated in the same way.” C. Perelman. Justice. New York City: Random House, 1967.


Explaining the situation to Muslims who had chosen to seek legal remedies instead of resorting to violence was a difficult, although not an impossible, task. A decision by the European Court of Human Rights undoubtedly aggravated the situation. The Otto-Preminger-Institut v. Austria case, decided in September 1994, is well known because it has generated heated controversy.31 The Otto Preminger Institute, a non-profit organization dedicated to promoting art cinema, intended to show a movie telling the story of Oskar Panizza, an Austrian writer and playwright who had been found guilty of “crimes against religion” in 1895 by the Munich Assize Court, because he had written a violent anti-Christian play, entitled A Council in the Heavens. In 1985, the movie director Werner Schröter made a film in which he told Panizza’s story and included a portrayal of the play. When the Institute wanted to show the movie in Innsbruck, Austria, the public prosecutor instituted criminal proceedings at the request of the Innsbruck Diocese and required its suppression in application of an Austrian anti-blasphemy statute (Section 188 of the Penal Code). The Institute was convicted and the court ordered the forfeiture of the film. After having exhausted the domestic remedies, as is required by the European Convention on Human Rights, the Institute brought the case before the European Commission of Human Rights (an organization dissolved in 1998), which submitted it to the European Court of Human Rights for consideration. To the great surprise of all the opponents of anti-blasphemy statutes, the court upheld the Austrian position and declared that there had been no violation of Article 10 (protecting freedom of expression) of the Convention.

Some of the reasoning used by the court in reaching its decision is of great interest and applicability to this article. The majority of the judges considered that the exercise of the right to freedom of expression by the Institute had violated the freedom of conscience of Austrian Catholics by showing a brutally offensive anti-Christian play. This is another example of a double standard. Again, the Muslim militants could argue that Christianity was protected against blasphemous speech, whereas Islam was not, as the Rushdie affair had clearly showed. Again, the double standard could have been eliminated in one of two absolutely opposite ways, by protecting all religions, or by protecting none. However, the intermediary position is hardly tenable if integration, in the sense defined here above, is to be promoted.

Racism and Islamophobia

The question of double standards, which is so important for many members of Muslim minorities when they are confronted with the majority, must not itself become a prejudice. The argument cannot be used in an illegitimate sense, because doing that would amount to running the risk of confusion; it would ruin the valid part of the reasoning. Very often today, one speaks in an apparently balanced way

31 Otto-Preminger-Institut v. Austria, 11/1993/406/485, decided on September 20, 1994. See, for a comment on the judgment, G. Haarscher. Tolerance of the intolerant?, in Tolerance and Law, Ratio Juris 10(2), edited by L. Gianformaggio. Oxford: Blackwell, 1997.


of Islamophobia and anti-Semitism. But this could lead to confusion. We first have to clearly distinguish between racism and the legitimate criticism of religion. In a well-known and oft-cited judgment,32 the European Court of Human Rights declared that information or ideas which “offend, shock or disturb” were protected by Article 10 of the Convention. The rationale for that position was that speech which does not disturb anyone does not require protection.33 In the majority of the cases, it is “dissident” speech which is threatened. Now—and this point is very important—such a protection only concerns the legitimate criticism of ideas, even if their expression “offend[s], shock[s] or disturb[s].”

This is the reason why the Otto-Preminger-Institut case was so criticized: It seemed to replace the liberal approach adopted in Handyside with a defense of political correctness. Some observers tried to show that it is self-contradictory to defend anti-racist speech statutes, which are common in Europe, and to challenge on the other hand the legitimacy of anti-blasphemy statutes. Why should we accept that Catholics (or Muslims, for that matter) be the “victims” of offensive, shocking and disturbing speech when blacks or Jews would be protected against racist speech, and even against “negationist” speech (that is, basically, the denial of the existence of gas chambers in the Nazi extermination camps)? So the argument goes, either you disagree with Otto-Preminger, and then you have to refuse anti-racist speech statutes, or you must accept that both blasphemous and racist speech are shocking and disturbing, and there seems to be no reason to make an artificial distinction between them.

I strongly disagree with this argument because I think that the mentioned distinction is not artificial at all. In the case of racism, the attack is directed at a person; she is denied equal rights because of the prejudice of the racist, who thinks that she possesses a priori negative characteristics. So black people or Jews (when the racist considers them a “race”) are rejected before they have even expressed an idea. It is not the same with Catholics, or Muslims, or Jews (if the criticism of religion is concerned) or, for that matter, liberals, socialists, freemasons, and so forth, because it is always a possibility for individuals who defend certain ideas to distance themselves from the ideas, to defend or abandon them (in case they are convinced of the legitimacy of the criticism), or to adopt an intermediary position. Where race is concerned, the individual is trapped into the categorization and is a priori rejected. There is no debate about ideas, because such debate only occurs among equals. The Handyside formulation concerns ideas, which might

32 Handyside v. United Kingdom, 5493/72, decided on December 7, 1976.33 “Freedom of expression constitutes one of the essential foundations of such a

society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’” Handyside (1976), 49.


be criticized as offensive, shocking and disturbing speech. It does not concern racism. Civil libertarians might argue that racist speech is not behavior, and that it should not be censored, the disadvantage of having the state meddling in matters of thought (however repugnant the discourse might be) is not outweighed by the advantage of suppressing deleterious racist speech from the public sphere. Even if one accepts this argument, it remains that racist speech and blasphemy, or the shocking expression of ideas, are quite different phenomena. It is perfectly possible to defend anti-racist speech statutes, because one simply thinks that this a priori exclusion of a part of humanity is “too much,” and still attack anti-blasphemy statutes, because they concern the criticism of ideas.

One should not be naïve. In reality theoretical borders are often blurred. One should also acknowledge that reducing religion to “ideas” is a simplified view of that cultural phenomenon. People are strongly and intimately related to their creeds, and these cannot be easily considered “detachable” ideas.34 The fact remains that people sometimes change religion and that this is a right enshrined in the most solemn international and domestic human rights instruments. If anti-religious speech is just a façade hiding a racist attitude, this simply imposes on humankind the task of being vigilant and able to decipher racist speech behind apparently more legitimate expressions. It is very important that the members of Muslim minorities, who are often the victims of blatant racist speech (or behavior), are able to distinguish between the legitimate criticism of religion (or of political positions) and racism. There is, for instance, a lot of anti-Semitism in many Muslim communities, and it does not help to replace racism coming from the “European” majorities with a minority racism, taking over the worst stereotypes of nineteenth-century anti-Semitism.

If the integration of Muslim minorities, as described above, is to have a chance to succeed, we have to work for the sake of clarity in political debate. Confusion of thought only favors tyrants. When similar situations exist, they must be treated in similar ways. When false similarities are invoked—as for instance between racism and blasphemy or vigorous political debate—they must be carefully deconstructed. This is one of the essential conditions for a fruitful integration of minorities that would be faithful to Taslima Nasreen’s example.

34 For a systematic critique of the notion of what I call “detachable” ideas, see M. Sandel. Liberalism and the limits of justice (1982). Cambridge: Cambridge University Press, 1998.

Part II Law and Politics:

Country Case Studies

Chapter 3

Islam and the Law in Germany and EuropeMathias Rohe

Sharī’a has entered European parliaments, administrations, and courts: In several European states legislation on Islamic norms concerning clothing, slaughtering, and family law practices has recently passed or is on the way. Administrations have to deal with the religious or political convictions of Muslims applying for citizenship, and courts are applying foreign law in civil law matters according to the provisions of private international law (PIL) on a daily basis. In early 2008, a lecture given by the Archbishop of Canterbury on religious pluralism and its impact on Western states triggered a heated debate concerning the bishop’s statement that the introduction of parts of the sharī’a in England would be inevitable and could be even helpful.1

A Visible Problem in Germany

In a recent and hopefully singular case, a judge in Frankfurt, Germany refused to grant legal aid to a woman of Moroccan origin who wanted to obtain an immediate divorce according to the legal hardship clause because she was severely beaten by her Moroccan husband. The judge in her reasoning said that, according to the provision in Qur’an Sūrah 4:34, beating wives was common in the culture of origin of the parties, and therefore denied a case of hardship. This decision contains several severe mistakes. It ignored Moroccan law, which does not permit domestic violence (cf. art. 98 sect. 2, 99 of the Moudawana, Moroccan Family Code2), as well as German law of conflicts, which would refuse the application of a foreign provision “allowing” domestic violence on the grounds of German public policy. Besides that, Judge Datz-Winter ignored new interpretations of the Quranic provision, saying that the relevant term has to be interpreted as “to separate” instead of “to beat.”3 This decision, which was reversed shortly after

1 Compare the references available at: www.archbishopofcanterbury.org/1581 (accessed March 15, 2012).

2 See http://www.hrea.org/moudawana.html (accessed March 15, 2011).3 Compare Zentrum für Islamische Frauenforschung und Frauenförderung (Hrsg.),

Ein einziges Wort und seine grosse Wirkung. Eine hermeneutische Betrachtungsweise zum Qur’an, Sure 4 Vers 43, mit Blick auf das Geschlechterverhältnis im Islam, Köln 2005.


being made public, caused a debate in Germany on an alleged “Islamization” of the German judiciary similar to the British situation.

This case was certainly exceptional for various reasons, one of them being the fact that no Muslim demanded the application of such an alleged “Sharī’a norm.”4 Some anti-Muslim fanatics confused the Frankfurt decision with the legitimate exercise of religious rights according to European and German constitutional provisions granting freedom of religion. Thus, these fanatics ignore the very constitutional order they pretend to defend.5

Today, the establishment of representative mosques, including minarets, has become a key issue in continental debates on the scope and limits of religious freedom. In 2009 Switzerland banned by law the building of additional minerets on Swiss soil. That same year, the Austrian state of Kaernten, which was governed by a populist right-wing leadership, changed its zoning laws also to outlaw minaret construction.6 According to a recent representative poll in the Netherlands, majorities of 56 to 87 percent of voters in the main parties support stopping the building of big, visible mosques.7 In Germany, the plans of DITIB (Diyanet Işleri Türk İslam Birliği, Turkish-Islamic Union of the Institution for Religious Affairs,

4 The same was true earlier in 2006 when a Berlin opera decided to cancel the performance of Mozart’s opera “Idomeneo” for obscure security reasons, where the beheading of gods and prophets including Muhammad was added by the “artistic” leader.

5 Sometime earlier a certain Hans-Peter Raddatz went so far as to publicly declare that “a Christian using violence abuses his religion; a Muslim not using violence abuses his religion, too” (“vereinfacht laesst sich sagen, ein Christ missbraucht seine Religion, wenn er Gewalt anwendet, und ein Muslim missbraucht seine Religion ebenso, wenn er nicht Gewalt anwendet”) weltwoche.ch Ausgabe 16/04, Weltwoche-Gespraech (Thomas Widmer), called on March 14, 2007 available at: www.weltwoche.ch/artikel/print.asp?AssetID=7478&CategoryID=62 (accessed July 18, 2011). For critical voices with regard to this “expert” compare also Troll, Islamdialog: Ausverkauf des Christlichen? Anmerkungen zum Buch von Hans Peter Raddatz, Stimmen der Zeit 2/2002, 1, 7. (called on September 4, 2002, available at: http://www.st-georgen.uni-frankfurt.de/bibliogr/troll5.htm (accessed March 15, 2012)).; Hoebsch, Werner, Diffamierter Dialog. Hans-Peter Raddatz und das christlich-islamische Gespraech, Die neue Ordnung Nr. 6/2005, called on March 17, 2012, available at: http://www.die-neue-ordnung.de/Nr62005/WH.html (accessed March 15, 2012).

6 Compare Kärnten beschließt ein gesetz gegen moscheen. Die Presse, February 11, 2008. Available at: http://www.diepresse.com/home/politik/innenpolitik/362068/print.do (accessed March 15, 2012); Kritik an Kärntner Moscheen-Verhinderungsgesetz. Available at: http://religion.orf.at/projekt03/news/0802/ne080212_kaernten.htm (accessed March 15, 2012). For anti-minaret-legislation in the state of Vorarlberg, compare Vorarlberg verhindert Minarette per Gesetz. Der Standard, April 9, 2008. Available at: http://derstandard.at/druck/?id=3296706 (accessed March 15, 2012).

7 Compare Twee derde wil stop op grote moskeeën. Nederlands Dagblad, June 5, 08. Available at: http://www.nd.nl/Document.aspx?document=nd_artikel&id=115299 (accessed July 18, 2011). Only among the voters of the left-ecologist (GroenLinks: 30%) and liberal (D66: 39%) parties supporters of such a stop are minorities.

Islam and the Law in Germany and Europe 49

one of the major Turkish-Muslim organizations), to build a representative mosque in Cologne, including minarets 55 meters in height, triggered protests by extreme right-wing nationalists, but also among some otherwise renowned personalities who have not been known for extremist views thus far. Their complaint was against the “visible claim of power” symbolized by such mosques, in connection with obvious distrust of the initiators.

However, a very broad political majority in Cologne support the plans, arguing that Muslims, as a part of German society, are justified in their demand to become visible in this way. German law would certainly support this view, provided that the construction and environmental regulations applicable to all kinds of construction projects for religious purposes are met.8 Interestingly, the establishment of “visible” representative synagogues in German city centers happened in the later nineteenth century, at the time when the German Jews were granted equal rights for the first time in German history. Obviously, visible symbols of Islam are still broadly perceived to be “foreign.” This is equally true for people living a considerable distance away from Christian institutions. These institutions still have the function of “vicarious religion,” as the British sociologist Grace Davie puts it.9

Thus, the democratic secular legal order, which grants human rights, including the freedoms of religion and conscience equally for all religions and beliefs, has come under fire from Muslim extremists like Hizb-ut-Tahrir, Murabitun, Khilavet Devleti and others, who reject the order as incompatible with their interpretation of Islam, and by self-appointed defenders of the “Enlightened West”/the Christian Occident at the same time. How, then, can a peaceful coexistence in a secular state under the rule of law be organized? In addition, who are the Muslims we are talking about?

The presence of Muslims in Europe dates back to the Middle Ages. Despite this fact, a stable presence of significant Muslim groups (now an overall estimated number of 10 to 15 million) in western, central and northern Europe is a relatively new phenomenon. Millions of Muslims voluntarily stay in European countries whose majority population is non-Muslim. Most of these Muslims have an immigration background, although many of them are born in Europe and more and more are obtaining the citizenship of the country they live in. At the present time, in Germany, there are an estimated number of 3.8 to 4.3 million Muslim inhabitants—around two million being German citizens,10 in comparison to a total German population

8 These are privileged under German law; compare Rohe, Muslim Minorities and the Law in Europe, New Delhi 2007, 83.

9 G. Davie. Vicarious religion: a methodological challenge, in Everyday Religion: Observing Religion in Modern Lives, edited by N. Ammerman. New York: Oxford University Press, 2006, 21–37.

10 Federal Office for Migration and Refugees/Deutsche Islam Konferenz. Muslim Life in Germany. Nuremberg, 2009, 54, 76.


of 82 million.11 This is one of the largest Muslim populations within the European Union besides France (estimates range from 2 to 5 million) and Britain (about 1.6 million). The majority of Muslims presently living in Germany are of Turkish origin (about 2.6 million). Since the 1960s, hundreds of thousands of so-called “Gastarbeiter” (guest workers) were attracted to work in Germany, many of them being Turkish nationals. Therefore, Islamic life in Germany is very much of a Turkish character, while in Britain it is of an Indian character, and in France it is of a North African character. Besides that, there has been also continuous immigration of well-educated people from the Middle East (physicians, engineers, and so forth, mainly from Syria, Lebanon, Iran and Afghanistan), but of a limited number. One motivation for Muslim immigration to Europe has been the search for asylum. Many migrated from the Middle East, the Indian subcontinent and Northern Africa, and since the wars in the Balkans many refugees fled from Bosnia, Albania, Macedonia, and Kosovo. In addition, there have been other Muslim merchants, students and scientists living in Europe for a longer period.

Immigration presents a new situation for Muslims as well as for the countries in which they live and the societies of which they are a part.12 Most of these Muslims were born and grew up in Europe, or at least intend to stay here permanently. The former idea of merely a temporary stay for work or educational reasons turned out to be an illusion. Therefore, the days of provisionary solutions in the organization of individual and social life are over. More and more Muslims are reflecting on their identity and their status in European societies. At the same time, European legal orders have to cope with this new religious identity.

To take Germany as an example; most of the immigrants initially planned to stay in the country for a couple of years at most, to earn some money for a suitable existence in their home-country or to find a temporary refuge until the political situation in their country of origin changed. German legislation and administration tended to share these expectations. Therefore, Muslims—except the relatively small number of German converts—behaved and were treated like temporary guests. Consequently, neither of the parties involved showed too much interest in creating stable and durable legal and social conditions for continuous integration.

After 30 years of a significant Muslim presence in Germany, things have altered fundamentally. Muslims have realized that their initial intention to return to their country of origin has turned out to be a mere illusion. The same is true for the approach of the German administration, which largely followed a policy of mere provisional solutions. Even if some of the older immigrants do not feel comfortable in German society, they stay because they are treated as strangers in their former home country (in Turkey so-called “Almancılar”). Or they stay to

11 Maps of the World (Online). Available at: http://www.mapsofworld.com/germany/population.html (accessed March 15, 2012).

12 Compare M. Rohe. Der Islam—Alltagskonflikte und Lösungen. Rechtliche Perspektiven. 2nd edition. Freiburg/Brusells, 2001, 91; for modern views compare also P. Lewis. Islamic Britain. London: I.B. Tauris, 1994, 52.


keep close contact with their children who insist on staying in Germany, or they stay for adequate medical treatment, which is not available in their country of origin. More and more are obtaining German citizenship. German legislation and administration now have to cope with a stable and meaningful number of Muslims as a part of German society, and they increasingly do so.

Acknowledging a Stable Muslim Population

For successful measures and cooperation it is of prime importance to thoroughly identify examples of good practice and remaining problems. Particularly the reasons of problems very often are not found in Muslims’ beliefs or their religious needs. The major problems concentrate on issues such as lack of knowledge of the language in some European countries like Germany, 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 separated more precisely. But obviously, migration is not restricted to issues of labor, education or political asylum. Immigration states have to face the challenges of remarkably different modes of behavior, self-understanding, beliefs, and values among some groups of immigrants. Certainly, social and cultural differences have been an integral part of European societies, and a large number of immigrants highly appreciate the legal and social framework of European societies in general. This is equally true for Muslim immigrants.

Furthermore, the current perception of Muslims being a homogenous group of people with a strong religious affiliation is simply wrong. A problem Muslims are facing especially since 9/11 is “Islamophobia.”13 According to representative polls in 2006, a large majority of Germans associate Islam with backwardness, oppression of women, intolerance, and fanaticism.14 On the other hand, there are undoubtedly significant problems for European societies resulting from the small, but dangerous number of Muslim extremist activities and some larger tendencies of a harsh anti-western attitude which may lead to an exclusivist attitude towards

13 Compare Stiftung, K.A. edited. Arbeitspapier/Dokumentation, Was halten die Deutschen vom Islam. Sankt Augustin: Konrad-Adenauer Stiftung, 2003, 13, 15. The main results of this representative poll are the facts that Islamophobia is mainly to be found among people living in eastern Germany, among people of a low educational degree, among workers and among retired and elder persons (more than 60 years old); nevertheless, the great majority is ready to accept Muslim life in the country to a remarkable degree, especially those having personal contact with Muslims.

14 Compare Noelle, Elisabeth/Petersen, Thomas, Eine fremde, bedrohliche Welt. Available at: http://www.faz.net/IN/INtemplates/faznet/default.asp?tpl=common/zwischenseite.asp&dox={6E996DC7-5D2B-3660-75DE-A06AB6A51BC2}&rub={594835B6-7271-4A1D-B1A1-21534F010EE1} (accessed July 18, 2011). Figures range between 60 and 91%.


other Muslims and society as a whole.15 Many Muslims in Europe still seek practical solutions for organizing their lives in accordance with the demands of European legal orders and Islamic religious commands. It is only within the last few years that Muslims have also tried to formulate theoretical statements to clarify their positions and possible conflicts between legal and religious rules, and to find adequate solutions for such conflicts.16 Furthermore, a considerable number of Muslims are not particularly interested in performing religious practices, but still do not deny their Muslim identity. Others are attached to Sufi (mystic) beliefs and practices, considering the “superficial” rules of medieval fiqh (Islamic jurisprudence) to be of little importance.

Nevertheless, an obviously increasing number of Muslims are eager to achieve more certainty in defining their position as European Muslims. The crucial question for them is to define Muslim identity—including the practical fulfillment of Islamic rules—which are part of the sharī’a, within the framework of European legal orders.

The European Legal Framework and Sharī’a Norms

Today, the starting point for application of norms is that it remains upon the ruling law of the land solely to decide whether and to what extent “foreign” norms might be applicable in Europe. This is a kind of meta-rule all over the world in every legal order. Thus, the legal system is not “multi-cultural” as far as it concerns the decisive exercise of legal power; but within this frame, the legal system is pluralistic to a certain extent.

With regard to the application of Islamic norms in Europe, we need to differentiate between religious and legal issues. The former are regulated by European and national constitutional provisions like Article 9 of the European Convention on Human Rights (ECHR), which grants freedom of religion. The scope of these rules is not restricted to private worship, but they also grant an adequate (but not an unlimited) protection of religious needs in various aspects of public law (from building mosques to social security issues) and private labor law (for details, see below).17 Nevertheless, there are some differences in application

15 Compare the contributions in Berlin, Senatsverwaltung für Inneres, edited. Islamismus, Berlin 2005.

16 Excellent studies of present developments are presented by Shadid, W. and van Koningsveld, S. Religious authorities of Muslims in the west: their views on political participation. Intercultural Relations and Religious Authorities: Muslims in the European Union, Leuven: Peeters, 2003, 149; J. Waardenburg. Muslims and Others: Relations in Context, Berlin, 2003, 241, 308 and 336.

17 Compare M. Rohe. Muslim Minorities and the Law in Europe, New Delhi: Global Media Publications, 2007, 79, 82–8.


among several European countries. This is due to differing convictions regarding the desirable degree of distance between the state’s activities and religions.18

France and Switzerland, for example, have chosen a strict separation between state and religion. Therefore, it is not allowed for officers or even for pupils in France according to new legislation to exhibit ostensible religious symbols during their working times, for example, in schools, whereas in Britain teachers, police officers or lawyers in court may wear a veil. In 2007, the president of the Danish Supreme Court Melchior stressed that according to his convictions, Muslim female judges or lawyers wearing the headscarf in court would contribute to integration. A similar view was expressed by Danish Prime Minister Rasmussen.19 Now, the Danish debate has changed, with the government discussing legislation aimed at explicitly banning the headscarf in courts.20 The headscarf issue will likely continue to occupy broad space in parliamentarian and public discussions in Europe, mostly by male discussants on all sides.

The European Court of Human Rights accepts such differences according to various cases. For example, it has refused to strike down bans on teachers21 and students22 wearing headscarves in schools or universities as a violation of Article 9 of the ECHR. Nevertheless, the ECHR would grant a very considerable European minimum standard, whereas some national constitutions, including the German one, open up even broader space.

In Germany, the most important provision on religious affairs is Article 4, sections 1 and 2 of the German Constitution: “Freedom of faith and conscience, and freedom to profess a religious or philosophical creed, shall be inviolable. The undisturbed practice of religion shall be guaranteed.”23 This article is not limited to private religious convictions. It also grants the public manifestation of belief, and the state is obliged to take care that this right is not unduly limited. Of course, there are legal limits to rights, including religious ones. For example, no one would be allowed to threaten others on religious grounds. Nevertheless, the German legal

18 For an overview compare U. Khaliq. Islam and the European Union: Report on the United Kingdom, edited by R. Potz and W. Wieshaider. Leuven: Peeters 2004, 219; European Parliament, Directorate General for Internal Policies of the Union, Islam in the European Union: What’s at Stake in the Future? May 2007 (PE 369.031); Rohe and Elster. Zur öffentlichrechtlichen Situation von Muslimen in ausgewählten europäischen Ländern, in Bundesministerium des Inneren Wien/Sicherheitsakademie, Perspektiven und Herausforderungen in der Integration muslimischer MitbürgerInnen in Österreich. Wien, May 2006.

19 Rasmussen, rest çekti: Başörtülüleri rahat biraktın. Zaman Denmark June 7, 2007 (Hasan Cücük).

20 Compare Kopftuchverbot für Richterinnen. Sueddeutsche Zeitung, May 16, 2008, 8.21 Dahlab/Switzerland February 25, 2001, NVwZ 2001, 1389.22 Leyla Shahin/Turkey, November 20, 2005, NVwZ 2006, 1389.23 Constitution Society. (Online). Available at: http://www.constitution.org/cons/

germany.txt (accessed March 15, 2012).


system provides a far-reaching freedom of religion. This freedom is, according to the unanimous opinion among legal experts and the German government and administration, not restricted to established religions like Christianity and Judaism, but also applies to Islam. Furthermore, Article 3, section 3 of the German Constitution prescribes that no one may be discriminated against, or given preferential treatment, for reasons of their religious belief.

In sum, secular legal orders like that in Germany, do not reject religion; they are not at all anti-religious (“lā-dīnī”), as it is sometimes wrongly understood.24 To the contrary, they offer a broad space for religious belief and life, including the establishment of religious organizations, places of worship or private schools, religious instruction in public schools according to the German educational system, social security payments for religious burials and other rites for those in need.25 Only the state itself has to be neutral and is prevented from interfering with 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 religion. According to a unanimous understanding in Europe, this neutrality is a prerequisite for true religious freedom, which cannot be dispensed with. A prominent French Muslim accordingly describes this system as one of “positive neutrality” (that is, towards religions).26

At the same time, there is no such thing as a “European Muslim public.” Interaction between Muslims living in different member states is rare, due to the obvious lack of a common language, as well as to still existing ethnic and denominational borders. One should avoid considering Muslims (as well as non-Muslims) to be a group of one mind. There is a lot of pluralism within these groups, and many conflicts as well, which are generally not rooted in religious grounds. The Muslim communities in Europe are not unified at all; there are “Turkish,” “Arab,” and “Bosnian” mosques, which only believers of a certain ethnic background use to pray.

As far as sharī’a norms and the scope of their application in Europe are concerned, one has to keep in mind that there are fundamentally different perceptions of the meaning of sharī’a. In a literal sense as well as according to a Qur’anic verse (XLV, 18), the term means “the path which has been prepared, the divinely appointed path.” There are two additional definitions, differing remarkably from each other and often causing misunderstanding in public discussion. In a broader sense, “sharī’a” refers to any kind of religious and legal rule prescribed by Islam. This includes rules on fulfilling the duties of worship or alms-giving, as well as those regulating contract, family or penal law. However, most non-

24 Compare H. Bielefeldt. Muslime im Säkularen Rechtsstaat. Integrationschancen Durch Religionsfreiheit. Bielefeld: Transcript Publishing House, 2003, 60.

25 For details concerning several European states, compare B. Aluffi and G. Zincone. The Legal Treatment of Islamic Minorities in Europe. Leuven: Peeters Publishers, 2004.

26 S. Bencheikh. Marianne et le Prophète—L’Islam Dans la France Laïque. Paris: Bernard Grasset 1998, 57.


Muslims in Europe, as well as many Muslims, especially those of Turkish origin, would understand the term “sharī’a” in a narrower sense, confining it to the legal rules regulating personal status, family and inheritance, and corporal punishment.

Whereas the application of rules concerning prayer, fasting, and so forth usually does not cause major problems, the application of the rules regarding personal status, family and inheritance, and corporal punishment would lead to serious conflicts. This is due to the fact that legal discrimination between the sexes or between religions, which is still found in the traditional formulation and interpretation of Islamic legal rules, clearly contradicts the human rights provisions in European constitutions and the ECHR. The same is true for the draconian forms of corporal punishment for certain offenses which are still practiced in a number of Islamic countries. There is a widespread fear that the Muslim presence in Europe could lead to the (re-)introduction of similar rules in the long run.

Therefore, two general aspects should be made clear. First, the fundamental principles of democracy, the rule of law, and the protection of human rights are not submitted to any legislature which might intend to reduce or to abolish them. Second, the vast majority of Muslims in Europe support these principles, rather than reject them. Besides a small number of Muslim extremists who demand the application of traditional Islamic penal law, only in the UK is there a broader discussion among Muslims on the introduction of a Muslim law of personal status and inheritance. According to a poll among 500 British Muslims in 2006, an average of 40 percent supported the introduction of sharī’a law in predominantly Muslim areas in Britain.27 Considering the fact that some important traditional rules of Islamic law in this sphere would contradict the principles of the existing legal order (see below), these initiatives are heavily rejected.

The Application of Sharī’a Norms: Scope and Limits

Religious Norms

As far as the application of “foreign” norms goes, we have to differentiate between religious and legal issues. The former are regulated by European and national constitutional provisions. The secular state granting freedom of religion has to treat every religion equally. Therefore, no religious norm can be considered to be “foreign” or “alien” or “domestic,” and all religions have to be treated equally in an Aristotelian sense—which includes unequal treatment as far as they are factually unequal. These norms are applicable on two formal levels.

First, all religions must be enabled to enjoy their individual and collective religious rights equally. This includes religious practice in public space, as mentioned above. Religion even affects the law of social security. For instance,

27 Available at: http://www.icmresearch.co.uk/pdfs/2006_february_sunday_telegraph_muslims_poll.pdf (accessed March 15, 2012), 14.


courts have held that in the case of financial need social security funds have to pay for the costs of a boy’s circumcision,28 for the ritual washing of the body of a deceased Muslim,29 and 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 available in the state.30 On the other hand, the Administrative Court of Mainz dismissed the claim of a Muslim woman wearing a niqab (which leaves only the eyes visible) for social support because this special kind of clothing would prevent her from finding employment, and she did not offer any explanation for the necessity of wearing it.31 Furthermore, German social security law treats polygamous marriages as 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 European32 legal standards; therefore, it cannot be contracted legally in Europe).33 The reason is that it would not help the second or other wives who may have lived in such a kind of marriage for a long time and could deprive them of their marital rights of maintenance, and so forth. For example, paragraph 34, section 2 of SGB I (Social code I) contains provisions on social security systems regulating the per capita division of pensions among widows who lived in a polygamous marriage.34 However, German law differentiates between predominately 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, for example, concerning residence permits.35 This treatment of polygamous marriages differs from other European countries. In England, courts have rejected claims of widows who have lived in such marriages

28 OVG Lüneburg FEVS 44, 465 ss.29 VG Berlin NVwZ 1994, 617.30 See OVG Hamburg NJW 1992, 3118, 3119.31 VG Mainz, February 26, 2003, Az. 1 L 98/03.MZ—not published.32 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, compare Mann wird Partner zweier Frauen, FAZ 05.10.2005, 9. It is highly recommendable to adjust these laws to European standards agreed upon for centuries.

33 Compare LG Frankfurt a.M. FamRZ 1976, 217; LG Osnabrück NJW-RR 1998, 582; AG Bremen StAZ 1991, 232, 233; Staatsanwaltschaft bei dem LG Muenchen I IPRspr. 1996, 62; VGH Kassel NVwZ-RR 1999, 274, 275.

34 The English solution differs fundamentally from the German one. None of the widows is accepted to be one legally, compare Court of Appeal in Bibi v. Chief Adjudication Officer, 1998, 1 FLR 375.

35 Compare OVG Koblenz, March 12, 2004, 10 A 11717/03—not published.


and seek to obtain widow pensions, with the result that none of the wives received a payment.36

From the legislature’s perspective, one should weigh the possibly conflicting goals. One goal might be to establish clear-cut legal norms in accordance with common legal standards—such as the solely accepted institution of monogamous marriage—which would lead to a total rejection of legal institutions validly used by the parties involved in other parts of the world. Another goal might be individual justice for persons relying on legal relations validly created under other jurisdictions as far as it concerns their claims against their partner, even if the deciding jurisdiction rejects the kind of institution these relations are based on. In this case, it has to be made clear that the “individual” support does not mean acceptance or approval of the institution at stake, polygamy in this case. In contrast, the “clear-cut” regulation approach would leave weaker parties without any kind of legal protection, possibly creating a parallel system of social norms among the parties involved. Thus, every solution will come with a price to be paid.

Secondly, constitutional guarantees concerning freedom of religion may have an impact on civil law. Employment law might be most affected. In this field, the potentially conflicting interests of employers and employees have to be brought into accordance by weighing the respective intensity of the employee’s religious needs against the company’s needs.37

In general, most Muslim employees do not face problems concerning the legal status of their employment. Acceptable solutions can be found in most of the cases for those who pray regularly. Many either pray during the regular breaks or concentrate their prayers in the morning and evening. In Britain, a bus driver claiming the right to interrupt his work five times a day for prayer lost his case for obvious reasons.38 On Fridays, employers often grant breaks for joint prayer in mosques or allow their employees to finish their work earlier. For the feasts of ‘īd al fitr and ‘īd al-adhā, vacation time can usually be used. If there is an inevitable need of presence during prayer or ‘īd times, Muslim employees in general would accept that and would perform the prayer at a later time, relying in this case on the Islamic principle of necessity (“darūra”), which allows them to prefer the minor evil to the major one. Therefore, the last case reported concerning employment law and the duties of prayer or the ‘īd-feasts dates from 1964.39 Since then, fitting solutions have been found, but sometimes only by the aid of courts: The Labor

36 Court of Appeal in Bibi v. Chief Adjudication Officer, 1998, 1 FLR 375; compare D.S. Pearl. Islamic family law and its reception by the courts in England. Harvard Law School Islamic Legal Studies Program: Occasional Publications. May 2000, 14.

37 For details, compare M. Rohe. Schutz vor Diskriminierung aus religiösen Gründen im Europäischen Arbeitsrecht—Segen oder Fluch?, in Gedaechtnisschrift fuer Wolfgang Blomeyer, edited by Krause and Veelken and Vieweg. Berlin, 2004, 217.

38 Reported in Shadid/Van Koningsveld, Religious Freedom and the Position of Islam in Western Europe, Kampen 1995, 102.

39 LAG Duesseldorf JZ 1964, 258.


Court of Cologne40 decided in favor of a Muslim woman working as an attendant for pupils in school buses who wanted to perform the ritual pilgrimage to Mecca. The employer had refused her application for leave, telling her to wait for a time when school holidays and the days of pilgrimage would coincide (which would be after 14 years!), and ignoring the fact that her already aged mother was able to care for her disabled child at the moment, but probably would not be 14 years later.

Finally, religious norms can be applied on an informal level, merely by practicing them. It is mainly in the sphere of religious rules—concerning the relations between God and human beings (‘ibādāt) and the non-legal aspects of the relations among human beings (mu’āmalāt)—where a European sharī’a (in this context: Islamic “theology”) is developing.41 In such cases, the opinions given (fatwas) distinguish between legal validity of the transactions at stake and their religious acceptability. This is not a new development in Islam, but relies on the traditional distinction between the religious and the legal dimension of human behavior (for example, the distinction between the categories of “forbidden,” “harām,” and “invalid,” “bātil”).42

Legal Norms

Foreign legal norms, sharī’a provisions among them, are applicable on three possible formal levels. With respect to the formal application of legal rules, the conflict between contradicting rules of the law of the land and laws of religious or cultural origin has to be solved. The state has no control over informal application as long as its bodies are not called upon by one of the parties involved.

Private international law (the rules regulating the conflict of laws in matters concerning civil law) is a possible level of direct application of Islamic legal rules. Today, there is almost no legal system that refuses the application of foreign legal rules in general. Civil law essentially regulates the legal relations between private persons. The welfare of those persons, including reliability of existing legal relations while crossing “legal borders,” is of prime importance. Nevertheless, the legal community may decide that in certain matters the same substantial law should be applicable to every resident in a particular country. This would especially be the case in matters touching the roots of legal and societal common sense. The

40 Available at: www.justiz.nrw.de/nrwe/arbgs/koeln/arbg_koeln/j2008/17_Ca_51_08 urteil20080812.html (accessed March 15, 2012).

41 Compare M. Rohe. The Formation of a European Shari’a, in Muslims in Europe, edited by J. Malik. Münster: LIT, 2004, 161; excellent studies of present developments are presented by Shadid, W. and van Koningsveld, S. Religious authorities of Muslims in the west: their views on political participation. Intercultural Relations and Religious Authorities: Muslims in the European Union, Leuven: Peeters, 2003, 241, 308, 336.

42 Compare Rohe, M. Islamisches Recht: Vergangenheit und Gegenwart. Munich: Verlag, 2009, 10.


question as to whether foreign or national substantial law should be applied must therefore be determined, and this is done by private international law provisions.

The application of foreign provisions must comply with the rules of the relevant public policy (British, German, French, and so on). There are a huge number of legal sharī’a provisions which do not contradict European laws, for example, the law of contract, and which therefore may be applied within the framework of the existing laws. The main conflicts between “Islamic” and European legal thinking in family and inheritance law concern 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. In contrast, classical Islamic Law preserves a strict separation between the sexes with respect to their social roles and tasks, as well as far-reaching legal segregation of religions under the supremacy of Islam.

For example, according to German private international law, the application of the Islamic rule of unilateral divorce by the husband (“talāq”) would contradict the public order in cases where a wife was not able to claim her legitimate interests or was not even informed about this talāq. In other cases, where the prerequisites of a divorce according to the respective family law in Europe would be fulfilled in a comparable way, the legal result of such a “divorce” would be accepted by the ruling legal order. Certainly, the husband’s unilateral right to divorce contradicts the equality of sexes as well as the norms on the state’s monopoly in divorce cases. Nevertheless, according to the German view, the norms protecting the public order do not have the intention to judge foreign norms as such.43 In Austria, the outcome would be different. The Supreme Court44 refuses to accept any kind of talāq whatsoever. Here again, the crucial question is whether the legislature and the courts have to measure the foreign legal institution as such by the respective internal norms, or whether only the outcome of its application in a concrete case has to be controlled.

A further area of indirect application opens up within the framework of the so-called “optional” civil law. For example, various methods of investment are offered which do not violate the Islamic prohibition of usury (“ribā,” which according to traditional views means the general prohibition of accepting and paying interest). Concerning project finance, Islamic legal institutions like the murābaha or the mudāraba (forms of companies) can be used. In the UK, a special concept of “Islamic mortgages” has been developed, which allows Muslims willing to purchase real estate to avoid conflicts with provisions concerning ribā (when paying interest on “normal” mortgages). Even the German state of Sachsen-Anhalt has placed “Islamic” bonds to attract Muslim capital.

In the field of matrimonial law, tendencies of implementing Islamic norms into optional law can also be identified in Germany with respect to matrimonial

43 Compare Rohe, M. Islamic law in German courts. Hawwa 1, 2003, 46, 50.44 OGH decision of 31 August 2006, 6Ob189/06x, Zeitschrift für Rechtsvergleichung

2007, 35; OGH decision of 28 June 2007, 3Ob130/07z; both decisions available at: http://ris.bka.gv.at (accessed March 15, 2012).


contracts. Thus, in Germany contractual conditions regulating the payment of the “Islamic” dower (“mahr” or “sadāq”) are possible and generally accepted by the courts.45 Other contractual regulations, especially those discriminating against women,46 could be void according to § 138 BGB (German Civil Code) on the protection of good morals.47 There are no known court decisions on such issues so far. However, some German notaries refuse to assist in formulating wills48 containing the classical Islamic regulation on half-shares for female heirs.

In addition to general rules of private international law and optional civil law, a few European states introduced Islamic legal provisions concerning family and inheritance matters to be applied to the Muslim population on a basis of choice. In Britain, Muslim institutions may apply for authorization to register marriages. Furthermore, according to the Divorce Act of 2002 (Religious Marriages Act), courts may require the dissolution of a religious marriage before granting a civil divorce.49 The Adoption and Children Act of 2002 amended the Children Act of 1989 by provisions introducing a “special guardianship” as a legal means of parental responsibility besides adoption, which is forbidden by Islamic law (section 14 A ss).50 This option is not formulated on a religious basis, thus it is open for everyone irrespective of religion.

In Spain, since 1992, Islamic rules regulating the contracting of marriages are applied to Muslims.51 In order to ensure the necessary legal security, there are compulsory provisions for the registration of these marriages.52 This kind of legal segregation is very limited, concerning mere formal regulations without any relevant substantive quality.

Interestingly, in Spain, the legislature has also amended Article 107 of its Código Civil regulating the right to divorce. The amendment enables women

45 Compare BGH NJW, 1999, 574; OLG Celle FamRZ, 1998, 374; OLG Saarbruecken NJW-RR, 2005, 1306.

46 Compare Rohe (2003), 40.47 § 138 sect. 1: “A legal transaction which offends good morals is void.”; compare

Rohe, M. Islam und deutsches Zivilrecht, in Beiträge zum Islamischen Recht II, edited by H.G. Ebert and T. Hanstein. Frankfurt: M: Lang, 2003, 35, 51.

48 The validity of wills does not depend on such assistance according to German law of inheritance.

49 Compare N. Ahmad. Notes on the judicial situation of Muslims in the United Kingdom, in Muslime im Rechtsstaat, edited by T.G. Schneiders and L. Kaddor. Münster: LIT Verlag, 2005, 72.

50 Compare Qur’an surah 33, 4. s ; art. „tabanni” in: wizārat al-awqāf, al-mawsū’at al-fiqhīya vol. 10, Kuwayt 1987; for present legal orders in the Islamic world compare Pearl, D. and Menski, W. Muslim Family Law, London: Sweet & Maxwell, 1998.

51 Compare Mantecón, L’Islam en Espagne, edited by Potz and Wieshaider , 16, 109, 130 ss.

52 Compare Article 59 Código Civil in conjunction with the administrative provision of the general directorate of the Civil Registry and the Notary from 10 February 1993.


residents in Spain to get divorced even if the law of their country of origin or of their matrimonial home prevents them from doing so. The legislature has stated expressly that this amendment was to solve problems regarding Muslim women.53 These are exceptional cases relating to formal provisions. In other European states such legislation is not discussed. In Germany, most of the Muslims of Turkish or Bosnian origin would heavily refuse the introduction of any kind of legal sharī’a rules. In addition, the existing legal orders in the Islamic world are so different on substantial issues that a “common” set of sharī’a rules would be extremely difficult to identify.

Overall, however, European states have chosen the model of centralizing the definition and enforcement of core rights and duties to the people as a whole, irrespective of group membership. Thus, in the case of conflicts between commonly defined individual rights and collective claims, the former will prevail. The constitutions in force do not permit another solution. For instance, the introduction of legal rules abolishing gender-neutral equal rights by a mere system of “equal dignity,” distinguishing between the sexes on the basis of typical social roles, would clearly violate the respective constitutional norms. Further, personal and family matters cannot be seen to be a merely “private” matter.

Muslim Positions and Attitudes Towards the European Secular Democratic State Under the Rule of Law

Despite the partial blend of Islamic and European law, there are five models of attitudes among Muslims with respect to the given European legal framework. These patterns certainly do not describe individuals, but typical approaches among groups. In terms of quantification it is a very tentative approach because there is little empirically reliable data from European countries.

The “Muddling Through Approach” (pragmatics)

A considerable number of Muslims simply do not care about religious positions towards the state for several reasons, such as rejection of “orthodox” rules and positions and preference for mystic ways. They simply accept the European legal and social framework in their daily life without any further theoretical reflections on that topic. Certainly, they face problems, but usually because of their economic or educational status. Some of them, who have not obtained citizenship, would also complain about being prevented from participating politically in their countries of domicile. Several polls, for example, in Austria, indicate that this group of pragmatists is the largest group of Muslims in Europe. According to

53 BOE 30-09-2003, Ley Orgánica 11/2003, de 29 de septiembre, de medidas concretas en materia de seguridad ciudadana, violencia doméstica e integración social de los extranjeros, 4.


polls in Germany among Muslims of Turkish origin,54 a vast majority would accept democracy as the best political regime available and actively support it. A new study among Muslims in Germany in general also supports this view, while showing that there is a significant minority of about 10 to 12 percent who are susceptible to radicalization.55 One should not forget that a considerable number of Muslims have more or less lost their relationship with religion and religious practice in daily life. From a religious point of view, there is no bar whatsoever among this group to actively participating in a democratic secular state and its society.

“The Ex-Muslim” Approach

In recent years, some Muslims have formulated extremely critical positions towards Islam, due to negative personal experiences (“the faction of the angry women”), like Ayaan Hirsi Ali in the Netherlands and Necla Kelek in Germany. In Germany, the “Central Council of Ex-Muslims” was established, which follows a harsh anti-religious path. Their views range from demanding a fundamental reform of Islam to believing that Islam is not prepared for any reform whatsoever, and that therefore the choice between the secular democratic state and the adherence to Islam is inevitable. As Kelek puts it:

For me Islam as a Weltanschauung and a system of values cannot be integrated into the European societies … It lacks the institutional, structural and theological prerequisites for that … Islam is not capable of integration, whereas the single Muslim as a citizen is. He may preserve his belief and his identity in our society, as the European tolerance of enlightenment perceives the members of all religions to have equal rights.56

This approach aims at a complete assimilation of secular concepts, while abandoning religion.

The Exclusivist Approach (Islamists)

Among those interested in normative issues concerning the relation between Islamic norms and European orders, there is a small but dangerous group of extremists that reject European orders and demand the supremacy of Islamic norms as a whole. They denounce European legal orders as consisting of weak and arbitrary man-made laws, fundamentally contrasting with the law of God as they

54 Compare U.V. Wilamowitz-Moellendorff, Türken in Deutschland—Einstellungen zu Staat und Gesellschaft, edited by Konrad-Adenauer Stiftung. Arbeitspapier 53, 2001, 7.

55 Compare Bundesministerium des Innern, Muslime in Deutschland, Hamburg, 2007, Brettfeld/Wetzels, 492.

56 N. Kelek, Freiheit, die ich meine. Frankfurter Allgemeine Zeitung, 2007, Z 1-Z 2.


perceive it, and lacking moral standards. Only a small number of them are ready to use violence in promoting their goals; the vast majority would restrict themselves to argumentative activities. But this still creates an atmosphere of structural rejection of the surrounding society, which could enable further radicalization.

Groups like Khilavet Devleti, Hizb-ut-Tahrir or Murabitun should also be mentioned in this context as individual preachers of hatred.57 The last chairman of Khilavet Devleti, for instance, openly refused to submit to German penal courts when he was accused (and later convicted) of the murder of a rival “caliph” in Germany. Also, organizations like Tablighi Jamaat cannot be omitted here. Despite their—at least verbal—rejection of violence, their ideology is based on the anti-colonial approach of the Indian Deoband school. They adhere to a largely anti-western and anti-Christian ideology. Even in the Bavarian countryside, there were activities such as disturbing the procession held on Palm Sunday in 2006 in the Franconian village of Pappenheim. Disconcertingly, such groups, which are often run or supported by itinerant preachers, try to influence those newly immigrated, who are living in especially unstable conditions.

One of the few voices publicly demanding the introduction of Islamic law and Muslim arbitration in Germany is Sālim Ibn ‛Abd al-Ghanī al-Rāfi‛ī, the extremist founder of an Islamic center in Berlin. In his book, The Rules of Personal Status of Muslims in the West,58 he constantly refers to non-Muslims as infidels and rejects German legal rules and judgments as “rules of infidelity.” Consequently, he urges Muslims in Germany to maintain the rules of traditional Islamic family law. He even argues that the traditional punishment for adultery—flogging or stoning to death—should be applied to Muslim women in Germany who are married to non-Muslims, even if they are unaware of the “applicability” of these rules!59 He denounces the German system of social security to be an evil because it grants wives independence from their husband’s maintenance payments and thus enables them to “disobey” their husbands.

Finally, extremist literature is spread in many Western countries,60 heavily funded for example, by Saudi Arabian organizations. This literature is extremely traditionalistic at best and often extremist in its attitudes towards non-Muslims

57 For details compare, for example, Rohe, M. Islamismus und schari’a, in Bundesamt fuer Migration und Fluechtlinge: Integration und Islam, Nuernberg 2006, 120, 131.

58 Sālim Ibn ‛Abd al-Ghanī al-Rāfi‛ī, ahkām al-ahwāl al-šakhsīya li l-muslimīn fī l-gharb, Riyadh, 2001. Compare Rohe (2006), 98, 109.

59 Compare A. Mohammed. The Federation of Students Islamic Societies, Essays on Islam, Essay Competition, Winning Entries 1995, Leicester 1995, 14, 37. The results of an essay competition among Muslims in Britain on issues concerning penal law. The winner quotes a Muslim author saying that Europeans are afraid of the application of Islamic penal norms (ordering harsh corporal punishments which are contradicting Human Rights) because they have a criminal nature and wish to commit unjustifiable crimes.

60 Compare, for example, M. Rohe. Muslimische identitaet und recht in Kanada. RabelsZ, 72, 2008, 459, 495.


and western societies as a whole. Those who follow such ideas seek to live in far-reaching segregation from “non-believers” around them. It is not by accident that Sālim Ibn ‛Abd al-Ghanī al-Rāfi‛ī’s book was published in Riyadh.

The Traditionalistic Approach

Those following traditionalistic approaches usually strongly reject the extremist ideology mentioned above, as far as it concerns the use of violence or the attempts to gain political power. On the other hand, there are remarkable similarities between traditionalists and Islamists with respect to “social norms” concerning gender issues. Traditionalists do not represent the majority of Muslims in Europe, but are the best organized group, particularly in mosques.

Traditionalists mostly intend to cooperate with non-Muslims and are ready to integrate into a given European order, but maintain a very traditional position towards gender-related issues and in matters of orthopraxy. They believe in the concept of preserving religious identity in a structurally “alien” environment. In general, they use traditional medieval approaches without considering modern approaches of re-interpreting relevant sources, like the Qur’an, according to time and place, which is part of Islamic tradition, too.

A defensive stance of this approach towards the “preferable Muslim life in Muslim societies” is characteristic for its European adherents. In cases of need for adaptation of their religious practice to the given conditions, they justify them by the principle of necessity (darūra)—need prevails over rules and admits exemptions. Thus, they perceive themselves to live in a permanent state of religious emergency. This position is based on the medieval Islamic concept of the two worlds—dār al-Islām, house of Islam and dār al-harb, house of war—in confrontation, but with a zone connected to the Islamic world by (temporary) peace treaties (dār al-’ahd)61 where Muslims can live in security and therefore are obliged to respect the ruling law of the land. Nevertheless, in the past many Muslim lawyers advised against long stays abroad (outside the dār al-Islām), fearing that this could prevent Muslims from fulfilling their religious duties.62 This fear is obviously due to historical events and experiences during the Reconquista, the Crusades, and later hostile encounters between Christian European and Islamic

61 Compare dār al-’ahd, in Wizārat al-awqāf wa l-šu’ūn al-islāmīya (Ed.), al-mawsū’at al-fiqhīya. Second Edition, 20. Kuwait, 1990; Khālid ‘Abd al-Qādir, fiqh al-aqallīyāt al-muslima, Tarābulus 1419/1998, 59 as well as the references in Encyclopedia of Islam II, Leiden 1991 under dar al-sulh (Macdonald).

62 Compare I. Rušd. al-muqaddimat al-mumahhida. Cairo 1325/1907 Vol. 2, 286; even stricter statements in al-Qayrawānī, kitāb al-ğihād min kitāb al-nawādir wa l-ziyāda (Ed. v. Bredow), Stuttgart 1994, 486; Khoury, Islamische Minderheiten in der Diaspora, Mainz 1985, 128; compare also K. Miller. Muslim minorities and the obligation to immigrate to Islamic territory. Islamic Law and Society 7, 2000, 258.


powers.63 It is not by accident that the concept of the fundamental distinction between two opposite houses was mainly created in these times. Similar points of view can still be found today among very traditional, sometimes extremely anti-Western lawyers.64 The central point of fear is that the Islamic world may be weakened by migration. However, this obviously does not correspond with our present reality: according to a new survey one-third of all Muslims live outside Islamic states, many of them by their own choice.65

Thus, the concept of dār al-’ahd may serve as a foundation for a peaceful co-existence in a diaspora situation, since it obliges Muslims not to break the law of the land in exchange for being granted personal security and protection by the state of residence. However, it is doubtful whether the self-definition of a “diaspora” would be very helpful for actively being part of and contributing to society as a whole.

Nevertheless, some Muslims are developing a so called “fiqh al-aqalliyāt,” a system of rules for Muslim minorities based on traditional concepts. According to this system, Muslims are entitled to live in European states, are obliged to accept the ruling law, and may find viable solutions in practicing their belief as a minority. But within this system, Muslims structurally define themselves as “foreigners” in European societies. Some try to maintain or to promote the application of Islamic legal norms to the broadest possible extent in European states.

In sum, traditionalistic views enable Muslims to justify a peaceful co-existence, while maintaining a comparatively far distance from society as a whole. This attitude will certainly create problems in situations requiring more than a mere acceptance of the law of the land, for example, in cases of obtaining citizenship or administrative functions. In these cases, it is a necessary requirement to actively support the core rules of secular democratic states granting human rights. Further, it would be problematic to educate future generations in structural distance, that is, the conviction that, while the law of the land has to be accepted as a matter of fact, it should be replaced by a non-secular order in the future.

The Religious Position of Civic Entrenchment and Its Historical Burden

The fifth approach is based on the idea of substantial integration into European societies and involves fully accepting and contributing to the state’s leading

63 Compare P. Dressendörfer. Islam unter der Inquisition: Die Morisco-Prozesse in Toledo 1575–1610. Wiesbaden: Akademie der. Wissenschaften und der Literatur, 1971.

64 See S. Ibn Baz and S. Uthaymeen. Muslim minorities—fatawa regarding muslims living as minorities. Hounslow, 1998, 71. The Fiqh Council of the Muslim World League on its 16th session in Mecca, reported in A message from Muslim scholars to Muslim minorities in the west. Daawah 4, 1422 A.H., February 2002, 8, 11.

65 Kettani, M.A. Muslim Minorities in the World Today. London: Mansell for Institute of Muslim Minority Affairs 1986, 18; also see S.Z. Abedin. Muslim minority communities in the world today, in Islamochristiana 16, 1990, 1.


principles and laws while preserving Muslim identity within the framework of the far-reaching freedom of religion.

For instance, the Bosnian Muslim lawyer, Enes Karić, who teaches at the Islamic Faculty in Sarajevo, explicitly states that the caliphate is not a part of the religion of Islam.66 Instead, his approach to state legislation and administration is solely to look at their content. His starting point is that sharī’a is a set of rules with moral goals. According to his understanding, “a state which is willing to provide a sufficient social structure, for example, funds for students or pensions, which intends to establish economic and social justice, which respects and promotes human rights, is an Islamic state in this sense” (according to the proverb he cites, “adl al-dawlati īmānuhā, zulm al-dawlati kufruhā” justice is the belief of a state, injustice is its unbelief). Finally, he describes the European secular democratic state under the rule of law as fulfilling these demands and concludes: “Therefore, we don’t need a double system.”67 He perceives the concept of citizenship to be a major European achievement. Mustafa Ef. Klanco, the Bosnian chief imam of Germany, argued that the sooner Muslims in Europe are ready to leave diaspora-thinking behind them, the faster the necessary state of integration will be achieved. At the same time, he blames the installation of imams being sent to the country ill-prepared for major deficiencies in this respect. On a more theoretical level, an unknown Muslim participant68 in a public discussion in Vienna on the secular state’s need for religion pointed out that it is a requirement for Muslims to adopt the state’s public order, namely the concepts of tolerance, acceptance of the law, willingness to contribute and bear responsibility, and solidarity. He demanded that Muslims internalize and “theologise” these indispensable values.69 This approach would value the principles of the democratic secular state, granting human rights from a religious point of view rather than substantiating the system with religious norms. Further, the French Imam, Tareq Oubrou, has stated that a concept of sharī’a should be developed, which replaces the legal mechanisms of sharī’a by those of the ruling French law.70 Concerning fatwa given in Europe, Oubrou demands that the mufti keep in mind that the application of the fatwa has to fit into the ruling legal framework. Therefore, the mufti has to know this framework and its interpretation. Positions of this kind would enable Muslims to actively participate in society.

66 Compare also E. Karić. Islamic Thought in Bosnia-Herzegovina in the 20th Century. Sarajevo: El-Kalem, 2011.

67 Lecture held during a conference in Sarajevo organized by the German Friedrich Ebert-Stiftung on November 19, 2007.

68 He is teaching at the Vienna academy for the education of teachers in Islamic instruction.

69 Report by Prof. Andreas Khol, the former president of the Austrian national Assembly. In gottes namen. Die Presse, November 17, 2007, 37.

70 Oubrou, Islam de France 2, 1998, 206, 210.


Thus, more and more Muslim thinkers are seeking new approaches to defining Islamic life as a part of the given legal and societal conditions of life in Europe. They reject the former division between dār al-Islām and dār al-Îarb, arguing that today earth is simply “one house” for mankind as a whole, and that every Muslim is entitled to live in any part of the world and is responsible for the sake of the society he is living in. They stress that there is no support for the classical bipolar view mentioned above, neither in the Qur’an nor in the Sunna, and that it is no more than an invention of the classical lawyers.71 Instead, intense international cooperation and common legal rules and values are creating completely different conditions that do not allow a concept of general hostility to be maintained, as developed in the past in European and in the Islamic worlds alike. Today, the entire world constitutes one single camp (“dār wāhida”), one all-embracing “dār al-’ahd”72 as mentioned and defined above.

At the same time, the above-mentioned French Imam, Tareq Oubrou, has presented an “Introduction théorétique à la charî’a de minorité”73 in which he proposes the removal of mere cultural “foreign influences” associated with Islam which hinder integration in France. His approach is strongly supported by Muslim women organizations and intellectuals who are, for example, searching for a renewed Islamic understanding of equality of sexes. These critics of the widespread phenomena of the oppression of girls and women74 cautiously distinguish between religious commands and cultural phenomena which influence daily life sometimes

71 For example, R. Zakaria. Is Islam Secular? Aligarh: Aligarh Muslim University, 1989, 54; Oubrou, Die “Minderheits-Scharia” in Frankreich: Reflexionen zu einer rechtlichen Integration des Islam, in: Escudier u.a. (Hrsg.), Der Islam in Europa. Der Umgang mit dem Islam in Frankreich und Deutschland, Göttingen, 2003, 193, 197; Graz Declaration of a conference of leaders of Islamic centers and Imams in Europe in Graz/Austria, June 13–15, 2003: “The medieval distinction between opposite ‘dar al-Islam’ and ‘dar al-harb’ has to be objected. It is based neither in the Qur’an nor in the Sunna, and has no relevance whatsoever nowadays, being a historical phenomenon which is outdated since a very long time” (translated from the German version by the author). The declaration is published on the homepage of the Central Council of Muslims in Germany. Available at: http://www.islam.de/?site=articles&archive=euro-islam&article_number=1651 (accessed March 15, 2012).

72 On the ISESCO-conference in Frankfurt am Main/Germany on September 29–30, 2003 on “Dialogue among Civilizations: Diversity within complementarity” the Muslim participants from all over the Islamic world and Europe unanimously agreed on this concept.

73 Oubrou, Islam de France 2, 1998, 27.74 Compare Z. Badawi. Muslim Justice in a Secular State, in God’s Law versus State

Law, edited by King. London, 1995, 73, 75, 79; S. Sheriff. Forced marriage. Muslim News, 29(172), August 2003, 11; Huda May/June 2001, 28; M. Abdul-Rauf. Women and the Family. 3rd Edition. Alexandria, 1995, 120; T. Mahmood. Uniform Civil Code, Fictions and Facts. Delhi, 1995, 76; S. Çileli. Wir sind Eure Töchter, nicht Eure Ehre. Michelstadt, 1999; AG Korbach FPR 2003, 335.


much more than the former.75 This new approach opens a broad space for the harmonization of the European legal framework with Islamic life in Europe. Such harmonization may be achieved by searching for common ground between secular and religious norms.

A large number of Muslims do not share the restrictive traditionalist view and would support a more integrative approach, which is to define Europe to be the “home” of European Muslims. Muslim thinkers like Fathi Osman stress that “permanently living in a country, and in many cases acquiring its citizenship, implies a commitment to observing its laws and caring for its interest and that fulfilling this commitment is a moral and legal obligation in Islam.”76 A prominent French Muslim, who acted as an Imam in the city of Marseille, and enjoys a high reputation among liberal Muslims in France and Europe as a whole (while others heavily criticize him) said:

The presence of Islam in France gives Muslims the unexpected opportunity for experiments and to develop the theology of a minority among other minorities. This opportunity is not only due to the fact that France has a cosmopolitan society containing a strong Muslim community. It is mainly based on France being a laicist state and realizing this laicism by the neutrality of its official authority towards religious issues whatsoever. This lack of state intervention, in combination with the lack of social pressure, which is known in Muslim societies, permits the creation of reformist and liberal tendencies for the sake of Islam. This theology of minorities is not only interesting and beneficial for the Muslims in France, by ensuring their peaceful and brotherly co-existence with the other communities. A great interest also consists in the fact that it is transferable to the Islamic world itself. If Islam does not wish to be excluded from the new international order to be seen on the horizon, it has to prepare itself to the Universal, also internally, and has to accept that it represents a minority among others in a global perspective, a contributing partner and not an aggressive enemy. Nowadays human rights, the freedom of belief and conscience and laicism are the most consented to principles and are solely in the position to conduct the human society, which is so pluralistic. These principles are free of an ideology, which would contradict the ruling ideologies or would contravene one of them. They do not demand to respect one single ideology or confession;

75 Compare G. Karmi. Women, Islam and patriarchalism, in Feminism and Islam, edited by M. Yamani. New York City: New York University Press, 1996, 69; A. Engineer. The Rights of Women in Islam. 2nd Edition. New York: St. Martin’s Press, 1996, 11; A. Barlas. Believing Women in Islam: Unreading Patriarchal Interpretations of the Qur’an. Austin: University of Texas Press, 2002, 184; Osman. The Children of Adam. An Islamic Perspective on Pluralism. Washington D.C., 1996, 20.

76 Osman. Islam and human rights, in Rethinking Islam and Modernity—Essays in Honour of Fathi Osman, edited by El-Affendi. London: Markfield, 2001, 27, 33; Osman quotes Qu’ran surahs 5, 1; 16, 91–6; 17, 34 to support his opinion.


they demand to respect other human beings, all of them, whatsoever might be their convictions or belief. This is the “ma’rūf” of our days. These ethics, well known and recognized in mankind as a whole, will have to lead the initiatives of every interpreter willing to fill the Holy Qur’an with life here and now.77

This position will enable Muslims in Europe not only to accept the ruling ideas and laws concerning democracy, the rule of law and the protection of human rights, including the equality of sexes and religions in a sense of “tolerating” them, while maintaining the self-definition to be a permanent minority alien to the majority society, but to actively participate in developing the society of which they are a part.

Conclusion

Two or three decades ago, these issues would have been mere fiction. In most of the European societies, except some regions on the Balkans, there were few Muslims living there permanently or for a long time. In others, like France and the UK, relations concerning Muslims living on the mainland were more or less maintained from colonial times. Hardly anyone cared about a “Muslim identity in Europe.” After realizing that there will be a stable Muslim presence in Europe, the question of such a Muslim identity arose among many Muslims here. Some of them formulated a defense of Muslim existence in Europe against demands to refrain from living there. Others pled for a more intense self-engagement with the existing political parties, NGOs or other initiatives, and refused the idea of creating specific Muslim organizations and considered the formulation of a theological framework for Muslims in Europe to be useless78 or even harmful. According to them, it would submit the system of the secular democratic state under religious supervision.79 Some of them focus on practical problems concerning daily life, while others try to create a theoretical, theologically well-founded framework for Muslim life and self-definition in a mainly non-Muslim environment. Until now, these initiatives were rare, but they are increasing in number and intensity. This might be due to the fact that Muslims now are convinced to stay in Europe permanently, and to the increasing number of well-educated Muslims dealing with these issues. Thus sharī’a in Europe would mean to define sharī’a rules for Muslims in Europe in accordance with the indispensable values of democracy,

77 S. Bencheikh. Marianne et le Prophète—L’Islam Dans la France Laïque. Paris: Bernard Grasset 1998, 88 (translation from French by the author).

78 Statement of Dr. Hasni Abidi, Director of the Centre for Studies and Research in the Arab World and the Mediterranean, Geneva, at the ISESCO-conference in Frankfurt on September 29–30, 2003.

79 In this sense Ghaleb Bencheikh at a conference in Berlin on February 9, 2007 by the Konrad-Adenauer-Stiftung, the Heinrich-Böll-Stiftung und der Bundeszentrale für Politische Bildung on the issue of “Muslime als Staatsbürger” (Muslims as citizens).


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.

Furthermore, all Europeans should remember that freedom of religion, and therefore religious pluralism, is an integral part of liberal European constitutions, and that everyone who is willing to respect the law of the land should enjoy this freedom. The adversaries of these kinds of constitutional orders are found among Muslim extremist groups and individuals, as well as among right or left-wing radicals, extremist feminists, Christian fundamentalists and simple racists (who are sometimes unified in strange alliances80). Nevertheless, there is sound reason for an optimistic view, given the fact that there are stable majorities in Western societies among Muslims and non-Muslims interested in a peaceful co-existence and accepting individual perspectives of how to live within the balanced legal orders of necessary unity and far reaching diversity under the common basic rules, rights and duties.81

80 Compare Rohe, M. Alice Schwarzers Kanal—Desinformation fuer Fortgeschrittene. (Online). Available at: http://www.zr2.jura.uni-erlangen.de/aktuelles/kanal.shtml (accessed March 15, 2012).

81 Compare 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.” Valoriser l’héritage culturel commun!, Le Figaro April 4, 2002, 14.

Chapter 4

Muslims in BelgiumRik Torfs

Historical Presence of Muslims in Belgium

The presence of Muslims in Belgium is not a recent phenomenon and is not exclusively linked with recent immigration from the Maghreb countries or from Turkey. But historically the Muslim presence in Belgium has been very limited. In a statistical report from 1928, the Turkish consul in Antwerp wrote that out of a total Belgian population of 7,874,601, there were 5,751 Muslims, half of whom came from Algeria. Statistically, this Muslim presence is extremely moderate.

The presence of Muslims in Belgium, as well as the visibility of Islam, increased significantly from the 1960s onward, during which time Belgium signed immigration conventions with Morocco and Turkey (1964), Tunisia (1969), and Algeria and Yugoslavia (1970). These agreements had two objectives. The first was to fill the need for unskilled labor in a quickly expanding industry. The second, which was clearly less important, was to increase the population in order to maintain the overall level of consumption. Additionally, Belgium fostered family reunification. Starting in 1974, and as a consequence of the energy crisis, official immigration of non-European laborers was discontinued. Yet, the issue of integrating Muslim minorities into Belgian society remains a delicate and highly important issue, even today.

There are no precise statistics on Muslims in Belgium. Moreover, collecting such information would be illegal, as the principle of negative religious freedom prohibits the state from asking questions concerning the religious adherence of its citizens. However, the number of Muslims in Belgium is estimated at 320,000 to 450,000 people, out of a total of 10.5 million inhabitants. Muslims are thus around 4 percent of the population. This means that Islam is the second largest religion after Catholicism, and is far ahead of Protestantism, whose members comprise less than 1 percent of the population.

Approximately 230,000 of Belgium’s Muslims come from Maghreb countries, especially Morocco, and 112,000 come from Turkey. Only 30,000 Muslims are converts of Belgian or European origin. It is also interesting that 75 percent of Muslims with a Maghreb or Turkish background live in Brussels. Islam in Belgium is thus an urban phenomenon.


The Institutional Framework of Religious Groups in Belgium

The Belgian constitution of 1931, still in effect today, contains four articles concerning religious freedom and church and state relationships. Article 19 proclaims positive religious freedom, whereas article 20 formulates its negative counterpart. Article 21 describes the internal autonomy of religious groups, and outlines a few exceptions. A very well-known exception is the criminally-sanctioned principle that all religious marriage ceremonies must be preceded by a civil marriage.

Yet the stipulation of utmost importance in the context being dealt with here is Article 181 of the Constitution, which says that the state budget should provide salaries and pensions for ministers of religion. Belgian law recognizes theoretical equality among all religions, but Article 181 affects this equality. Religions may obtain official recognition through, or by virtue of, law. Currently, six denominations enjoy this status: Catholicism, Protestantism, Judaism, Anglicanism, Islam, and the Greek and Russian Orthodox Churches. The Law of March 4, 1870, concerning the organization of the temporal needs of religions,1 confirmed the recognition of Catholicism, Protestantism, Judaism, and Anglicanism; the Law of July 19, 1974, which amended the Law of March 4, 1870, recognized Islam; and the Law of April 17, 1985, which also amended the Law of March 4, 1870, recognized the Greek and Russian Orthodox Churches. A constitutional amendment of June 5, 19932 provided for financing of groups of non-believing humanists3 as well.4

Legal personality is attributed to the ecclesiastical administrations responsible for the temporal needs of churches.5 Churches and church structures themselves do not enjoy legal personality. Apart from the modest salaries provided in the state budget

1 This law is not the only source of recognition of religions. The recognition of Catholicism is a direct result of the Concordat of 1801, confirmed by the law of 18th Germinal X (April 8, 1802). Protestantism also obtained recognition as a result of the law of 18th Germinal X, whereas Judaism found its recognition through the decrees of March 17, 1808. Finally, Anglicanism obtained recognition through the decrees of April 18 and 24, 1835. All this was confirmed by the law of March 4, 1870.

2 For an overview of the evolution of the Constitution, see J.P. Martin. La Belgique: de l’affrontement laïques-confessionnels au pluralisme institutionnel, in Religions et laïcité dans l’Europe des Douze, edited by J. Bauberot. Paris, Syros, 1994, 29–39.

3 Their representative bodies are the Centrale Vrijzinnige Raad/Conseil Central Laïque.

4 For an overview of all financial consequences for humanist groups’ recognition, see P. De Pooter. De Rechtspositie Van Erkende Erediensten en Levensbeschouwingen in Staat en Maatschappij. Brussels: Larcier, 2003.

5 The legal basis for these “kerkfabrieken” “fabriques d’églises” was for a long time constituted by the Imperial Decree of December 20, 1809 and by the Laws of March 4, 1870, Moniteur belge, and March 8, 1870. Following the regionalization of the topic, a new Flemish decree is expected soon. For possible evolutions, see F. Amez. Un aspect oublié de la réforme de l’État: le régime des cultes. Journal des Tribunaux, 2002, 509–37.

Muslims in Belgium 73

for ministers of religion of a government-approved parish or bishopric6 (as dictated by Article 181 of the Constitution), recognition also entails other benefits for the religions concerned. For example, deficits incurred by ecclesiastical administrations for temporal goods must be paid by the municipalities, though this does not always encourage proper responsibility on the part of ecclesiastical administrations.7

Another advantage of recognition is that recognized churches may request state subsidies for the construction or renovation of their buildings.8 Pastors and bishops must be given appropriate9 housing, and any expenditure for this purpose is chargeable to municipalities or provinces. Furthermore, recognized religions get free public radio and television broadcasting time.10 Finally, religions may appoint army and prison chaplains, whose salaries are carried on the state budget.11

Of the six recognized religions, Roman Catholicism is the most important, as figures indisputably show. This has not resulted in the Roman Catholic Church having a privileged position de jure, although that is not entirely true de facto. First of all, one cannot escape the conclusion that the legal status of religion under Belgian law finds its source of inspiration in the structure and function of the Roman Catholic Church.

In addition, the Roman Catholic Church plays a bigger role than other religions in public expressions of faith. This is seen, for example, on Belgium’s National Day when the Belgian military plays a central role during the playing of Te Deum, an early Christian hymn of praise regularly used by the Catholic Church.12 The Catholic Church also played a prominent role at the funeral of King Baudouin on August 7, 1993.

6 Around 1,000 euro a month for a Catholic pastor.7 In Wallonia, a southern region of Belgium, the municipalities spend 1.2% of their

average expenses on religion, compare R. Collinet, edited. À propos des fabriques d’églises, des secours communaux et de quelques subsides, in Le Semeur sortit pour semer. Grand Séminaire de Liège 1592–1992, Liège: Dricot, 1992, 407.

8 Relevant legal sources are: art. 92, 3° of the Imperial Decree of December 30, 1809; the Law of March 4, 1870 (Moniteur belge, March 9, 1870) and the Law of August 7, 1931 (Moniteur belge, September 5, 1931), as well as the Royal Decrees of July 2, 1949 and July 1, 1952.

9 “Appropriate,” in this context, means in accordance with the pastor’s or bishop’s social status. See for example, Council of State. April 2, 1953. Rechtskundig Weekblad, 1952–53, 1691.

10 See E. Henau. God Op De Buis. Over Religieuze Uitzendingen In De Openbare Omroep. Louvain: Davidsfonds, 1993.

11 Pandectes belges, Aumônerie, Aumôniers, 1–16.12 According to Cass., June 18, 1923, Pasicrisie, 1923, I, 375 this was not contrary to

Article 15 of the Constitution, and the negative religious freedom expressed by this article. However, recently, the Te Deum lost ground. Although it remains present in its old form on July 21 (National Day), it is no longer part of the official program on November 15 (Feast of the King).


In summary, there are six recognized religions, among which Catholicism is primus inter pares (the first among equals). In addition to the six recognized religions, there is a range of unrecognized ones. In terms of numbers, the Jehovah’s Witnesses lead with around 20,000 members, followed by the Mormons, who have around 3,000 believers. Numerous other groups have memberships approaching or well into the hundreds.

These movements do not have an enviable legal status. Not only do they not enjoy the advantages that recognized religions claim, but they are sometimes not even regarded as religions. Belgium has no legal definition of the term “religion”; therefore, decisions regarding what constitutes a religion are left to the courts of law. In view of freedom of religion and the relationship between church and state as they exist in Belgium, when a judge determines whether a movement is a religion, he normally may not rely on arguments concerning the movement’s content.13 For example, if a judge is looking at criminal law or tax exemption files to establish whether a movement is a religion,14 he must decipher whether the movement looks as though it is serious and in all reasonableness may be called a “religion.”15 When doing so he should base his judgment on external aspects, such as the existence of temples, prayer texts, or ritual acts. Sometimes, however, even this does not yield sufficient clarity and a certain amount of analysis of what is contained within the movement is still necessary. Jurisprudence takes the view that for a society to be regarded as a religion, it needs to include the worship of a deity.16

Non-recognized religions or religious groups are more likely to clash with concepts of public order and good practices within the state order. Up until the abolition of compulsory military service, the problems Jehovah’s Witnesses encountered were very well known. They refused not only military service but also its alternative, civic service. On the basis of Article 46 of the military penal statute book, one who refuses service is deemed a deserter, which generally results in a two-year prison sentence.17

13 See G. Van Haegendoren. Sekte of kerk: de niet-erkende erediensten in België. Tijdschrift voor Bestuurswetenschappen en Publiek Recht, 1986, 390.

14 See, for example, the example of Stévinisme, Court of Appeal Gent, January 14, 1885, Pasicrisie, 1885, II, 121; of Salvation Army, Corr. Tribunal of Gent, December 4, 1890, Pasicrisie, 1891, III, 117 and Corr. Tribunal of Brussels, February 6, 1891, Journal des Tribunaux, 1891, 204; of Baha’i, Court of Appeal of Brussels, October 12, 1960, quoted by Commentaar W.I.B., 157/28; and of Jehovah’s Witnesses, Court of Appeal of Brussels, January 24, 1962, quoted by Commentaar W.I.B., 157/29.

15 See the jurisprudence quoted by P. Mahillon and S. Fredericq. Het regime van de minoritaire erediensten. Rechtskundig Weekblad, 1961, 62, 2376.

16 Compare Court of Appeal of Liège, November 21, 1949, Pasicrisie, 1950, II, 57. Antoinism is a cult limited to its members themselves. Consequently it was considered by the authorities to be an “oeuvre philantropique,” without the quality of a religion.

17 Compare R. Torfs. L’objection de conscience en Belgique, in European Consortium for Church-State Research, edited by Milan, Giuffrè, Conscientious Objection in the E.C. Countries, 1992, 217.


In sum, we may differentiate between three categories of religion in Belgium:

• The Catholic Church• The five other legally recognized religions, which in practice includes

minor religions as well as non-believing humanists• The unrecognized movements, whether or not they fulfill the requirements

of the law to qualify as a religion

As demonstrated, it can be very important for religious groups to obtain recognition. Recognition truly offers many advantages, thus creating a form of inequality between recognized and unrecognized religious groups. Inequality is a problem, especially since many consider equality an integral part of religious freedom. Consequently, the state, in according recognition to some and denying it to others, employs strict criteria to achieve the highest possible degree of equality. Although Belgian legislation contains no formal criteria leading to recognition, the Ministry of Justice, responding to parliamentary questions, gave five requirements that religions should fulfill to achieve recognition:

• The religious group should have a large number of members (several thousand).

• The religious group should be structured, meaning it needs a representative body serving as an interlocutor to civil authorities on behalf of the entire group.

• The religious group should be present in Belgium for a reasonably long period of time, which in practice means for several decades.

• The religious group should represent an interest for society.• The religious group should refrain from any activity contrary to public

order.

Some of the criteria are not very clear, while others could be seen as at odds with true religious freedom. Still, having at least some criteria is preferable to being entirely dependent on discretionary governmental decisions.

Islam’s problems were supposedly solved by its official 1974 recognition. But in reality the situation is much more complex. Although Islam has achieved recognition, it has not yet received all the positive consequences as described above. One of the main reasons for this incomplete recognition is Belgian secular authorities’ difficulty identifying a representative Islamic body to operate as an interlocutor to the government.

In Search of a Representative Body

Recognizing a religious group is one thing; finding a credible representative body to operate as an interlocutor with the state is another. Of course, for Catholicism—


the implicit model for all religious groups in Belgium—this has always been an easy issue. The Roman Catholic Church is hierarchically constituted, with the pope being the head of the Church worldwide and bishops governing particular congregations locally. Belgian bishops are the Catholic interlocutors to the Belgian state because the Church’s internal structure is limpid. Other religious groups sometimes have difficulties identifying a representative body. This is particularly true for the Protestants who created a representative body somewhat artificially; with the body having just one purpose: serving as an interlocutor to the state so that Protestants themselves could fully enjoy all the advantages of legal recognition described in the Constitution.

For its part, Islam has walked a long and winding road to incomplete recognition. On May 3, 1987, a royal decree with regard to the recognition of local Islamic committees was issued. The idea was to organize elections that would lead to forming these committees. But the royal decree has never been applied, as it quickly became clear that elections within religious groups are complex.

Between 1978 and 1991, the Islamic Cultural Center (ICC) was the only interlocutor to the Belgian state, even though the Muslim community rejected the ICC. In 1990, 16 years after Islam’s ostensible recognition, a royal decree established a provisional “conseil des sages” (Council of the Wise). This council was tasked to administer the affairs of teachers of Islam at public schools. But the Muslim community did not accept the composition of this council, which included a large number of lay members.

In 1993, after much hesitation, the names of the members of a provisional executive body directed by Dr. Didier-Yacine Beyens were published, and in 1994 the Minister of Justice recognized the body as the state’s interlocutor with Islam. Consequently, the president of the temporary executive body proposed to the minister a procedure for Belgium’s Muslims to elect members to a permanent Islamic interlocutory body. The Belgian government approved this procedure on June 12, 1998. In July 1998 a control commission under the presidency of a member of the Cour d’Arbitrage (Court of Arbitration) was established. This commission was to prepare for the elections and validate electoral results.

Elections for the permanent interlocutory body took place on December 13, 1998. Muslims voted at 124 different locations, including 104 mosques and twenty public sites. All together, 48,000 Muslims voted. The results were validated on January 6, 1999.

The elected interlocutory body, called the General Assembly of Muslims, comprised 51 members. In addition to these 51 elected members, the temporary executive body selected ten more, and those 61 total members chose seven additional members. The General Assembly thus comprised 68 members, 51 of them being directly elected. The purpose of adding unelected members to the General Assembly was to control for irregularities in the elections, guarantee appropriate representation of minorities in the Assembly, and ensure continuity with the previous activities of the temporary executive body.


The General Assembly had the duty to appoint members of a small 17-member executive body to head the Assembly. This executive body, called the Executif des Musulmans de Belgique, or EMB, was to include seven Moroccans, four Turks, three native Belgians, and three members of other citizenships. The appointment of EMB members was strictly controlled by legal stipulations; moreover, candidates were required to have a secondary school degree. Even more controversially, the Minister of Justice, on the advice of the State Security Service, had to approve the General Assembly’s recommended EMB candidates. Clearly, the underlying rationale was eliminating radical or potentially dangerous candidates.

The Minister of Justice exercised this power to refuse a considerable number of candidates. Finally, on February 25, 1999, a list was issued to the press containing 16 names (instead of the original 17) constituting the new EMB. The EMB was presided over by a Belgian citizen of Moroccan origin, Mr. Nouredine Maloujahmoun.

Rejected candidates immediately challenged the composition of the EMB, which led to severe tension and gridlocked the EMB’s functioning. In response, the federal government appointed two negotiators, Senators Meryem Kaçar (Flemish Green Party) and Philippe Moureaux (French-speaking Socialist). Their intervention yielded the so-called “Plan Moureaux,” which recommended replacing half of the EMB’s 14 then-remaining members. On April 25, 2003, the government recognized a newly-constituted EMB presided over by Mr. Mohamed Boulif. The state’s recognition of the new EMB ended on May 31, 2004, but many incidents occurred long before this. A chronological overview of these incidents and later problems illustrates the EMB’s confusion and haphazard functioning:

• July 26, 2001. An EMB member and a Moroccan public advocate are accused of fraud with regard to regularizing undocumented residents in Belgium.

• August 8, 2002. Newspapers report on various incidents within the EMB. It becomes public that Nouredine Maloujahmoun’s presidency was terminated on April 15, 2002, and that he had been replaced by a collective leadership of four people. Yet, a May 21, 2002 decision by the Court of First Instance of Brussels, re-established Mr. Maloujahmoun’s presidency.

• November 29, 2002. As a result of Plan Moureaux, eight members of the EMB are asked to resign. Adhering to Plan Moureaux, the government opts to undertake individual talks with each of the eight members asking them to resign voluntarily.

• April 25, 2003. The government assembles a new EMB presided over by Mohamed Boulif. The new EMB expects that very soon, mosques, imams, and Muslim teachers will receive state subsidies, as required by Article 181 of the Constitution and other relevant legislation. The Belgian political opposition is not satisfied with this development, as the State Security Service had reported that some members of the new EMB potentially espoused fundamentalist ideas.


• November 14, 2003. It is revealed that the Minister of Justice Laurette Onkelinx (French-speaking Socialist) appointed on July 25, 2003, eight EMB members opposed to any form of Muslim integration into Belgian society. The appointments occurred notwithstanding a negative report from the State Security Service.

• March 25, 2004. Because the dysfunctional EMB has not yet proposed any mosques for government recognition, Islamic places of worship have yet to receive public subsidies. Meryem Kaçar (Flemish Green Party) proposes that Minister of Justice Onkelinx fundamentally transform the EMB.

• May 24, 2004. The EMB fails to justify its 2002 financial transactions. Therefore, the government follows the Court des Comptes’ advice and cuts the EMB’s annual subsidies.

• June 25, 2004. Newspapers run an article titled “Last Chance for the EMB.” New elections are projected for December 2004. The elections are guaranteed to yield the presence of women and Flemish Muslims in the EMB.

• September 16, 2004. Former EMB President Mohamed Boulif is suspected of money laundering with EMB funds. Boulif protests, complaining that during his tenure the EMB was subject to pressure and a low budget.

• November 8, 2004. Senator Mimount Bousakla (Flemish Socialist) demands the EMB’s dissolution for various reasons, including the absence of women and Flemish Muslims in the EMB, the body’s failure to react to the murder of Theo van Gogh in the Netherlands, and the combination of a lack of concrete results from their efforts and financial scandals, which have discredited the EMB.18

• November 9, 2004. Meryem Kaçar (Flemish Green Party) announces that she favors creating a new EMB without elections, asserting that elections are not the best way to compose a moderate and widely accepted EMB. Moreover, Kaçar posits that the EMB should be divided in two chambers, one Dutch-speaking and the other French-speaking.

• November 12, 2004. Flemish Minister of Integration Marino Keulen (Liberal Party) airs his support for Kaçar’s plan.

• February 1, 2005. One hundred eighty-four people stand as candidates for the General Assembly of Muslims, the organization responsible for electing the EMB. In comparison, 260 candidates took part in the 1998 elections. Electors may register until February 13.

• March 19, 2005. General Assembly elections take place, and 69,500 Muslims register to vote. EMB President Mohamed Boulif resigns in the

18 It is striking that Bousakla attributes moral authority to the EMB, whereas the latter was constituted as a representative body and interlocutor to the Government, with only (extended) practical and technical responsibilities. In any case, Bousakla touches upon a deeper problem: is it practically possible to deal with merely technical matters without exercising any moral authority?


lead up to the General Assembly elections amidst considerable commotion. The pre-election EMB refuses to recognize the result of the General Assembly elections.

• March 24, 2005. Turkish candidates obtain 40 of the 68 General Assembly seats, with 45,000 votes cast. Turks are overrepresented in the Assembly because many Moroccans boycotted the elections, and the Turks campaigned more effectively.

• March 29, 2005. A number of Belgian politicians, particularly those with a Moroccan background, propose new elections, but the proposal is rejected.

• June 21, 2005. The transition to the new EMB is very chaotic. Kebir Bencheikh, a member of the outgoing EMB, physically attacks new EMB President Brahim Bouhna.

• June 29, 2005. Minister of Justice Laurette Onkelinx confirms that the previous EMB committed fraud: former EMB President Mohamed Boulif paid himself a yearly salary from EMB coffers, though he was authorized only to spend 15,000 euros, and even then only for representational purposes.

• October 2, 2005. The new EMB is constituted with 17 members with Coskun Beyazgül as president, Hacer Düzgün as vice-president of the Dutch-speaking chamber and Kissi Benjelloul as vice-president of the French-speaking chamber. State Security Service reports again eliminated several potential members. President Beyazgül confirms that the list of rejected EMB members will be kept secret. The new EMB comprises eight Turks, six Moroccans, two Pakistanis, and one Albanian. Because Moroccans are by far Belgium’s largest Muslim community and yet only hold six EMB seats, the EMB’s representative character could be challenged.

• June 16, 2006. The EMB undertakes concrete action, working on a document concerning the future education of imams. The document examines the problem that imams educated in Belgium do not receive a uniform education or government-controlled training. The EMB proposes three potential remedial options: a) erecting an independent faculty of Muslim theology; b) arranging a partnership between Muslim institutions and Belgian universities; c) integrating Islamic education into existing university curriculum.

• August 31, 2006. The Université Catholique de Louvain (UCL) announces that, beginning in the 2006–2007 academic year, it will organize the first training for imams in Belgium.

• October 24, 2006. The EMB asks for broadcasting time on public radio and television, a right that all recognized religious groups enjoy. The next day Flemish public radio and television (VRT) announces that broadcasting time can only be granted from 2010 onwards because the procedure of recognition for broadcasting time can only start once every five years. The next period begins in August 2009.

• December 12, 2006. Police issue a new search warrant for the home of


former EMB President Mohamed Boulif, and his brother-in-law. Computers and documents are seized, which contain information raising questions about 33,000 euros spent by the EMB.

• December 13, 2006. Reports indicate that the EMB financially supported Nizar Trabelsi, a Muslim convicted for terrorism. Although the amount of support is only 100 euros, an inquiry is nevertheless opened.

• December 20, 2006. Kissi Benjelloul, the French-speaking vice-president of the EMB, is accused of fraud and arrested.

• December 21, 2006. An investigation reveals that Mr. Benjelloul, a butcher, used EMB money to buy a refrigerator van for personal use.

• January 6, 2007. New accusations with regard to the financial practices of the EMB emerge. Restaurant invoices totaling 10,700 euros are at the heart of the debate.

• January 17, 2007. Former EMB President Mohamed Boulif is arrested for money laundering.

• February 21, 2007. Fifty-one students are involved in the new imam-training at UCL.

• May 2, 2007. Accusations of nepotism arise with regard to the appointment of Muslim chaplains in prisons.

• June 16, 2007. Wallonia, the southern region of Belgium, recognizes 43 mosques in the region. It is the first official recognition of mosques since Islam’s ostensible legal recognition in 1974.

• September 4, 2007. Authorities seal the EMB’s premises after discovering false invoices there.

• September 5, 2007. The EMB suspends its French Vice-President Kissi Benjelloul, who admits while residing abroad to certain crimes of which he has been accused. The same day, a temporary administrator is appointed as acting director of the EMB because of the body’s corruption problems.

• September 6, 2007. Tensions rise between French and Dutch-speaking EMB members of the EMB. Some members propose an autonomous Flemish EMB chamber.

• September 12, 2007. Islamic associations urgently call for the EMB’s collective resignation.

• September 27, 2007. Former EMB Vice-President Kissi Benjelloul is arrested on various charges.

• October 29, 2007. The General Assembly removes from office ten out of 17 EMB members. Among the seven members allowed to stay is President Coskun Beyazgül.

• October 30, 2007. The new non-profit association established by the EMB is accused of fraud.

• December 22, 2007. Six mosques in Flanders are recognized. It is the first time since the recognition of Islam in 1974 that mosques are recognized in the Flanders region.

• February 1, 2008. The new Minister of Justice, Jo Vandeurzen, suspends


the new EMB’s subsidies after a financial deficit of 220,000 euros is discovered. Vandeurzen challenges the representative character of the EMB.

• February 9, 2008. President Beyazgül suggests the reformation of the EMB. He proposes a system with representatives of various Islamic federations. Such a system resembles the French one and would lead to the election of representatives of Islamic federations.

• February 21, 2008. A Muslim resident of the city of Ghent, together with the organization Divers & Actief, sues the EMB for mismanagement.

• February 23, 2008. The Muslim community does not establish a new EMB, and the EMB remaining after the October 29, 2007 purge request to cease their activities. Minister of Justice Jo Vandeurzen comments: “This structure no longer works.”

• March 15, 2008. The General Assembly nominates 17 new members, including a new president, Mr. Semsettin Ugurlu. This attempt first fails.

• May 9, 2008. A Royal Decree recognizes the 17 new members of the EMB, with Mr. Semsettin Ugurlu as president.

• June 12, 2008. Twenty-three of the 68 members of the General Assembly resign and ask its president, Mr. Nordine Taouil, to dissolve the Assembly. According to Taouil, the ineffectiveness of the EMB left the members of the Assembly “demoralized” and unable to reach consensus internally. Minister of Justice Jo Vandeurzen states that the Belgian government only has competency for the EMB and not the General Assembly.

• July 18, 2008. The EMB receives 150,000 euros in government funds to cover its operations. In 2009 the EMB would receive 426,000 euros, and in 2010, 225,000 euros. The funds are released in portions and made dependent on a number of accountability requirements.

• March 30, 2009. The recognition of the 17 members of the EMB is extended to December 31, 2009.

• December 30, 2009. The new Minister of Justice Stefaan De Clerck postulates in the Parliamentary Commission of Justice three ways forward for the EMB. First, general elections as held in 1998 and 2005. Second, a system of delegations from the local communities. Third, a mixed system that staffs the EMB partially through elections but ensures appropriate representation of the local communities. He adds that everyone in principle agrees that general elections are no longer an option. Since there is no agreement on a proposal to staff the EMB, Royal Decree extends the body’s recognition until June 30, 2010, on condition that the EMB submits by May 15, 2010 a concrete proposition on its mission, reorganization, and renewal. Possible extensions beyond June 30, 2010 will be evaluated on the basis of the proposals put forward.

• May 20, 2010. The EMB submits a proposal for a renewed structure to the Minister of Justice, who finds this a positive signal that nevertheless must be further developed. The EMB proposes to select its 17 members through


the various mosques across the country instead of from general elections. The EMB suggests changing its name from Executif des Musulmans de Belgique to “the representative organ of the Islamic region in Belgium” to reflect this change in the member selection process.

• July 16, 2010. The mandate of the EMB is extended once more to December 31, 2010, as the outgoing government cannot decide on the new structure of the EMB. However, the government finds maintaining the EMB as an institution representative of Islam in Belgium preferable to alternatives such as Islamic consultants in criminal institutions, recognized mosques, appointing imams, and Islamic teachers in public schools.

• August 18, 2010. The EMB anticipates having Muslim programs on public radio and television for the first time starting January 1, 2011, thereby realizing the broadcast rights that recognized religions enjoy. The EMB announces that it will submit an application to broadcast when the Minister of Media announces the call for bids. The EMB spokesperson states that “until now the Muslim community in Belgium has been somewhat deprived when it comes to use of media. We hope to be able to inform the public opinion better and explain Islam differently and better. There are still too many misunderstandings.”

Analysis and underlying questions

The legal position of Islam in Belgium leads to various important questions about religious liberty and issues of religion and law. The following points deserve further attention:

Islam’s story as a recognized religion in Belgium has not yet been a success. The state recognized the first mosques only recently. Imams are not yet paid by the state and their education in Belgium remains a delicate topic, although the issue of teachers and chaplains has been settled more convincingly. Altogether, the results after more than 30 years of recognition are far from convincing.

A possible excuse may be the fact that different levels of government are responsible for different aspects of religions’ recognition. Formal recognition is a federal matter, as are the payment of imams and the appointment of chaplains in prison. But nominating teachers in public schools, allowing and allotting broadcasting time on public television, and recognizing mosques are regional matters.

Even worse is the position of Islam’s interlocutory representative body to the state. The EMB took shape after a long period of delicate negotiations, yet it never truly worked, for which there are many reasons. First, EMB members’ competence was not always overwhelmingly strong, and the institution’s funds were a constant temptation for misuse by members.

Secondly, the EMB has never achieved institutional equilibrium among its members’ various nationalities. Tensions between Turks and Moroccans remained


very visible. The fact that Moroccans, who, among Muslims in Belgium, constitute a demographical majority, were weakly represented during recent years contributed to the ultimate bankruptcy of the EMB.

Thirdly, too much was probably expected of the EMB in four areas: 1) organizing Muslim education in public schools; 2) managing all social matters such as Muslim chaplains in hospitals and prisons, Islamic cemeteries, and Muslim integration into Belgian society; 3) managing all issues related to ceremonies, from subsidies for mosques to fund their control over ritual slaughter to developing labels for halal meat; 4) communicating with the media, publishing a newsletter, and spreading information about Islam. Certainly, internal religious or theological matters are not included in this impressive package of EMB responsibilities. Yet the remaining tasks are very burdensome and go beyond the competency of most EMB members.

Fourthly, elections for a religious representative body do not seem to work. Apparently the French approach using more indirect representation functions better, at least at first glance, as combining religious representation and democratic elections is challenging. In a system of recognized religions, the problem of identifying an interlocutor to the state remains very delicate.

The Roman Catholic Church enjoys an enviable position. It is hierarchically constituted and, along the lines of this hierarchy, an interlocutor to the state is identified. This is a system of indirect representation. It does not necessarily require that the faithful adhere to the policy of religious leaders in the interlocutory body. Some Catholics, for instance, may recognize that their bishops are bishops, without feeling themselves represented by them. In other words, the authorities do not check whether the bishops enjoy the support of their faithful. Perhaps, if Catholics could freely elect their interlocutor to the state, they might be inclined to choose someone else, a charismatic theologian or a missionary with nice projects in third world countries.

Religious groups without a clear hierarchical structure have to leave the determination of the interlocutor to the government itself, as with the Protestants. Their representative body has no theological power; it is only administratively relevant inasmuch as it deals with governmental contacts. The representative body is not elected but includes all important trends in Protestantism. It is based upon non-elected representation. Yet the requirements for Islam are more demanding.

Muslims share with Protestants the absence of a hierarchical structure. This means that they also have to construct a parallel representative body because it cannot be derived from religious structures. In working out this representation, secular Belgian authorities have intervened and required elections. Muslims enjoy a less favorable position than Protestants in two ways: first, they are subject to stronger state intervention and, second, their elections for the Islamic interlocutory body have been subject to a higher degree of democracy.

In sum, there is a hierarchy in autonomy. Catholics do not have to construct an interlocutory, representative body apart from their own religious structures.


Protestants are obliged to construct a separate body, yet they enjoy the latitude to organize it as they choose. Muslims enjoy none of these advantages.

Needless to say, this approach creates inequality among recognized religions, which, in the long run, will be perceived as unjust. There are various solutions to this problem. The state could uniformly require or bar elections for each recognized religion’s interlocutory body or finance projects rather than the religious group itself. In any case, Islam’s position leads us to a deeper discussion on issues such as equality among recognized religions and democracy with respect to selecting representative bodies.

Another issue, raised by Adriaan Overbeeke, a researcher at Antwerp University, lies in the consequences for religious freedom of state intervention in the representation of Muslim interlocutory bodies. In an article published in 2005, Overbeeke compares state interventions in religious elections and other issues to European Convention on Human Rights’ standards on limiting religious freedom.19 However, Overbeeke partly overlooks the difference between governmental intervention with regard to non-recognized religions and governmental intervention with regard to recognized religious groups. Groups not aiming at recognition should be left entirely free in their internal organization. But that is not necessarily the case for groups striving for or accepting recognition; it is perfectly reasonable that the government require of them something in exchange for the money and support it provides. Recognition is increasingly contractual, which suggests that non-recognized religions are more autonomous than recognized ones. The latter pay a price for their support. The nature of the price is one of the important issues for the future.

Contractual religious freedom has a role to play, not on the level of religious freedom, but on the level of religion and state relationships. Contractual religious freedom is favorable to a do ut des (reciprocity) mechanism: the state supports a religious group materially, and in exchange the religious group agrees not to exercise all aspects of religious freedom. For instance, the price for support could be the religious group’s acceptance of both the democratic state and the rule of law as a general framework within which everybody, including religious groups, operates. One could less dramatically call this a method of conditional subsidies. The state uses financial incentives to stimulate actors in society to generally accept the liberal democratic state as the overall framework of their activities.

After examining the plausibility of contractual religious freedom we turn to its content. Is it possible to contract nearly everything, or should certain matters of overwhelming importance to the notion of religious freedom be excluded from any contractual agreement? At first glance, three categories can be identified, with different conclusions attached to each of them. The first category concerns practical and financial issues. Here, contractual relationships seem to be very helpful because they do not constitute a considerable danger to the key values and elements of religious freedom. The state could ask, in exchange for

19 A. Overbeeke. Institutional Elements of Freedom of Religion—Belgium. Paper to the Twelfth Annual International Law and Religion Symposium, Provo, Utah, 2005.


remunerating imams, that they be educated by an institution set up or recognized by the state. The reasoning is that imams paid by the state should be educated by a recognized institution. Yet, in the case where imams do not hope to obtain money, no restrictions with regard to education or training can be imposed. Clearly this picture shows a link between payment and control. Moreover, the mere fact that the possibility of payment exists offers an additional possibility with regard to control. A legal system allowing financial support to religions can fine tune its strategies with regard to monitoring religious groups.

The second category deals with delicate issues of theology. Even if theological topics were of utmost importance to the state, the price that the religious group would pay to potentially compromise on those topics is also considerable, such as in the example of the ordination of woman priests. According to the theory established by the Roman Catholic Church in 1994, the fact that women cannot be ordained to the priesthood is part of the divine constitution of the Church.20 Could the state require that the Church open the priesthood to women as a condition for financial support? This would be a controversial move, given the theological importance the exclusion of women has in the eyes of the Roman Catholic Magisterium. But then again, discrimination against women is a practice which is less and less accepted by society as a whole. Although it has not yet arrived, perhaps the day will come that religious groups will be required to allow women in positions of authority to receive funding from the secular state.

The third category addresses the relationships between and among religious groups. Today, some governments already actively stimulate inter-religious dialogue because religious groups can facilitate the peaceful cohabitation of diverse religious and ethnic communities in society. Yet this dialogue is often very formal and restricted to abstract love declarations among religious groups, rather than a more active, concrete policy for dialogue. A typical example could be common action with regard to proselytizing.21 The state could require religious groups to sign a code of conduct with regard to proselytizing to qualify for state financial support.

The preceding points demonstrate that a broad range of activities could be the object of a contractual relationship between the state and religious groups. The first category including practical and financial issues is the most obvious and least delicate. Yet nothing prohibits the state from including other issues once the practice of contractual religious freedom becomes more common and gains plausibility.

20 John Paul II, Epistola Apostolica Ordinatio Sacerdotalis, May 22, 1994, Acta Apostolicae Sedis, 1994, 545–8.

21 G. Gonzalez. Nouvel éclairage européen sur le prosélytisme ou petite leçon de savoir-vivre sous l’uniforme, Revue trimestrielle des droits de l’homme, 1999, 585–93.

Chapter 5

Private International Law: When Choice of Law Principles Invoke Islamic

Rules—A French PerspectiveIsabelle Barrière Brousse

The confrontation of the laws of secular countries with religious legal systems is generally a source of difficulties. These arise mainly in the field of family relations, which are very sensitive to cultural backgrounds such as history, customs and, of course, religion, but the problems are particularly acute when it comes to Islam in Europe.

Traditional Muslim law regulates the details of family life in a spirit that has not changed for ten centuries, which creates a huge gulf between Muslim and Western lifestyles. What Islam allows, such as polygamy and unilateral repudiation in divorce, and what it prohibits, such as the establishment of natural filiation and adoption, evokes a concept of family and familial organization very different from that shared by Europeans, especially when compounded by issues of gender discrimination and inequality in worship. Whereas states like France base family relations on principles of equality and freedom, Islamic law is based instead on a very contradictory concept; male dominance transmits a profound inequality between spouses and a submission of women that is incompatible with any kind of freedom. Moreover, while the West now recognizes a plurality of family models (mainly common law families and natural families), Islamic law recognizes only the family founded on marriage. Thus the Algerian Code of the Family that defines the family as “the basic unit of society” indicates that “it consists of those people united in marriage and kinship” (Article 2).

These well-known differences have been revelatory in the so-called clash of civilizations,1 even before Samuel Huntington developed a theory of much more general application to explain international relations in the world after the Cold

1 P. Mercier. Conflits de civilisations et droit international privé, Polygamie et répudiation. Geneva, 1972; J. Deprez. Droit international privé et conflits de civilisations. Aspects méthodologiques. Les relations entre systèmes d’Europe occidentale et systèmes islamiques en matière de statut personnel , RCADI 1988 IV 19; v. also M.Cl. Najm: Principes directeurs du droit international privé et conflits de civilisations , Pref. Y. Lequette, Dalloz, 2005.


War.2 This vision, probably excessive, seems to be shared by the European Court of Human Rights, which in its Refah Partisi decision noted the incompatibility of sharī’a law with the Convention.3

The difficulties related to this confrontation are further exacerbated by the importance of the Muslim population in France, where the courts, government and notaries regularly face a possible application of rules and institutions of Islamic law. Islam has become the second religion in France, with somewhat blurry numbers ranging from four to seven million adherents according to Professor Francis Messner, but this does not mean it is also practiced with equal ardor among the Muslim population. The newspaper, Le Monde, has claimed only 20 percent of Muslims regularly attend mosque.4 Indeed, a large majority of Muslims practice their faith discreetly, without their public or private life appearing to conflict with the prevailing social mores or legal rules in France. It should also not be forgotten that among Muslim countries, there are secular states like Turkey as well as states which, though not quite reaching the point of secularity, have significantly modernized the personal status of their nationals, such as Tunisia since 1956. Moreover, when a person argues before a judge the application of a rule supposedly contrary to French religious values, it raises a strong reaction in the media and public opinion, as in the 2008 case of the annulment of a marriage for misrepresentation of the virginity of the bride.5 As a counterpoint, a decision of the court of Aix-en-Provence has acknowledged the fault of a Muslim fundamentalist husband who required his wife to wear a veil and forbade her to work or leave the house.6 In another decision, the court of Aix-en-Provence agreed to annul a marriage between Muslims on the grounds that, contrary to promises made by the husband, the religious ceremony had not been observed, which demonstrates the attention accorded to religious beliefs as long as they do not include anything shocking.7 This shows that rules of Qur’anic origin may sometimes affect internal

2 S.P. Huntington. Le choc des civilisations. Paris: Odile Jacob, 2007. Translation of the book published in 1996 under the title: “The Clash of Civilizations.”

3 ECHRFebruary 13, 2003, Refah Partisi v. Turkey GAJCEDH, 54, 528. The Court held that “it is difficult both to declare one’s respect for democracy and human rights while supporting a regime based on sharī’a, which has proven itself opposed to the values of the Convention, particularly with regard to its criminal law and criminal procedure in place provided to women in the legal system and its performance in all areas of private and public life according to religious norms”; Jael S., Charia et Convention EDH, in Une certaine idéedu droit, Mélanges offerts à A. Decoq, 2005, 355.

4 Le Monde, June 8–9, 2008.5 TGI Lille, April 1, 2008, D.2008, 1389. Compare the judge’s decision made in

Frankfurt in 2007, quoted by Prof. Mathias Rohe, which had legitimized the use of violence by the husband against his wife on the grounds that the Qur’an permits it. Such decisions, made on a highly questionable basis, further impede the political integration of states.

6 Aix-en-Provence, January 21, 1997, JCP 1997 I 4045, n.3.7 Aix-en-Provence, November 15, 2005, Dr. Famille Comm .80, 2006 .

Private International Law 89

relations (among French people of North African origin in particular), but the religious rule is not applicable as such: it is only taken into account by the judge, who understands whether the application of French law may be affected in some way by the religious norm. It is rather by foreign Muslims that the application of Islamic rules is actually invoked before French judges.

French private international law paves the way for this application because in matters of personal status and family, it retains the principle of nationality (Article 3 al.3 Civil Code). It must be recognized that this principle is widely invoked in family matters, where many exceptions can apply to laws concerning domiciles (and for divorce: Article 309, Civil Code) or habitual residences (for example in relation to food). The application of national law retains, however, a residual place that is far from negligible, especially in marriage (see also confirmation of its place in adoption: the law of February 6, 2001). Through the stability afforded by this connection, the conflict rule has an interest in ensuring the continuity of legal situations. It also emphasizes that in a post-modern world enamored with diversity, the cultural identity of individuals is upheld. Today, these advantages are leading community authorities to propose EU rules on conflicts of divorce laws that would provide immigrants a legislative option (professio juris).8 It would be a choice between the law of the habitual residence of the spouses at the time of their agreement, that of their last common habitual residence if one of them still resides there at the time of the agreement, the national law of one of the spouses, and the law of the forum.9 By the choice of the spouses, the religious law of their nationality could essentially be applied. This has stirred up some skeletons (see the Iranian divorce case mentioned during discussions on the revision of n.2201/2003 EC Regulation on jurisdiction, recognition and enforcement of judgments in matrimonial matters).10

However, under the new regulatory proposal (known as Rome III), forum law is substituted for the applicable law if the latter “does not accommodate divorce

8 Proposal for a Council Regulation of July 17, 2006 amending Regulation EC n.2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (COM 2006/0399 final).

9 In the absence of this option (the parties’ choice of law), there is a series of legal options, in descending order: apply the law of the common habitual residence or of the last habitual residence if one spouse still resides there; failing that, the law of common nationality, and the law of the forum.

10 C. Nourissat. Sur l’élaboration d’une source perturbatrice: à propos du droit international privé communautaire. D.2007, 1098. This is the start of a note by the Swedish Ministry of Justice that warned against the possible consequences of the use of free will. The Court of Cassation, moreover, has already had occasion to recognize the jurisdiction of Iranian law governing divorce: Civ. February 25, 1986, Rev. crit. DIP 1987, 103 n. F. Monéger, but recognition of a divorce has been refused on the grounds that the manner provided by this Act had not been met.


or does not provide access to divorce or separation to either spouse by reason of gender.” (art. 5 Prop.)

Now, specifically, foreign rules designated by private international law are always accepted to the extent that they are compatible with the international public policy forum and with the values we consider essential. A quick overview will show us that if there is a serious contradiction between Muslim rules invoked in the French courts and French public policy principles, the solutions can be mixed. A certain moderation in the reaction of the French public, which recognizes the interrelationship between each situation and the forum, shows that the clash of civilizations is not inevitable and that tensions between the systems, as far apart as they may seem from one another, can be eased.

The Opposition of Values

To illustrate this opposition, we will put ourselves first on the side of the rules of Islamic law invoked in France, then on the side of the fundamental principles of French law.

Islamic Rules Invoked in the French Courts

The rules derived from Islam which are invoked in France touch on different familial issues: marriage, divorce, parentage, matrimonial regimes and inheritance.11 A number of these rules do not pose a problem because they are not discriminatory. Indeed, it is not their religious origin, but their content which must be considered and their application to each particular case. Thus in matters of matrimonial property, notaries and French judges do not hesitate to apply Islamic law when it is opted for by the spouses, or if they had their first marital home in a country under Islamic law. They then equate the existence of a matrimonial regime in this system with a separation of property. The Court of Cassation even ruled in a decision on November 22, 2005 that dowry in Islamic law (maher) is not contrary to French international public policy, quashing the appeal decision that had argued, according to a contested interpretation, that maher was “the selling price a woman sets for herself by marrying,” and thus “contrary to the French public order, which cannot tolerate the sale of human beings.” For the Court of Cassation, however, a dowry is simply a convention establishing the consent of spouses to marriage.12

11 Compare A.S.A. Abu-Salieh, roit musulman de la famille et des successions en Suisse, Rev.. crit. DIP, 2007, 491. Reviewing the norms of Muslim families who oppose the rules in force in Switzerland.

12 JDI 2006, 1365 n. MC Najm, and L. Millot FPBlanc, introduction à l’étude du droit musulman, Dalloz 2ème éd., 2001 nn.308–12 refer to this theory of pricing backed by Marcel Morand but only to refute it strongly.


In another example concerning international adoption, the legislature itself has taken the role of enforcing the prohibition of the institution, such as has been enacted by most Muslim countries. This prohibition is based on verses 4 and 5 of Surah XXXIII: “Allah has not made any man two hearts in his breast. … In your adopted children, he has not made your son. Those are your words (uttered) in your mouth, (but they are false). Allah says (only) truth and He guides on the Path.” Indeed, Article 370-3 of the Civil Code from the Act of February 6, 2001, provides that adoption cannot be imposed when it is prohibited by the national law of either the adopters or by the adoptee. Criticized by some writers, this concession to rules originating from foreign religious sources has violated the Fanthou ruling in 1995 that had decided that

two French spouses may proceed with the adoption of a child whose personal law does not recognize or prohibits the institution, provided that, notwithstanding the provisions of this Act, the representative of the minor has given consent to adoption, especially in cases of plenary adoption, representing a complete and irrevocable severance of ties between the minor and his biological family or regulatory authorities of his country. 13

Some appellate courts, under pressure from parents who are eager applicants, have subsequently attempted to circumvent the ban, likening the Kafala of Islamic law to a simple adoption. The Kafala is an institution in which by legal decision, a child is raised by a legally married couple that supports it, but without the establishment of a parental relationship. The Court of Cassation, referring to Article 370-3 of the Civil Code has condemned such circumventions by two judgments; one on October 10, 2006,14 confirmed again July 9, 2008.15 Note that both Algerian and Moroccan law prohibit adoption and that the Kafala is not an adoption. Despite the fact that the solution is doctrinally assessed in various ways,16 we can acknowledge (with H. Fulchiron) a fair interpretation of foreign law and a strict application of French law. The message seems to have been heard by the trial judges, who now reject applications for adoption of these children and consider that Kafala has only been granted to applicants (Koufalaf) seeking

13 Civ.1, May 10, 1995, Rev. crit DIP 1995, 547 n. Muir-Watt, D. 1995, 544 n. Larribau-Terneyre.

14 Droit de la famille 2007 Comm.96 by M. Farge, H. Fulchiron: Adoption is not about Kafala, D.2007, 816.

15 Civ.1, July 9, 2008, n.2008–Jurisdata 044,757, Family Law in 2008 Comm. 133, by M. Farge.

16 Some consider it contrary to the interests of the child in having a stable situation, and even a right to be adopted: v.par ex. J.Rubellin-Devichi, JCP 1999 I 160 (the Circular from 16 February 1999).


legal guardianship or the delegation of parental authority,17 even when the Kafala is accompanied by a Tanzil, which allows for the establishment of a person as an heir even if he does not qualify under Moroccan law. In such circumstances, the court of Aix-en-Provence is bound merely to say that the decision has no effect on descent and does not correspond to a simple adoption as in French law.18 These decisions reveal a certain discomfort with foreign institutions. It does not seem enough to stick to a guardianship or a delegation of parental authority.19 The best solution might be to give the Kafala and Tanzil unique effects that are theirs by virtue of foreign judgments. Indeed, it is the vocation of private international law to allow in the forum state the application of rules and institutions pertaining to foreign law whose jurisdiction has been recognized.

Besides these Islamic style rules that have become accepted by the French legal system, there are other rules which are characterized by inequality between men and women, whether in marriage (the wife not being allowed to give personal consent and sometimes even being forced into marriage), family organization marked by male dominance, the dissolution of marriage designed to benefit the husband, and inheritance rights, in which the share of the male heir is twice that of the female heir. The most well-known institutions are discriminatory and uni-directional Muslim polygamy, practiced in most Muslim countries, and repudiation (talak), a manner of dissolving marriages reserved for the husband, who has sole discretion over the decision. These institutions, although they are not exclusively Muslim, since they exist notably in Hebrew law, are more indicative of the inferior status of women in Islam, which is also unambiguous on this point: “Men are the maintainers of women because Allah has made the one superior to the other and because they spend out of their property … ”20 The inequality of women and men certainly has a long history in our region, as Professor Ali Mezghani jokingly explained, parodying Descartes: “In the history of mankind, inequality between men and women is the thing most fairly distributed.”21 In addition, tolerance was put in the background vis-á-vis repudiation in colonial times,22 and even after the Second World War, the chancellor admitted that an Algerian residing in metropolitan France could repudiate his wife by naming a

17 Limoges, December 18, 2006, n.2006–Jurisdata 342,694; Nimes ch.2 C December 12, 2007, n.2007–Jurisdata 351,346; Toulouse, ch.1 Sect.2 December 18, 2007, n.2007–Jurisdata 353,550 , Aix-en-Provence, ch.1 B January 10, 2008, n.2008–Jurisdata 356,303.

18 Aix-en-Provence, Ch.1 B, January 10, 2008 Prev.19 M. Farge, note Prev. observes that the French measures in question are fragile and

do not respect the spirit of the institution that benefits the child during his minority, while no such action is required from the assignee or guardian.

20 Surah IV, 34, reported by L. Milliot and FPBlanc, op. cit. n.378.21 Mezghani, A.J. Le juge français et les institutions du droit musulman. JDI, 2003,

721, 724.22 I. Fadlallah note under Civ.1 November 3, 1983, Rohbi, Rev. crit. DIP 1984, 332.


representative to this effect.23 In 1983, the Court of Cassation was clearly well positioned to recognize a Moroccan repudiation, though the Franco-Moroccan Convention, signed August 10, 1981, related to personal status and the family and judiciary cooperation, Article 9 of which gives jurisdiction over dissolution of marriage to the law of the state of which the spouses are nationals. Yet polygamy and repudiation are institutions considered “foreign to [the] souls” of Westerners, in the words of Dean Carbonnier.24 They solidify the conflict between Muslim and Western conceptions of marriage and family. We must however point out that although instances of repudiations in France pronounced by those originating from Muslim countries are relatively frequent, instances of polygamy are increasingly rare. The likely explanation is that the legislature in 1993 put a moratorium on the arrival of polygamous families in France. Not only are foreign polygamous families prohibited,25 but living in a state of polygamy leads to the refusal of a residence permit26 and prevents the acquisition of French nationality.27 The cases of polygamy are therefore generally limited to a few cases of divorce after remarriage of the husband in his country of origin28 or problems of inheritance and social rights (pensions) requested by wives who came to France before 1993. Private international law has showed some openness on these points.

The Fundamental Principles of French Law

It is natural to consider first the concept of laïcité (roughly, secularism), which is held dear in French law. The principle of laïcité indeed finds application in marriage. Since the secularism in effect during the Revolution of 1789, the principle of laicité requires that marriage be celebrated before the civil registrar. French law certainly condones religious celebrations, but they cannot be held until after the civil ceremony, and criminal sanctions are issued against ministers who habitually transgress the priority of civil marriage.29 This view is the opposite

23 Narrated by R Begdache el Husseini, Le droit international privé français et la répudiation islamique. Biblio. private law T.361 LGD J 2002 n.15.

24 Expression borrowed from J. Carbonnier, Terre et ciel dans le droit du mariage, Mélanges Ripert T.1 LGDJ 1950, 341.

25 Art. L 411–17 Code entry and stay of foreigners and asylum (CESEDA).26 Art. L 313-11 CESEDA for temporary residence permit, L.314–15 for the Resident

Card.27 Eg.: Paris 1 cC March 6, 2008, n.2008–Jurisdata 358,135.28 Paris, ch. 24 A, January 30, 2008, n.2008–Jurisdata 355,287 (divorced spouses

Mali); Paris ch.24A, 28 May 2008, Jurisata n.2008–364,940 (married Moroccan), Paris 24 C, 22 March 2007, n. Jurisdata 2007–331594 (husband of Senegalese origin), –11 in October 2006, n.2006–Jurisdata 321,798 (married Senegalese); Colmar, Ch 5 A, October 2, 2006, n.2006–Jurisdata 331,586 (married Senegalese).

29 Penal Code Art. 433-21.


of religious systems that require a religious celebration for the marriage of their nationals, even abroad. This problem has mainly affected either Catholic or Orthodox countries but occasionally affects Muslim countries as well. Thus, a civil ceremony in France between a Moroccan Muslim and a French non-Muslim was cancelled by a Moroccan court for the lack of a prior religious celebration. The Paris court rejected the enforcement of this ruling because it “clashed with the principle of secularism in marriage.”30

Laicité or secularism also means not discriminating based on membership in a particular religion. In this regard, it opposes the rule of Islamic law which prohibits Muslim women from marrying non-Muslims31 (a principle referred to as a restriction due to differences of religion, and which is not peculiar to Islamic law32). The Court of Cassation in Paris has on several occasions rejected the application of known Algerian and Moroccan laws forbidding a Muslim woman from marrying a non-Muslim because this rule is viewed as involving discrimination based on gender and religion.33 The rejection of religious discrimination leads the same court to condemn estate failures that affect non-Muslims.34

It is noted here that restrictions due to differences of religion have been abandoned recently in Tunisian jurisprudence. The Court of Cassation of Tunis, in a highly contentious decision rendered on January 6, 2004 and approved by the Tunisian Court of Cassation on December 20, 2004, allowed that marriage between Muslims and non-Muslims was valid under the Tunisian Code of Personal Status. The Tunis court stated, notably, that “the guarantee of religious freedom in Article 5 of the Constitution is not compatible with the consecration of the religious element as a barrier to marriage or as a hindrance to inheritance.”35

There is another important principle in the rules of Islamic law which must be dealt with: the principle of equality, of which the first expression is gender equality.

French law shares the principle of equality of men and women with other Western countries. Proclaimed by various international conventions,36 it has

30 TGI Paris, April 7, 1981, JDI 1982, 699 n. MLNiboyet.31 L. Milliot and FPBlanc. Introduction à l’étude du droit musulman. Dalloz 2001,

n.323.32 v.Paris, November 15, 1922, HB 1924, 2, 65 n. Audinet, recognizing the valid

marriage of a Catholic and a Jew. In contrast to Serbian law, Hebrew law is also a good example in this respect of the issue, v. Mr. Clem. Najm.

33 Paris 9 June 1995, D.1996 somm.171 obs. B. Audit—7 June 1996, D.1996 IR 172; Paris 1 cC 22 October 1996, n.1996–Jurisdata 023,787, ousting Moroccan law; 24 June 1997, n.1997–Jurisdata 024,807, ousting Algerian law.

34 Civ. November 17, 1964, JCP 1965 II 13,978 concl. Lindon.35 JDI 2005, 1193 n. S. Ben Achour.36 Universal Declaration of Human Rights, art. 16; 1979, UN Convention on the

Elimination of All Forms of Discrimination against Women, art. 16-1 Resolution of the Council of Europe (78)37 on equality of spouses in civil law.


especially been reinforced in Europe since November 22, 1984, by an additional protocol to the European Convention on Human Rights (Protocol No. 7). According to Article 5, “Spouses shall enjoy equality of rights between them during marriage and at its dissolution.” Through a series of rulings on February 17, 2004, this principle has been invoked by the French Court of Cassation to deny the recognition of Muslim divorces as a privilege of the husband.37 In a general formula, the Court determined that the

decision declaring a unilateral repudiation by the husband without giving legal attention to the possible objection of the woman, and denying the authority of any power other than to develop the financial consequences of this rupture of the marriage was contrary to the principle of equality of spouses upon dissolution of marriage, recognized by Article 5 of the Protocol of November 22, 1984 supplementing the European Convention on Human Rights, which France is committed to enforce for any person within its jurisdiction, and therefore the international public order …

This solution has been imposed particularly on Moroccan couples, even though France has concluded a treaty with Morocco, the Convention of August 10, 1981, guaranteeing the citizens of Morocco respect and recognition for their personal status concerning divorce judgments.38

This essentially permanent legislation was met with approval from the European Court of Human Rights in the case DD v. France in November 8, 2005.39 This is the most striking application of the principle of equality of spouses, but there are other, more discreet instances, which implement the more general principle of equality of the sexes. Thus, a Paris court ruling in 1997, in the name of French international public policy, overturned the Qur’anic rule on marriage by requiring the presence of a matrimonial guardian in order to ensure that the express consent of the wife had been given.40 At the same time, it is a way to reject the discrimination established by Muslim law in matters of inheritance. The French notary, assuming the law of the last residence of the deceased, which applies to estate assets and which prescribes an unequal division between girls and boys (the former receiving only half of what is given to the latter), must avoid and resolve the problem by substituting the application of French estate law.41

37 D. 2004 824 concl. Cavarroc, and the article by P. Curve, Le rejet des répudiations musulmanes , 815, JCP 2004 II 10,128 nHFulchiron, JDI 2004, 1200 n. L. Gannagé, Rev. crit. DIP 2004, 423 n. P. Hammje.

38 Franco-Moroccan Convention, August 10, 1981, art. 13.39 Although it is only a case of striking off, following the withdrawal of the applicant,

the court noted that the cases of 17 February 2004 were “of great importance.”40 Paris, June 24, 1997, n.1997–Jurisdata 024, 807.41 M. Revillard. Private international law and community: notarial practice. Ed

Defrénois, 2006, n.587.


Another aspect of the principle of equality stands against the application of Islamic law pertaining to equality between legitimate and illegitimate children. This principle was affirmed in French law gradually, including the law of January 3, 1972 relating to parentage. The evolution of the law was completed by an order of July 4, 2005, reforming this area, which deleted the reference to legitimate or natural filiation. At the European level, the European Court of Human Rights has also tried to impose this equality, in particular in its famous Marckx v. Belgium decision.42 The Court of Cassation has justified this principle by rejecting the application of foreign laws, including Muslim-inspired ones, which prohibit the establishment of natural descent. However, this exclusion is actually qualified. The instrument used to set aside Islamic law in all these cases is not the principle of equality taken by itself, or even that of any right to descent, but the exception of the international public order, which this principle embodies. This technique introduces a certain relativity in reasoning while avoiding taking a position on universal or relative rights. The same attitude in Germany is maintained by Kurt Siehr.43 However, this does not mean that the European Court of Human Rights itself ignores nuance in the implementation of the Convention. Instead, as shown by a 2005 thesis,44 while accepting an “outsourcing” of the Convention, it introduces a change in control when it comes to enforcement in a state not party to the Convention, or the recognition of a ruling in such a state. Nevertheless, this subject seems rare in family law, where a European model is imposed through the principle of non-discrimination and taking into account the interests of the child.

In all cases, the use of international public policy permits a deft solution to conflict between international conventions: thus, conflicts that pit the Franco-Moroccan convention of 1981 against the European Convention are decided by the Court of Cassation in the following manner:45 the Franco-Moroccan Convention of August 10, 1981 restores the recognition and enforcement of the agreement of judicial cooperation of October 5, 1957 in which Article 16 requires that the recognition not be contrary to “French international public policy.” The principle of equality of spouses posed by Article 5 of Protocol 7 in the European Convention on Human Rights is part of the French public order, which allows for the refusal of the recognition of repudiation without openly ignoring France’s bilateral commitments. The use of the public policy exception also offers the Court an opportunity, as we shall see, to limit the scope of fundamental principles

42 Marckx v. Belgium, June 13, 1979: Series A no.31.43 K. Siehr. Divorce of Muslim marriages in secular courts, Liber Amicorum Hélène

Gaudemet-Tallon. Paris: Dalloz, 2008, 809, 817.44 F. Marchadier. Les Objectifs Généraux du Droit International Privé à l’Epreuve de

la Convention Européenne des Droits de l’Homme, Brussels: Bruylant, 2005, 355.45 Civ.1, December 19, 1995, Bull. n.469; ditto for the Franco-Algerian August 27,

1964 in one of the cases February 17, 2004, cited.


whose procedure depends on such a triggering mechanism.46 By demonstrating a commitment to moderation in the implementation of these principles, it absorbs to some extent the conflict between civilizations.

The Easing of Tensions

The objections raised, if real, do not automatically trigger a confrontation that leads to the radical exclusion of rules of Islamic law by the French legal system. Instead, it appears that the solutions given in private international law are fairly nuanced. Above all, the prospect of conflicts of civilization appears distant even when you look at recent developments in family law in Morocco and Algeria. The reforms show that the rapprochement of systems is possible, each taking a step towards the other.

The Nuances of French Jurisprudence

On the French side, two considerations have eased opposition. First, a classic case drew a distinction based on the concept of regularly acquired rights abroad. The reaction of the public order is not the same according to the Court of Cassation, “seeing as it obstructs the acquisition of a right in France, or seeing as it is a question of allowing the effects of a right acquired without fraud abroad to be maintained in France in accordance with the law having jurisdiction under French private international law.”47 The law applies this distinction in the case of polygamy. On one side, the conclusion of a polygamous marriage in France is impossible; even if the personal status of the spouses permits it, French international public policy opposes it.48 The prohibition of bigamy imposed by Article 147 of the Civil Code and reinforced by criminal sanctions, is in full play here. However, if polygamous marriage has been duly entered into abroad, according to the personal status of the parties, the Court agrees to take into account a “mitigated effect” of public order, in that it allows such a marriage to have some effects in France. These are largely economic points such as maintenance49 or implications regarding inheritance.50

46 P. Courbe of order public outreach, in private international law: spirit and methods, essays in honor of P. Lagarde, Dalloz, 2005, 227. P. Hammje. Human rights and public order, rev. crit. DIP, 1997, 14; compare L. Gannagé. The Hierarchy Of Standards And Methods Of Private International Law. Paris: LGDJ, 2001, 345.

47 Civ., 17 April 1953. Rivière. Grand Case Jurisp.Fr.DIP (GAJFDIP), n.26.48 Paris, June 7, 1994, D. 1994 IR 177; February 7, 2002, JCP 2002 IV 1854—

Compare Paris February 17, 2005, n.2005–Jurisdata 266, 735 (substitution of French law to foreign law).

49 Cass. civ. January 28, 1958, Chemouni, GAJFDIP n.30.50 Civ.1, January 3, 1980, Bendeddouche, Rev. crit. DIP 1980, 331 n. Batiffol, JDI

1980, 327 n. Simon Depitre, GAJFDIP n.61.


From this point of view, the French notaries divide the assets that would normally be given to the surviving spouse among the different wives’ rights. An exception is that this division cannot affect a wife of French nationality.51

We proceed in the same way where social rights are concerned, for example concerning pensions: the sum of the pension is shared among the spouses in proportion to the duration of their shared life with the deceased spouse.52 This tolerance does not extend to pecuniary plans, which appear in the interest of the wife of a polygamous foreigner. Not only is there no question of requiring wives to live together, but if the husband wants to contract another marriage in another country, this is seen as a cause for divorce that can be invoked before a French judge in an application for fault-based divorce. A recent ruling of the Court of Paris53 concerning the divorce of two Malians, requested by the wife after a second marriage was contracted in Mali by the husband, found that although the country of origin of the spouses permits polygamy, it is contrary to French law, and thus “the husband’s behavior is, in France, a breach of the obligations contracted through union with the spouse.”

Secondly, the implementation of international public policy in order to supplant foreign law depends on the degree of involvement of French interests. A generally accepted idea today is that there must be sufficient connection with the forum so that the French public reacts against the foreign law which does not conform to French values. This is called the order of closeness, which comes from the German concept of Inlandsbeziehung.

This concept is used in various fields concerning Islamic law: divorce, natural descent, and adoption, opposite the Catholic-inspired laws that prohibited it. The most frequent case in French courts is that of repudiation. It is not recognized as long as the husband, or at least the woman, is domiciled in France,54 or while both spouses, even while living abroad (in this case, Morocco), are of French nationality.55 Judgments pronounced since 2004 indicate the intention of the Court of Cassation to interpret “sufficient links” with France fairly broadly. An example

51 Civ.1, July 6 1988, Baaziz, Rev. crit. DIP 1989, 71 n. Y. Lequette. 52 Civ.2, February 14, 2007, Jurisdata 2007–037612—25 April 2007, n.2007–

Jurisdata 038,506 (under the Franco-Algerian from October 1, 1980), 2 in May 2007, n. Jurisdata 2007–038712: “The French public did not prevent the acquisition of rights in France on the basis of a situation created without fraud abroad in accordance with the law having jurisdiction under private international law,” v. vine. contra, about the widow’s allowance, Paris, 18 Ch.B, April 26, 2007, n.2007–Jurisdata 333, 375.

53 Paris, 24 cA January 30, 2008, Jurisdata 2008–355287; Colmar, 5 cA, October 20, 2006, n.2006–Jurisdata 331, 586.

54 Civ.1 February 17, 2004; September 19 2007, family 2007 Dr. Comm.209; October 17, 2007, n.2007–Jurisdata 040,897 (both cases consisted of Algerian spouses living in France).

55 Civ. May 1, 10, 2006, JCP G 2007 II 10,165 1 st esp. n. T. Azzi; Civ.1, March 14, 2002, JCP 2002 10,095 n. Fulchiron.


of this is the case of September 20, 2006, alleging that an appellate court had rejected the implementation of a divorce because the wife, an Algerian national, had lived in France for only three months with her husband before returning voluntarily to Algeria, and that the repudiation had occurred after their return. The Court of Cassation took into account that the husband was a French citizen and resident in France, and that his wife, who was currently residing in France, had acted as a contributor towards the expenses of the marriage.56 To some this justification seems excessive because the only valid reason to oppose the divorce was the fact that the husband was French (but probably bi-national).57

Another decision by the Court of Cassation, on February 20, 2008,58 found that the residence of the spouses in France at the time of referral to the French judge was an obstacle to divorce, even though the wife had been sent to Algeria, which suggests that this is where she had her home at that time. Does this comprehensive approach to residential ties with France, from a temporal viewpoint, not risk multiplying such unstable situations? It seems unreasonable to accept a protest based on proximity when one spouse resides in France.59 Only the wife’s residence in France, or in a state that does not tolerate repudiation, renders the repudiation unacceptable.

However, the rejection of Muslim divorces constitutes the rule, and examples of their admission are ultimately very rare. One can cite a ruling of the Court of Cassation of Amiens on October 3, 200760 that, after verifying the competence of the Moroccan court that approved the divorce, found that the wife had appeared and been able to assert her rights and found that “the act judicially approved by the Moroccan court is akin to a divorce by mutual consent under the judge’s control” and is not contrary to international public policy.

The position adopted by the French Court of Cassation is close to that which has been adopted in other European countries. Thus the Belgian law of July 16, 2004, on the Code of Private International Law in Article 57 (“Dissolution of marriage abroad based on the will of the husband”) retains the principle of non-recognition of these acts reserved to the husband but concedes an exception in § 2, conditioned by various cumulative conditions when there are considerations of nationality and habitual residence of the spouses at the time of approval of the act.61 In Germany, the Court reached the same conclusion by application of Article

56 Civ. 1, September 20, 2006, 2007 Dr. Famille 2007 Comm. 209 n. Farge.57 Already in this sense, Civ.1, 1May 17, 1993, Rev. crit. DIP 1993, 684 n. P. Courbe,

JCP 1993 II 22,172 n. J. Deprez, JDI 1994, 115 1st esp. n. Y. Lequette more recently, v. Montpellier, February 26, 2008, n.2008–Jurisdata 360, 141 (husband Franco-Moroccan).

58 Appeal N.07-14,469, Ms. Badache.59 In this sense Grenoble April 30, 2007, n.2007–Jurisdata 341, 755.60 Jurisdata n.2007–350141. The fact that the husband had acquired French nationality

has apparently not troubled the Court and its decision on this point is questionable.61 Emphasis added. These conditions are: 1) the document has been approved by a

court in the State where it has been established; 2) during the certification process, neither spouse had the nationality of a State whose laws do not recognize this form of dissolution


6 EGBGB. According to Kurt Siehr, “Under Art.6 EGBGB foreign law will not be applied if the result of application of foreign law in cases with close relations in Germany … manifestly violates public policy, especially human rights as codified in the German constitution, the Grundgesetz.” The Swiss Federal Court also adopted a nuanced approach: starting from an assessment in concreto, it focuses on various factors, including whether the wife consents to the divorce or not, and the ties of the wife with Switzerland.62

To the care taken toward moderation in Europe, another mitigating factor is added, which is probably the most promising. It involves the changes which have occurred in recent years in Muslim countries with which France maintains the closest relations: Algeria and Morocco (Tunisia being a case apart because of the break made in 1956 in the Personal Status Code). These changes are part of a larger family law secularization movement in Arab countries.

The Evolution of Family Law in Algeria and Morocco

Major reforms were adopted in family matters in 2004 in Morocco63 and in 2005 in Algeria.64 Although polygamy and repudiation were not abolished, a major modernization effort was undertaken. Thus, in Morocco, even if the new Mouddawana does not break with the tradition of Islamic law, according to M.C. Foblets and Mr. Loukili,65 it makes “provisions that express the desire of the Moroccan legislature to do justice to women, putting them on equal footing with men, regarding both the dissolution of marriage and in relations with children,” and provides that measures taken to improve the situation of women should lead to the marginalization of the practices of polygamy and repudiation. According to Professor Fatna Sarehane of the University of Casablanca, the new Moroccan rules governing repudiation “under the jurisdiction of the court attempted conciliation through the new rules governing the convocation of wives and financial guarantees

of marriage; 3) on approval, neither spouse had habitual residence in a state whose laws do not recognize this form of dissolution of marriage; 4) the woman accepted with certainty and without constraint the dissolution of marriage; 5) there are no grounds for refusal under article 25, which precludes recognition (which refers to the normal requirements of the executor, including compliance with substantive and procedural public order).

62 Case September 3, 1996 and July 4, 2000, reported in chr. Swiss Court under the direction of B. Dutoit, JDI, 2005, 849; compare SAAdleeb Abu Salieh, art. Prev., 518–19.

63 F. Sarehane, the new code Moroccan family, Gaz. Pal. September 3–4, 2004, 2; M. Foblets and M. Loukili. Marriage and divorce in the new code Moroccan family: implications for the Moroccans in Europe? Rev.crit. DIP, 2006, 524.

64 The legislator recently decided a case in which, in a spirit of reciprocity, the wife was granted the right to unilaterally dissolve the marriage: NMMahieddine, La dissolution du mariage en droit algérien, Rev. int. Dr. Comparative, 2006, 98–9.

65 B. Botiveau. Family law in the legislative politics of the Machrek. Annuaire Droit et Religions, 4, 2009–10, 21–36.


are all obstacles placed before the husband in order to discourage him.”66 We can predict then, according to this author, a decrease of conflicts in Moroccan-European relations.67 The numbers confirm this view, since the number of divorces fell sharply in Morocco between 2003 and 2004.68 The same perspective is emerging in relations with Algeria, where the divorce rate is now lower than 19 percent while it was estimated at 70 percent in 1959.69 The evolution of law could further develop if the movements campaigning today for further reforms are able to make themselves heard. A “shadow report” on the reform of the Algerian family was submitted to the UN in January 2005 by a group called “Maghreb Equality,”70 showing the willingness of community associations to go further in recognizing the rights of women.

The impact of these reforms in practice, however, is mixed. Some argue they are not sufficient, and more are necessary to ensure the coordination of legal systems.71 However, since women have both procedural safeguards and also now have a recognized right of unilateral dissolution of marriage, which restores a form of equality between spouses, French international public policy seems less threatened, because since 2004 it has imposed a law allowing for divorce due to the irretrievable breakdown of the marriage bond that permits a woman to divorce her husband after two years of separation. The French courts appear to have taken advantage of the principle recognized by the new Moroccan law of a different access to the dissolution of marriage for men and women, rejecting the idea of abstract equality between spouses.72

Ultimately, the public order may move toward the question of the property consequences of divorce. The Court of Cassation has indeed recently approved an appellate court decision that rejected the Moroccan law applicable to divorce proceedings with respect to compensatory allowances and instead applied French law. The Moroccan Family Code allowing the wife to receive limited alimony

66 F. Sarehane. Repudiation, La répudiation, quels obstacles pour les marocains résidant en France? Rev. int. Dr. comp. 2006, 1, 47.

67 Art. Prev. Spec., 3.68 M.L. Niboyet. Regards français sur la reconnaissance en France des répudiations

musulmanes. Revue Internationale de Droit Comparé, 2006, 44. Citing statistics from the Ministry of Justice that the number of divorces has been divided by more than three in this period.

69 NMMahieddin, 93.70 V. Site, available at: www.mediterraneas.org/article.php3?id_article=225 (accessed

March 15, 2012).71 A.J. Mezghani. Why tolerance for divorces? Revue Internationale de Droit

Compare 2006, 61, 67. “The agency can change its nature simply because the woman may also obtain a divorce under the same conditions as the husband. Its nature is not affected by its periphery. The judge is not called for to receive in full the legal alien.”

72 F. Monéger note in Paris, 1st cC, December 2, 2004, Droit et Patrimoine, April 2005 n.136 compare already before J. Hauser, RTDCiv. 1999, 70.


during the waiting period “did not allocate a sufficient allowance to the wife after the divorce,” from which it follows that it is “on this point, contrary to French international public policy.”73 But on this point specifically, the reform of February 2004 has significantly increased the rights of the wife, giving the judge discretion to escape the claims of Moroccan law that run contrary to public policy. Thus the Court of Paris, in a decision dated May 19, 2005, approved the divorce of a Moroccan couple granted under Articles 98 and 9974 (divorce due to injury, exclusively reserved for women) after deeming the financial compensation to the wife to be acceptable and concluding that these articles were not contrary to public policy. The court of Limoges, on the other hand, denied a Moroccan couple a divorce under sections 102 and 104 of the Moroccan code (failure of the husband in his duty to provide and absence from the matrimonial home for more than a year), rejecting the husband’s argument that in Moroccan culture, a married woman does not go out with a man unknown to the family.

These developments of the substantive law of the countries concerned must be reconciled with the intellectual movement that has developed in favor of modernizing Muslim society. The so-called new thinkers of Islam, such as Tunisians Mohamed Talbi and Mohamed Charfi; the Moroccan A. Filali-Ansary; the French political scientist of Moroccan origin Rachid Benzine;75 and Imam Souheib Bencheikh, are seeking to convince people “that Islam and modernity are compatible, that tradition is not the dogma, that faith is not a law” as reported by the magazine Le Monde 2.76 “Reconciling Islam with freedom and human rights is clearly affirmed by the modern, enlightened Muslim thinkers,” says Mohamed Charfi, for whom law and religion are related only for historical reasons.77 Parting from the idea that the source of any rule of law is in the scriptures, these intellectuals are attempting to revive the interpretation of the Qur’an (ijtihad) that has been interrupted for ten centuries. As explained by S. Bencheikh, then Imam of Marseille, “When the Prophet said: ‘Teach your children horse riding, swimming and archery,’ now it means ‘Teach them English, computer and Internet: the goal

73 Civ.1, November 28, 2006, 280 n. D.2007 A. Devers, Rev. crit. DIP 2007, 584 n, N Joubert.

74 Paris, May 19, 2005, Dr. Comm.40 family in 2006, n. M. Farge, refusing to rule out Moroccan law due compensation as it provides the benefit of the wife.

75 R. Benzine co-authored a book with the priest C. Delorme. Nous Avons Tant de Choses à Nous Dire. Paris: Albin Michel, 1998.

76 Those who want to modernize Islam, Le Monde 2, No. 173, June 9–15, 2007, 20.77 Charfi, M. Islam et Liberté, Le Malentendu Historique. Paris: Albin Michel, 1998,

184. Compare M.S. Mahmassani. Le droit musulman et la vocation universelle de l’Islam, in Une Certaine Idée du droit, Melanges Offerts à André Decocq. Paris: Litec, 2004, 437. Also various contributions to essays in honor of Mohamed Charfi, Center for Academic Publication, Tunis 2001.


is to master the skills of the century. Likewise the Qur’an has prescribed the veil to protect the woman. Today, it is the school that protects.”78

In this current of thought opposed to unequal or discriminatory institutions prescribed in traditional Muslim law, criticism is often very strong against those who defend Western relativism of human rights.79 In denying the very possibility of universal values, says Professor Lena Gannagé, relativism “has fed the specter of conflict of civilizations” and “leads inevitably to limiting cross-cultural relations.”80 It is strange to note that while in the name of Tunisian public order, which is based in particular on instruments relating to human rights, the Tunisian Court has refused to recognize Muslim repudiation (in this case Egyptian),81 the highest English judge, Lord Phillips of Worth Matravers, has expressed support for the enforcement of Islamic law. But if, relative to these extreme positions, the more nuanced position of French judges seems reasonable to us, it is not in the name of a dogma of cultural equivalence justifying a glorification of diversity; it is because one would be rash to forget the state of our family law less than a half-century ago: where we today proclaim perfect gender equality, did we not then have the husband as the titular head of the family, with twice as much power, both martially and paternally, and the nuclear family as the sole legitimate model? Evolution took place through a succession of reforms over several decades, and it is impossible to say what those of tomorrow, or the day after tomorrow, will be. Such awareness invites the exercise of restraint in the judgment of foreign legal systems, especially at a time when they are themselves in midst of change.

The attitude of the French and other European legal systems reflects a desire not to exacerbate conflicts between Islamic and Western law. But finding a balance between defending values founded upon human rights and a respect for foreign cultures is certainly delicate and always poses the same problem of how far tolerance should go toward systems based on doctrines different from our own and how to escape the reproach of imperialism and multiculturalism. A guideline that is firm but not without nuance now seems to be emerging, where the norm of imposing respect dominates, at least on the territory of the public forum, sometimes beyond the principles of secularism and equality, which we can hope will one day accede to the rank of the common values of humanity.

78 CA Limoges September 12, 2007, Jurisdata n. 2007–01322.79 A.J. Mezghani. Le juge français et les institutions du droit musulman. JDI 2003,

721. The same author Quelle tolérance pour les répudiations? 80 E relativisme des droits de l’homme dans l’espace méditerranée, Rev. int. Dr.

comp. 2006, 101.81 Trib. 1st Instance in Tunis, June 27, 2000, n.34179.

Part III Education and Finance

Chapter 6

The Training of ImamsSilvio Ferrari

Introduction

The training of imams seems to have become the last step in the process of integration of Islam in Europe. From Vienna to Barcelona, Amsterdam to Bern, via Paris, Louvain, Strasbourg and still other cities, the universities, schools, institutes, and college courses that offer training to the leaders of Muslim communities are multiplying.

What can explain the proliferation of these initiatives, often encouraged and financially supported by public institutions? The belief underlying this strategy is that it is necessary to train the leaders of European Muslim communities in Europe. Today the majority of imams come from Muslim countries and often know little of the history, culture, traditions (and sometimes language) of the country in which they conduct their activities. Under these circumstances, it is unrealistic to expect imams from Morocco or Turkey to serve as the bridge of contact between Muslim immigrants in Germany, France, or Spain and European society. Training imams in Europe, therefore, is considered a necessary step to create a European Islam, an Islam which is able to maintain its own religious identity whilst expressing itself through the cultural categories already existing in Europe. This proposal has given rise to criticism and created doubts, caused mainly by the difficulty of separating religion and culture with clarity, but these reservations concern mainly the manner in which the training process would occur rather than its appropriateness. Within this perspective, then, efforts to prepare Muslim leaders in Europe appear to be a necessary step to prevent an immigration process which produces a juxtaposition of separate communities and an absence of communication.

The Problem

The preceding, however, is not an easy goal to achieve. The first problem is cultural and legal. In much of Europe, the prevalent view for almost two centuries has been that the training of clergy and religious personnel is a core competence of religious communities, foreign to the aims and tasks of the state. The seminaries (Protestant, Catholic, and Orthodox), rabbinical colleges, and institutes for training of staff from other religions (for example, Buddhist monks), should be placed under the sole control of the respective religious communities. These communities, under


absolute autonomy, must determine the entry requirements for students, establish the content of the curriculum, select the teachers, and issue licenses which may be provided at the end of the educational process. The state has little or nothing to do with these activities; while it can directly or indirectly finance these training centers, it should not intervene in their management.

The significance of this division of responsibilities between the state and religious communities should not be viewed lightly. The division rests on two pillars that are at the heart of relations between states and religions in the Western world: the principle of the separation of spiritual and temporal orders, and the consequent notion of autonomy of religious communities from state control. On those pillars rests the idea that preparing ministers of religion is the duty of churches and religious communities and that the state must refrain from any action in this field.

Applying these principles, so deeply rooted in Western tradition, to Islam would lead to the conclusion that European states should ignore the training of imams and leave it to the Muslim communities residing in Europe. These communities, unfortunately, lack the cultural background, economic strength, skills, and organizational structure required for an undertaking of this scale. At best, all they can do is ask the immigrants’ native countries to send imams to take care of them. This circular action returns to the initial dilemma by entrusting to a non-European-trained imam the leadership of Muslim communities in Europe.

To break this vicious circle it is necessary to frame the training of imams in a broader perspective, considering precisely what the state can and cannot do in this area.

The starting point for this reflection can be found in the higher education of ministers of religion. This education is usually given in the faculties of theology (or similar centers of learning), which may be set in state universities (this is the model followed in Germany, Austria and other countries) or non-state universities (in the case of the pontifical universities in Italy and the Institut Catholique in Paris). It would be too complicated to go into the details of this distinction and examine the legal status of these institutions, but generally speaking a distinction can be made between countries that do not think it appropriate to offer theological education in state universities and countries where such education is provided in state universities in collaboration with religious institutions. To give just one example, the faculties of Catholic theology that exist in German universities have a special legal status that ensures to the Catholic Church full powers of selection of teaching staff, the monitoring of its teaching, and the definition of curriculum. It can be concluded that even in countries where the teaching of theology is among the disciplines taught in state universities, the idea persists that the state alone is not competent to offer education of a theological nature; rather, the need for cooperation with religious institutions arises, because only they can ensure the orthodoxy of the teaching that is given in these centers of learning.

The conclusion of this brief digression is that the teaching of theology is considered a sui generis teaching that in some cases is completely excluded from the scientific knowledge provided by state universities (the Italian model), while

The Training of Imams 109

in others it is included, but with a distinct legal status (the German model). As such, it follows that the teaching of Islamic religious disciplines, for example Islamic theology or law, should be seen within the context defined by these two models. The possibility of a state that plays the role of theologian without the involvement of Muslim communities arrogates to itself the function of teaching the “true” Islam to Muslims, and is necessarily excluded.

When it comes to the training of imams, however, it does not suffice to think only of religious education; what European governments have in mind, in fact, is a kind of citizenship education, through which the imams can learn about the culture and values of the European country where they live and work. In this case, the public authorities are moving to less slippery ground—it is effectively their responsibility to provide a range of knowledge and information that will allow imams to become more familiar with the language, history, law, cultural heritage, values and principles of the country where they live. The “secular” nature of this knowledge does not imply the necessity of the involvement of religious institutions that is required for theological training.

However there are other problems. First, why should only the imams be involved and not the religious leaders of other communities that have recently immigrated to Europe? Some respond with reasons of expediency. They argue that the number of Muslim immigrants in Europe, the speed of migration and tensions between Islam and the West make it particularly necessary to train imams. Other schools of thought, however, point in the opposite direction; that is to say, that to limit education for citizenship to imams might suggest that only they—and not the religious authorities of other immigrant communities—need it. They conclude that it is better to think in broader terms and extend the training facilities to all religious leaders of immigrant communities in European countries.

Another question to be answered is what value should be attached to this training? Should it be an obligation imposed on all religious leaders or should it be simply a right, left to the goodwill of individuals? Again, principles deeply rooted in European legal tradition can serve as a guide. The public authorities may not make the training course a prerequisite for ministers of religion, as long as the latter remains within the ambit of those religious acts that have no civil effect. In other words, public authorities cannot prevent an imam from delivering Friday sermon in the mosque because he has not followed the training program that the state has provided for ministers of religion. However, the celebration of a marriage, which has civil effects, or access to hospitals and prisons to offer spiritual assistance to co-religionists would be different: In fact, the impact of these acts is not restricted to the internal life of the religious community; they also have an effect on state administration (in the case of marriage) or the acts take place within (and with the organizational support of) public institutions (in the case of spiritual assistance in hospitals and prisons).

Finally, one cannot neglect the aura of ambiguity that surrounds the issue of training imams. In fact, sometimes one gets the impression that such training is invoked more to control the imams than to prepare them to live in European society.


The proposal to restrict the Friday sermon to imams “certified” by attending special courses is an example of this ambivalence. I do not think the issue of training imams can only be addressed in terms of security and control, turning to mechanisms that would put into question the very notion of religious liberty and turn the clock back two centuries to eighteenth-century jurisdictionalism. But, beyond these immediate issues, these proposals show the belief that Muslim communities in Europe pose problems that need to be tackled with exceptional measures, even at the cost of deviating from the principles guiding the relations of states with other religions. Careful thought must precede making such decisions, which bring into play the tradition of freedom in the West. The new Muslim presence poses significant problems, but they can be addressed without changing the cornerstones of the system that governs relations between states and religions in Europe.

Some European Experiences

In Europe, that is, in countries where the principles of pluralism and subsidiarity are highly valued, it is normal that the training of imams and Muslim community leaders takes place through different channels, which sometimes get confused and overlap. To bring some order in this context it is useful to distinguish four different modes of training, albeit with the caveat that any distinction is somewhat arbitrary.

• In some states it is expected that all immigrants from non-EU countries should follow a particular curriculum. In the Flemish region of Belgium, the parliament approved a measure that provides Dutch language courses, introduction to citizenship and job placement. These courses, which are compulsory for all immigrants under the decree of February 28, 2003, must also be complied with by the ministers who come from non-EU countries intending to live in Belgium. Similar steps have been adopted in other European countries, but they will not be taken into account here. It is not a question of training specifically aimed at imams and leaders of religious communities composed of recent immigrants, but of initiatives to provide a minimum level of knowledge to all non-EU immigrants.

• In many European universities there is a strong tradition of Islamic studies: Leiden, Birmingham, Ca ‘Foscari in Venice and the Oriental Studies University of Naples are some of the most renowned centers of excellence in this area of study and teaching. The issues raised by Muslim immigration in Europe and also the political importance acquired by this new presence have led many countries to strengthen existing institutions and create new ones. At the University of Leiden in the Netherlands, to give just one example, the government funded a master’s degree in Islamic studies, which was launched in 2006–2007. Again, these initiatives are not directly aimed at the training of imams and Muslim leaders (although, indirectly, they can do so) and thus remain outside the scope of this article.


• Religious leadership training has been one of the main concerns of immigrant Muslim communities in Europe, and in many countries they have launched initiatives aimed at training imams. In Brussels, the Institute of Islamic Studies, created in 2006, aims to spread Muslim culture among students and graduates of universities in Belgium. One of the departments of the Institute is dedicated to Qur’anic studies, and it is intended specifically to train imams and experts of the Qur’an. The teaching, which lasts four years, is conducted in Arabic, has restricted entry and requires the candidate to be presented by an imam or a sheik. At the end of the course, participants are awarded a title that is not recognized by the state.In Italy, in 2008, the mosque of Brescia organized a short course aimed at providing leaders of Muslim communities a basic knowledge of Italian institutions, immigration laws, and the relationship between religion and the state. The course (which did not fail to provoke debate and controversy) was attended by about fifty people. These initiatives, and others of a similar nature, are aimed at training imams but seek to achieve this goal without any involvement of public authorities. Because the problems mentioned earlier in the chapter do not arise regarding these types of initiatives, they are not taken into account.

• In countries where Islam is taught in public schools, there is often accompanying training for teachers. In Austria for example, these courses are taught by the “Educational Academy of Islamic Religion,” founded in 1998. It may happen that some of the students are or will become imams, but the training they receive at this academy is separate from achieving this qualification. Instead, the training is aimed at preparing teachers.

There are some initiatives that originate from public institutions or the state (or are supported by them) with the express aim of training the religious staff of Islamic communities: The focus of this article shall now be turned to these initiatives. On July 2, 2009, an agreement was signed between the Autonomous University and the Province of Barcelona to organize a training course on religious freedom. This course was addressed “to the staff of the religious denominations present in the municipalities of Barcelona Province” (art. 1), with particular attention to the leaders of Muslim communities and cultural associations (art. 3).

Earlier, in February 2008, the Autonomous University had signed an agreement with two Muslim organizations (the Islamic Council of Catalonia and the socio-cultural association Ibn Batuta) willing to cooperate in the preparation of this initiative. The course started in December 2009 and relied on funding from the Parliament (art. 4). It was held every week for four months a year, for a term of two years. The three-hour lectures addressed sociological, legal, and management subjects (with particular attention to the management of associations). More precisely, the lessons were aimed at furthering the study and analysis of a) the rights and duties of citizenship, b) religious freedom and discrimination,


c) the meaning of secularism in the Constitution and the Catalonian Statute of Autonomy, d) models of cooperation at the local level between public authorities and religious communities, e) the legal status of religious communities and local regulations concerning municipal activities of importance to religious pluralism, f) places of worship, cemeteries, funeral rites and the right to translate the remains of the deceased, religious services in the local area, religious holidays and days off, celebration in public of acts of worship and respect for public order, religious assistance in public centers, hospitals, sanatoriums, and prisons, local tax systems affecting places of worship, ethnic-religious trade and the use of halal and kosher trademarks, religious education and respect of religious precepts regarding food in school cafeterias.

Students could receive scholarships covering the cost of the course and, upon completion, they were awarded a certificate of attendance. The course had a limited number (twelve spaces for the first cycle) and could be attended only by students indicated of the confessions that were listed in the registry of religious entities. The course was under the control of a technical committee composed of representatives of the province and the university.

A completely different experience has been ongoing for some years in Belgium, at the Catholic University of Louvain-la-Neuve. In collaboration with two other universities and with the support of the Ministry for Higher Education in the French Community of Belgium, the University of Louvain has created a “continuing education program in religious studies: Islam,” that offers “the teaching of a renewed Islam, starting from the problems that concern the European Muslims. Designed to respect the Muslim faith, yet taught in a critical spirit,” the course aims to “achieve complementarity between religious sciences and humanities, from a perspective that compares Islam to other religions and philosophies.” The program is open to

any Muslim and non-Muslims interested in Islam as a religious and cultural reality and as a civilization which fits in contemporary societies, Belgium and Europe in particular. More specifically, this course may be of interest to professionals working in the field of Muslim institutions and associations, teachers and professionals in social work, health or other public sectors.

The course is divided into three modules covering the following subjects: a) Islamic sciences: sciences of the Qur’an and Hadith, exegesis, dogmas and ethics of Islam, epistemology of schools of thought, normative rules (fiqh) in Islam; b) historical, legal, and social sciences: history of the schools of Islamic thought, Islamic civilization, human and religious sciences, law and religion in Europe, comparative linguistics, translation, Islamic art, religious organizations; and c) comparative and interdisciplinary analysis: history of religions and comparative religion. The educational program also includes elective courses dedicated to the teaching of religion, the diversity of the Arab and Muslim world, and Islamic sciences. The teaching of Islamic sciences is usually offered by Muslim teachers


equipped with the necessary qualifications to teach in universities in Belgium. Classes are held every Saturday between December and June each year and end with a proof that enables successful students to receive a university certificate, as provided by art. 20 of Decree March 31, 2004 on higher education. The courses are directed by a committee composed of members of the academic institutions involved in their organization.

A third initiative took shape in Paris at the Institut Catholique. The Faculty of Social Sciences and Economics offers a university degree, entitled “Interculturalism, secularism and religion.” This training program, lasting one year (210 hours per year), is divided into four clusters that offer the following courses: a) general knowledge cluster: history of the three revolutionary republican ideals (liberty, equality, fraternity), institutions and political life of the French Republic and rhetoric (oral and written expression); b) legal cluster: the law of religions, introduction to law and legal institutions, human rights, economics and management of religious affairs; c) religious culture cluster: religion, secularism, secularization, openness to religious worlds, Muslim practices in daily life and religion and philosophy; d) intercultural cluster: intercultural practices, public policies of integration and intercultural mediation. The program, which is supported by the Ministry of Immigration, Integration, National Identity and Mutually-Supportive Development and the Ministry of the Interior, offers the chance to compete for the posts of chaplain provided by art. 2 of the Act of 1905. The program is free of charge and registration is open to students holding a baccalaureate degree.

In Amsterdam, the Inholland Hogeschool (an institute of higher education focused on professional preparation) opened a four-year course of training of imams in 2006 as part of the broader program called “religion and pastoral ministry.” The program, funded by the Ministry of Integration and done pursuant to an agreement between the Inholland Hogeschool and some Muslim organizations (also represented in the body of the course directors), includes lessons in theology, liturgy, Arabic, sociology of religion and history of religions, and also provides for the conduct of activities in mosques, prisons and hospitals. At the end of the first year, students can choose from different specializations and opt to become imams, Muslim spiritual advisers, or professionals in the educational sector. After completing this course, students receive a diploma certifying the qualification of imam, but that does not mean that a mosque is required to hire persons licensed by Inholland Hogeschool.

The examination of these four experiences confirms that in countries where there are no theological faculties in state universities (as in Spain and France), the training of imams is conceived in secular terms as a form of citizenship education; in countries where the faculties of theology are included in the state education system (as in Belgium and The Netherlands), the training tends to be conceived in broader terms that encompass both religious and secular teachings. The project to create a faculty of Muslim theology in Strasbourg, under discussion for some years now, confirms this interpretation. Alsace, in fact, though belonging to France, for


historical reasons follows the German model and therefore designed the training of imams in both religious and secular terms.

The European experiences described in this chapter highlight three models for the training of imams: first, the professional course (Amsterdam), designed to prepare students for specific professions (cultural mediator, spiritual counselor, imam, and so on); second, the Faculty of Theology (Louvain-la-Neuve), concerned to provide a preparation at university level, with a critical (although sympathetic) approach to the Islamic sciences and with a desire to contribute to the reformulation of the categories on which they are based; and finally, the course of education for citizenship (Barcelona), where students are given the knowledge required to facilitate the understanding of European society and to foster integration within it.

A Glance towards Italy

In Italy, the issue of the training of imams was neglected for a long time. Diversity of opinion inside the government coalitions that have succeeded prevented not only the implementation but also the design of a coherent stance on Islamic politics. The unresolved questions of Muslim mosques and representative institutions are proof. On the Muslim side there have been some efforts to train imams and leaders of their communities, but public institutions, for reasons related to the local and confessional nature of these initiatives, have preferred to avoid direct involvement. This stalemate came to an end last year when a consortium of universities (Alessandria, Como, State University of Milan, Catholic University of Milan, and Padua) concluded an agreement with the Ministry of the Interior, which sponsored a course for the training of Muslim religious leaders and promised to take into account the participation in this training in its relation with the Muslim ministers of religion (that is, when an imam is licensed by the Ministry to conduct a religious marriage with civil effects or to enter prisons to offer spiritual assistance). The training offered by this consortium of universities took largely into account the experience of other European countries.

These experiences, in fact, contain some interesting hints. The first concerns the architecture of the training projects. It is based on a separation of powers, which is found in all the initiatives undertaken within European countries, between universities and state institutions: everywhere the training programs are run by universities, with the support (including financial) of government institutions. This choice has a double advantage because it expresses the state’s interest for the integration of immigrant communities without state involvement in the religious training of their staff. In Italy the universities provided the staffs with the skills needed to carry out scientific and educational training courses and the Ministry of the Interior offered its sponsorship to this initiative, while a bank granted the necessary economic support.

The second lesson concerns the type of training which could be offered in Italy. In this country, where there are no faculties of theology in public universities, it


is hard to think of a training program that would include confessional teaching, as already happens in Louvain and is planned to take place in Strasbourg. The universities do not have the expertise to prepare, and, on the basis of the Italian legal system, the state institutions do not have the power to provide a strictly religious curriculum, including theology, liturgy, pastoral care and other courses of this type. These difficulties would in part occur even if the Dutch model, which focuses on vocational training, were to be adopted, as it is impossible to prepare an imam without going in detail into the contents of the Islamic sciences (as indeed happens in Amsterdam). In addition, professional opportunities for training of this type are much more limited in Italy than in countries with an old Muslim presence like the Netherlands. Excluding, therefore, the paths of the “School of Islamic theology” and of the professional courses, the attention was focused on the experiences of Paris and Barcelona, directed in a different form to provide knowledge and notions of a secular nature that will help imams and religious leaders of other communities to better understand the cultural and historical heritage of the French and Spanish legal order.

From this perspective, a training program structured around four pillars was developed: First, an ethical and philosophical pillar on issues of democracy, pluralism, and secularism, namely the political and legal foundations of the Italian State; another historic and cultural pillar, aimed at providing basic knowledge of Italian and European history; the third with a sociological content, where the transformations of the Italian religious landscape are explained, highlighting the new pluralism that characterizes it and the problems of coexistence between different religions in public space, and the last pillar with a legal subject matter focused on the rights of religious freedom and equality and on the practical implications that these rights have on the building of places of worship, religious education, family law and so on. These issues were addressed not only from a theoretical perspective, but also through the contribution of lawyers, civil servants, school teachers, and medical doctors, that is, professionals who could bring direct knowledge of the practical problems encountered in their fieldwork.

Finally, the foreign experiences have shown the helpfulness of the involvement of religious communities in the preparation of the training program—not to define the content of the courses, but to ensure that they respond in the best way to their needs. The model of Barcelona, based on a double agreement (first between the university and the Muslim communities and then between the university and the municipality), illustrates the point. However, limiting the availability of the course only to persons designated by the religious communities, as has been done in Barcelona, has been deemed to go too far (and the Italian course did not follow the Spanish model on this point).

The Italian experience has had some success: Twenty-eight students—leaders of Islamic centers, cultural mediators, teachers, and leaders of immigrant organizations—have actively participated in five residential weekends, where some of the issues of greatest interest for the Italian Muslim communities were discussed. At the end of the course three documents containing concrete proposals


on the subject of places of worship, religious ministers and religious associations were prepared and delivered to the representatives of the Ministry of the Interior. The course will be repeated next year and extended to new issues, such as family law, gender relations and interreligious dialogue.

In conclusion, this course proved that the skills, experience, and knowledge necessary to start a project for training the leaders of Muslim religious communities are available. It remains to be seen whether politics will permit making good use of them or whether, once again, the strategy of postponement will be preferred.

Chapter 7

Secularism, Schools and Religious Affiliation: For a Demanding Account of

Law no. 2004-228 of March 15, 2004Alain Garay

Some bills are so passionately debated, discussed, and contested, and their contextual facts are such, that they shape in a decisive way the interpretation and effectiveness of the law that is finally passed. The measures of law “no. 2004-228 of March 15, 2004 restricting, in application of the principle of secularism, the wearing of symbols and dress manifesting a religious affiliation in public elementary schools, collèges and lycées,”1 have been affected by these outside influences and are, moreover, emblematic of the French Republic. “France” as a nation virtually went up in flames over the issue of religious dress right in front of an international audience, who watched the spectacle dumbfounded. Everyone wondered what could have possibly motivated the actors in this national political debate. Intellectuals took turns speaking out in public, some with scientific explanations for justifying the recourse to law to regulate the matter.2 Journalists were restless as well, over-informing and over-consulting the French (for example, opinion polls such as the CSA for Le Monde and La Vie on February 5, 2004, an electronic forum via the internet site of the Assemblée Nationale). Many citizens wrote editorial and opinion columns and participated in public demonstrations in the streets. In Iraq, a hostage was taken whose release was conditioned on the

1 Journal Officiel de la République Française (hereafter J.O.R.F.), no. 65, 17 March 2004, 5190.

2 A plethora of intellectuals made interventions, either by way of press articles or interviews, in the name of good sense and without fear of ignoring the applicable legal norms, each one letting fly from a given disciplinary stance, be it philosophical, sociological, or anthropological, yet rarely with reference to applicable, proven or effective law. We will nevertheless cite the major contributions of R. Debray. Ce que nous voile le voile—La République et le sacré. Paris: Gallimard, 2004. There is much to be gained by reading this particular work, the author having served, notably, on the Presidential Commission (the “Stasi” Commission, named after its presiding member, Bernard Stasi, a Parliamentary Commissioner for the Republic). See also D. Soulez-Larivière. Voile, liberté et ordre public—quinze années de débat en quarante rebonds. Paris: Editions de l’Aube, 2004.


abrogation of the law in question. The French Council on Muslim Worship was created. These are just a few examples of actions taken to protest the new law.

This fit of passion and tension centered principally on four lines of the text, and the profusion of debate suggested there would be legal repercussions in several areas.3 Let it be judged for itself: in the most transparent and concise terms, Article 1 of the law enacts Article L.141-5-1, which

is added to the education code … and is formulated thus: In public elementary schools, collèges and lycées, the wearing of symbols or dress by means of which students outwardly display a religious affiliation (manifestent ostensiblement une appartenance religieuse) is prohibited. Let it be reiterated that internal regulations require that the initiation of a disciplinary procedure is to be preceded by “dialogue with the student.”4

This measure does not apply to public spaces or private schools under contract (with legal recognition of their “own character,” article L.442-1 of the education code), nor to higher public or private educational institutions, or to teachers subject to the obligations of neutrality and detachment.

The political and parliamentary debate and the level of presidential activism were rich and included many voices. The debate started with the report by Député François Baroin (a member of the Union pour un Mouvement Populaire party), and was followed by a parliamentary fact-finding mission presided by the President of the Assemblée Nationale;5 the presidential activism consisted of a commission whose members were charged by the President of the Republic with “reflecting on the application of the principle of secularism in the Republic,” including efforts marked by 140 public and televised hearings, and a presidential address pronounced at the Élysée Palace on December 17, 2003, “relative to respect for the

3 See, for example, the title and content of the article La laïcité, jusque dans l’assiette? (Too Much Talk of Secularism?). La Gazette, 15 December 2003, 38, an issue dedicated to a special report on Laïcité au quotidien: la parole aux agents territoriaux (Secularism in Everyday Life: Territorial Agents Speak Out), which offers an account of the state of administrative directives with regards to school meals. See also the heated debates on secularism in public services, hospitals, prisons/penitentiaries, the military, and so forth, an entire set of situations in which people got intensely involved, in the process confusing and amalgamating, pêle-mêle, the rights and obligations of agents, users, and structures.

4 J.O.R.F. no. 65 of 17 March 2004, 5190 ff. The law is applicable on the islands of Wallis and Fatuna, in the territorial areas of Mayotte and in New Caledonia (in the latter, the law applies in public secondary education falling under the authority of the State by virtue of law no. 99-209 of March 19, 1999 relative to New Caledonia).

5 Read his Report no. 1275, registered December 4, 2003 with the Presidency of the Assemblée Nationale (Mission d’information sur la question du port des signes religieux à l’école): counting only what occurred in the presence of elected officials of the Assemblée Nationale, this amounted to nothing less than 120 hearings of persons of the most diverse origins and religious backgrounds (6 volumes) and 2 volumes consecrated to the Report itself.

Secularism, Schools and Religious Affiliation 119

principle of secularism in the Republic.”6 In response, many people mobilized, and the nation, against excessive international involvement, held its breath as French journalists were taken hostage, their release seemingly conditioned upon the abrogation of the law in question, and a public announcement was made by Sikh religious leaders from the Ministry of Foreign Affairs on an official visit to India, in reaction to this “tumult surrounding secularism.”7 The saturation regarding the matter, added to the hard-line parliamentary attitude, confirmed the adage “too much law kills the law” (trop de loi, tue la loi). The political and parliamentary discussion and its legislative translation raised many questions abroad8 and triggered an avalanche of misunderstandings that were at best critical, at worst corrosive to “France, country of human rights.” On the international scene, this tumult resulted in misunderstandings drawn from a real deficit of explanation, whether unintentional or voluntary, and the situation was exploited to provide a basis for an organized attack against secularism, which has been a constitutional principle in France since at least 1946.

On the national scene, the Minister of Education, after drafting, announcing and withdrawing several successive comments, pushed to clarify the March 15, 2004 law. The law obviously did not suffice by itself, and earlier ministerial texts had to be repealed. Thus, the circular MENGO401138C of May 18, 2004 from the Ministry of National Education, relative to the implementation of the March 15, 2004 law, specified the law’s modes of enforcement.9 It abrogated and replaced a series of circulars, including that of December 12, 1989 which had to do with secularism, students wearing religious symbols, and the nature of the required instructions regarding them; it also replaced the October 26, 1993 circular on respect for secularism, and that of September 20, 1994 relative to wearing ostentatious symbols in schools.

Legal studies on the matter quickly accrued, as evidenced by a significant scholarly mobilization: Within the two years following March 15, 2004, more than a dozen judicial articles appeared (not including the articles, notes and commentaries

6 Let us also add the work of the National Consultative Commission on Human Rights, left completely ignored, which rejected recourse to legislation, judging it to be untimely (the interim report was entitled La laïcité aujourd’hui, October 2, 2004).

7 J. Robert. Cacophonie. Revue du droit public, 3, 2004, 309; A. Garay. and E. Tawil. Tumulte autour de la laïcité. Paris: Dalloz, 2004, 225.

8 See the 2004 annual report of the United States Commission on International Religious Freedom (www.uscirf.gov). For a comparative study of the cultural and social references, see B. Chélini-Pont and J. Gunn. Dieu en France et aux États-Unis: Quand les Mythes Font la Loi. Paris: Berg International, 2005.

9 J.O.R.F. May 22, 2004, 9033; G. Koubi. L’interprétation administrative de la loi du 15 mars 2004 sur le port des signes religieux dans les établissements scolaires. Territorial Administrations and Collectivities, 25, 2004, 839; Dord, O. Laïcité à l’école: l’obscure clarté de la circulaire “Fillon” du 18 mai 2004. Paris, 2004, 1523.


on the doctrine published on the subject prior to 200410). The affair was thought to have been closed, following opinions rendered by the Conseil d’Etat, circulars from Education ministers, and subsequent case decisions. But a certain “excess of expertise” in various fields, political, media and technical,11 reincarnated the apparent societal relief and relative stability of many conflicted school situations which involved religious symbols or attire. An initial assessment, even if only a provisional one, can be made now that the Ministry of Education itself, on January 20, 2005, released a public account of the current state of affairs.12 Article 4 of March 15, 2004 law stipulates “an evaluation one year after its application,” meaning at the beginning of the academic year subsequent to 2005–2006 (September 2006, because the date at which the law was supposed to become effective had been designated as the beginning of the academic year following the law’s passage, meaning 2005). The temptation is great today to replay the socio-genesis of this controversial law of March 15, 2004 (which constitutes the first part of the present analysis), while the elaboration of a provisional account calls for factual answers of a jurisprudential and statistical nature (the second part of

10 P. Malaurie. Laïcité, voile islamique et réforme législative—Loi du 15 mars 2004, JCP G, March 31, 2004, 607 ; C. Durand-Prinborgne. La loi sur la laïcité, une volonté politique au centre de débats de société. AJDA, April 5, 2004, 704; E. Putman, La loi sur les signes religieux à l’école a été promulguée. Revue Juridique Personne et Famille. June 2004, no. 6, 10; G. Koubi. Une précision tenue pour insigne. JCP A, 2004, I 1213, Vers une déconstruction du principe de laïcité, Revue du droit public, 2004, 325; Véronique Fabre-Alibert, La loi française du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics: vers un pacte social laïque ?, RTDH, July 1, 2004, no. 59, 575 ff.; F. Bussy. Le débat sur la laïcité et la loi. Recueil Dalloz, October 21, 2004, 2666; R. Libchater. A la croisée des interprétations : le voile et la loi, RTD civ., 2004, 161; P. Jan. La laïcité à l’école: le droit national contre le “droit local”. La loi plutôt que la négociation. Question de valeur, Revue du droit public, 2004, 301; J. Flauss. Les signes religieux, in La liberté religieuse et la Convention européenne des droits de l’homme 58, edited by T. Massis and C. Pettiti. Brussels: Nemesis-Bruylant, 2004; A. Viola. Laïcité et école publique: la nécessaire clarification. Paris: Petites Affiches, 2004, 75, 3; P. Blondel. Quelle jurisprudence pour la nouvelle loi sur les signes religieux, in La Laïcité 48, 2004, 197–219.

11 Sensing that it was a “powder-keg” issue, the debate surrounding the “application of secularism” was widely covered, presented, drawn out, nourished and evoked, by journalists, the press, in print or on the Internet, in their own ways and according to their own tempo and political agendas. Nationally and internationally, in the middle of the “war in Iraq,” it was agitated and carried out in factual, narrative, polemical and political terms. A journalistic study remains to be undertaken.

12 See also the study by the Collectif Contre l’Islamophobie en France, distributed via the internet in March 2005 and entitled Le bilan de la loi du 15 mars 2004 et de ses effets pervers. Available at: www.islamophobie.net (accessed 18 July 2011). This militant, activist text contains statistical information that confirms what was announced publicly January 20, 2005 by the Ministry of Education.


my analysis). The essential is still to come, since the construction of this text was tumultuous and its effects remain uncertain, in perfect keeping with the French tradition of disputatio. The legislative ensemble, including the actual text and the preparatory work leading up to it, requires a rigorous accounting in terms of the law’s application, to be obtained from a qualitative and quantitative perspective, within the purview of the objectives and initial problems pursued by the law which were so vast and ambitious.

The Difficult Evaluation of a Legal Ban Subject to Constraints on the Meaning of “Secularism”

From the beginning, the legislative debate weighed the possibility of allowing school authorities to interpret the law using their wide regulatory margin. I will address the development of this debate.

The Contrasting Effects of Intellectual and Political Liberties, between Democratic Debates and Approximations

The opportunity to legislate on this issue, with the intent to “restrict” the wearing of certain symbols or dress at school, was called into question by the principles of individual liberties. During the period 2003–2004, and at the center of the debate, certain intellectuals who misunderstood previous regulatory texts and judicial precedents which had been gradually constructed by administrative courts of law, including the Conseil d’Etat, made a number of incorrect statements. A conspicuous lack of understanding (inculture)13 regarding secularism dominated the discussion—for example, by unknowingly requiring that students themselves be “secular,” when, in fact, in legal terms, only the Republic is “secular.” The same goes for the lack of precise knowledge regarding school disciplinary regulations or the modes of enforcement put into place by school officials before the March 15, 2004 law.14 The law’s lack of clarity, fostered by positions taken by teachers, provoked demonstrations arguing for the necessity of turning to the law as the legal imperative, the supreme norm, a social index and guarantee of legitimate restrictions, in limiting symbols and dress of students which openly manifest religious affiliation. Semantic debates agitated many minds and monopolized the time of ministers and members of parliament as to the nature of the symbols (dress or other, open, ostentatious, visible, and so forth) and its effects, and as to the dimensions, sizes, and compositions of the very object of the legislation, all of

13 For an opposing view, see E. Poulat. Pour une véritable culture laïque. Annual Report of the Conseil d’Etat, 2004.

14 It is worth examining the manual entitled Droit de la vie scolaire (Laws concerning school life), Dalloz, 2003, to see the technicality of legal questions of a disciplinary nature in schools.


which led to an objectification (choséification) of religious affiliation, reducing it to what symbol or attire is worn. Even the question of the forms of expression or disclosure of religious affiliation at school, and in “public space,” caused several doctrinal and ideological quarrels regarding the law’s legitimacy. Limited to the intellectual, parliamentary and political debates, the reach of these discussions is evocative and telling. The text of the law voted for and passed is in the form of an imperative order. It is therefore pointless to eternally debate the purview of such legislation when it has been voted on, because it requires rather a technical analysis of its consequences and effects. Starting in 2003, and in the name of defending “religious freedom” and “freedom from religion,” a certain discourse, notably from governments, associations and militant groups, vainly tried to influence the political will, and then the government and parliament’s decision. Thus, the federal government of the United States became mobilized.15

At the time, the International Helsinki Federation for Human Rights stated that it

is concerned that a French presidential commission proposal to enact a law banning religious symbols in schools and other public institutions would violate France’s international commitments to protect freedom of religion … The IHF believes that such a ban would bring the French state into conflict with international human rights standards on freedom of religion because wearing religious clothing can be an inherent part of expressing one’s faith. It is not at the discretion of a state to determine which expressions are legitimate as long as they do not violate other people’s basic human rights or do not endanger public safety, health, or morals, as defined by international law. … Adopting legislation to ban headscarves in public institutions would not be an adequate measure to promote integration and to combat Islamic militancy but might, indeed, counter-productively result in the increased alienation and marginalization of Muslims living in France.16

By confusing the role and constitutional functions of the state and of Parliament, the latter being the sole decision-making body in France for measures impacting public liberties (Article 34 of the Constitution of the Fifth Republic17), the IHF

15 See the concerns of this State, dating 6 October 2004, formulated in writing in Warsaw during the annual meeting organized by the OSCE on freedom of religion; the International Helsinki Federation of Human Rights, in its communiqué A French Ban on Religious Symbols Would Violate International Protections of Freedom of Religion. Vienna, Austria, 17 December 2003.

16 French Ban on Religious Symbols Would Violate International Protections of Freedom of Religion, Zenit, Feb. 11, 2004, available at http://www.zenit.org/article-5463?l=german (accessed March 13, 2012).

17 The confusion is typical of organizations established to defend human rights, which have a tendency to describe a situation in reference to a country (pays), taken in a globalizing sense (“France,” for example), or in reference only to a State (“the French State”), without


thus stigmatized the “intensity (with which) the French state now promotes secularism (which) appears to amount to advocacy of a one world-view and so seems to contradict the principle of neutrality to which the state proclaims to be committed.”18

Is Students’ Freedom of Conscience Called into Question by this Legal Ban?

Some consider the ban on wearing symbols or dress by which students openly display religious affiliation an intrinsic attack on individual freedom of conscience, even religious conscience. This would involve less an attack on freedom of religion than that of one’s conscience, an element of personality within the sphere of the individual. Indeed, whereas since 1789, “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law” (Article 10 of the Declaration of the Rights of Man and the Citizen), the Constitutional Council, in its decision no. 77–87 (November 23, 1977), upheld that freedom of conscience is a fundamental principle recognized by the laws of the Republic, thereby conferring upon it the guarantee of constitutional protection. At the time of the first “Islamic headscarf affair” in 1989, which involved wearing of religious symbols at school, administrative jurisprudence had already applied this principle.19 Retaining the criteria it had drawn from its opinion of November 27, 1899,20 the Conseil d’Etat, in the course of a case, had attempted to reconcile the freedoms thus claimed:

The principles of Article 10 of the Declaration of the Rights of Man and the Citizen and the principles of secularism and neutrality within State education and public services, impose the requirement that instruction be dispensed with respect, on the one hand, for this neutrality by programs and teachers, and, on the other, for the freedom of conscience of students … ; that freedom thus granted to students comprises for them the right to express and to display their religious beliefs within schools, with respect for pluralism and others’ freedom … ; that within schools students wearing symbols by which they intend to display a religious affiliation is not, in and of itself, incompatible with the

taking into consideration institutional distinctions or the systematic description between the state of public opinion, the nature and level of public or parliamentary debate, and the intervention of parliamentary or governmental structures (a fact-finding or investigative mission or commission).

18 Zenit (2004).19 Conseil d’Etat, November 2, 1992, Kherouaa et a, JCP 1993, II, 21998; March 14,

1994, Yilmaz, LPA n°26, 1995, note Flauss, 23–8 ; November 29, 1996, Ligue islamique du Nord, JCP 1997, II, 22808, note B. Seiller ; Trib. adm. Orléans, May 3, 1994, M. et Mme Onder, req. n°93-2186 et 93-2187; Trib. adm. Lyon, May 10, 1994, M. et Mme Aoukili, LPA n°143, 6, concl. A. Bézard.

20 AJDA 1990, 39, note J.-P. C.


secular principle, to the extent that it constitutes the free exercise of freedom of expression and of religious display (Cons. d’Etat, Min. de l’éducation nationale c/ Outamchart, mai 20, 1996. Dans le même sens, Cons. d’Etat, mars 10, 1995, M. et Mme Aoukili ; oct. 9, 1996, Unal ; mai 20, 1996, Ali).

Thus, on the level of principles, there should be no doubt that respect for the freedom of conscience of students includes protection for expressing or displaying one’s religious beliefs even within lay public schools. The Conseil d’Etat admitted restrictions to these rights, constructed as “recognized freedoms,” by judging that:

this freedom does not allow students to display signs of religious affiliation which, par their nature, par the conditions in which they would be worn individually or collectively, or by ostentatious or protestatory usage, would constitute an act of pressure, provocation, proselytizing or propaganda, would injure the dignity or liberty of a student or other members of the education community, would compromise their health or their security, would disturb the proper functioning of educational activities and the role of teaching, or in the end would disturb the peace and order in the school or the normal functioning of public services.

In order to limit the principle of students’ freedom of conscience, the Conseil d’Etat had thus drawn up, within strict material and objective limits, a series of criteria that were sufficiently precise to be understood by school officials. But it did so in vain, if one judges by the political will to crystallize and legalize these legal criteria authorizing an attack on a fundamental liberty, the students’ freedom of conscience. However, since 1992 the position of the Conseil d’Etat and legislators has not been inherently contrary to that freedom. In the case of the legislation of March 15, 2004, students remain entirely free to make known their religious affiliation in educational institutions and to wear symbols and dress that display such an affiliation. What the law prohibits is the act of wearing such things with the sole purpose of displaying such affiliation ostentatiously. The principle of freedom remains the applicable rule, and prohibition the marginal exception.

In reality, the March 15, 2004 law radically modifies, at least in part, applicable law, including the administrative doctrine and legal precedence of the Conseil d’Etat, from the moment the legal prohibition against abusing religious affiliation at school becomes imperative. This prohibition, in the case of the law’s text, is not tied to demonstrating the provocative, proselytizing, or propagandistic character of the sign or attire in themselves, or their contrariness to public order. The practical discussion in schools, we can imagine, is far from over. And in France the Republican tradition has seen such intrusions of “politics” into “religion” before. Thus, Emile Poulat (Le Monde, December 13, 2003) recalled that Jean Zay, Minister of Education from 1936 to 1939, distributed two circulars (December 31, 1936 and May 15, 1937) in which he drew the attention of school directors to the necessity of keeping public education at all levels free from political and confessional propaganda. Public education is secular. No form of proselytizing


may be allowed in schools. Some people became concerned about the effects and consequences of the legal prohibition from the standpoint of a prohibitive scholarly secularism; such was the case for the AIDLR (National Office of the International Association for the Defense of Religious Liberty).21 In a note entitled La chasse au voile (The Veil Hunt), Jean-Paul Barquon, the AIDLR’s national secretary, correctly points out that the circular for applying the March 15, 2004 law (infra) also imposes obligations on students which are not reducible to the question of symbols of religious affiliation.22 Further elaboration on the text of the March 15 law points out that

the religious convictions of students do not give them the right to refuse a teaching … no question is excluded a priori from scientific and pedagogical questioning. Nor can religious convictions refuse the obligations for rigor, attendance or modalities of examination … Religious convictions cannot justify a selective absenteeism for example in physical and athletic education or the life or geological sciences … Authorization for absences must be given to students for major religious celebrations which do not coincide with a holiday and whose dates are detailed each year in a public notice in the Official Bulletin of National Education. …

Positive Normative Law, which is Complex and Ambiguous, Legalizes the Wide Margin of Interpretation for School Officials

A Prohibitive Law on the Margins that does not Resolve the Central Problem of How to Identify “Ostensible” Acts or the Formidable Question of How to Treat Religious Proselytizing which is Forbidden at School

The prohibition against the margins by a major political act—targeting only those marks that ostensibly display a religious affiliation, a gesture which could be defined, with some deciphering, as a form of religious proselytizing23—was conceived to help preserve a neutral and protected educational space. What were

21 The international NGO, having a consultative status with the UN and the Council of Europe, and whose honorary president is Mme Mary Robinson, a former High Commissioner for UN Human Rights, publishes the journal Conscience et Liberté (e-mail: [email protected]) in Berne, Switzerland.

22 The author, who claims not to be “under any illusions,” points out that “wearing religious signs and dress continues to divide the French, regardless of the legal decision upheld. Secularism sought to be tolerant from the beginning. Returning to the old days of anticlericalism through secularism would distort the values introduced by Jules Ferry (in the 1880s).”

23 A. Garay. Liberté religieuse et prosélytisme religieux: l’expérience européenne in Revue Trimestrielle des Droits de l’Homme, 1994, 7.


the ingredients of this political evolution, embodied by a restrictive law and undertaken in the name of preserving social relations and the universality of “the secular Republic”? A wide variety of reasons, some political, others legal, were advanced to justify creating this legislation. The first set of reasons had to do with the “defense of secularism,” a “cornerstone of the Republic,” as stated by President Jacques Chirac, included an undefined legal text (the Stasi Commission Report), and expressed concerns for the protection of young women unjustly beholden to injunctions, some religious, imposed by third parties (parents, brothers, religious leaders, militant members, and so forth). The second set of reasons included: 1) an assertion that the law was necessary because only a legal mechanism is liable to influence limits to the exercise of rights and freedoms,24 2) a response to the confusion of school directors and teachers, who claim they were confronted with a “multiplication” of controversial situations (infra), and 3) as a clarification of the state of applicable disciplinary law and to reassure interested parties worried about the perceived “legal uncertainty” (flou juridique) and the refusal to admit individual applications, on a case by case basis, regarding the scope of the regulations in force, including the ministerial circular of September 20, 1994 relative to wearing ostentatious symbols in educational institutions. In reality, and contrary to the false opinion that circulated widely, especially abroad, the Gordian knot of the desired changes in schools was not the banishment of comportment or symbols or attire of a religious nature. It primarily had to do with identifying and then prohibiting acts that were militant or that pressured others in the name of a religious affiliation expressed through symbols or dress. Having to determine the various modes of these symbols is a central issue for school authorities, because it became their obligation to carry out the measures. For Claude Durand-Prinborgne (cited above, pp. 708 and 709)

this comes back to the assessment of a behavior … the very kind of assessment that school directors didn’t want to have to perform any more … The law’s measures first posit a ban but then entrust to someone other than the legislator the care of setting the limits of recognized freedoms.

As a result, school authorities must, on a case by case basis, initiate an inquiry into the student’s intention, decide whether a religious intention has been displayed, and if so, the manner in which it is expressed. Authorities are also required legally, it seems to us, to fully assume the consequences of their decisions while remaining committed to the principle of neutrality, which is guaranteed by the restriction from making reports likely to result in differences in treatment, if not discriminatory

24 For dean Louis Favoreu (Une loi! Le respect de la Constitution l’exige. Le Monde, December 6, 2003), respect for the Constitution required the use of law. Others explained that the Constitutional Council, through an appeal regarding the law voted upon but not yet implemented, could have judged that it did not conform to law. J. Robert (2004), 309. The Constitutional Council is subject to no appeal.


acts that are punishable by the penal code. The difficulty in determining religious adherence is also great, since, strictly from a constitutional standpoint, the Republic does not recognize any. Does one have to ask a student about her religious affiliation? Is she obligated to answer the question, if it is asked by teachers or school directors, who in the exercise of their functions are held to a strict neutrality that limits them from knowing what her religion is? Can school authorities demand such a declaration or avowal, or must they alone draw inferences according to which symbols or dress are proof of 1) religious affiliation, and 2) its abuse at school? And if so, in what manner should they do this? From a legal examination of the applicable law, does forbidding a given way of wearing symbols and attire not represent an attack on the freedom to express one’s religion, since no motive to go against the public order can be proven by this act? What about symbols and dress through which students would not be outwardly expressing a “religious affiliation,” but rather a simple reference to a religious tradition or a mystical conception, since the law is silent regarding the existence of different modes of religious identity? The law of March 15, 2004, subject to the fitness of legal practitioners, is rich in legal subtleties that stir the technical imagination of legal assistance and defense professionals; for example, the activities of the Collectif Contre l’Islamophobie en France (The Collective Against Islamophobia in France), which staffs a legal and telephone service for students who believe themselves “victims,” real or potential, of the law of March 15, 2004.

The law does not at all question wearing religious symbols and dress at school, but only the abuse of this freedom with reference to a behavior that is deemed by school authorities to be contrary to the law. The student, for his or her part, is left to confront the subtleties of the terminology used by legislators, a terminology imprecise and confusing in its reference to the adverb “outwardly” or “openly” (ostensiblement). The governmental and parliamentary discussion had dealt with semantic considerations by refusing to keep the terms “ostentatious,” “discreet,” “visible,” for reasons clearly indicated as incompatible with guarantees of Article 9 of the European Convention on Human Rights, and so forth. This gave birth to a text at once normative and eminently open to interpretation, which is terribly problematic, leaving “republican mists” that the “obscure clarity of the Fillon circular of May 18, 2004” was unable to clear away.

Formally, the law first posits a negative and prohibitive principle, the ban, then a positive framework of obligation, and finally the procedural guarantee of dialogue. In case the procedure of dialoguing with the student fails, the law provides for the implementation of a disciplinary action in conformity with the measures of the education code (this procedure can lead to the sanctioning of the violation). Here also, for some authors, “Educational institutions are asked to regulate themselves on the basis of the law, which is precisely what they were seeking to avoid.” Paradoxically, this twofold measure conveys the firm desire to ensure a ban and, at the same time, to arrive at an amicable solution through mediation. In this case, the ministerial circular attempts to introduce important clarifications by completing the glaring insufficiencies of the legal text.


Ministerial Clarifications for School Officials, and What the Circular of May 18, 2004 Contributes to the Discussion

“The administrative interpretation of the law of March 15, 2004” added commentaries, explanations and clarifications to the law’s text that confer a fundamental importance upon the minister’s position. This fact is evident in the quasi “assumptive” character of the ministerial text, which borrows from a magisterial system:

The prohibited symbols and dress are those which immediately draw recognition to religious affiliation, such as the Islamic headscarf, whatever the name given for it, the yarmulke, or a cross of visibly excessive size. The law is written in such a manner as to be applied to all religions and to account for the appearance of new symbols, indeed for potential attempts to circumvent the law … The law applies to the interior of schools and (educational) institutions and more generally to all activities falling under the responsibility of institutions and teachers, including those which take place outside school property (school exits, physical education and sporting events, and so forth).

By consecrating the state as the “protector of the individual and collective exercise of freedom of conscience” without other indication, the minister, who represents the state, assumes a position of a “magisterial” nature in the name of an organic legal conception which borrows from religious tradition.25 The ministerial text adds a “veritable typology of permissible and illicit symbols” to the March 15, 2004 law, in the name of the power and authority that the minister exercises over the administration of national education. By judging that “the Islamic headscarf, whatever the name given to it, the yarmulke or a cross of visibly excessive size” are explicitly targeted by the ban, the minister decisively designates the prohibited symbols and dress, something which the law does not elaborate on. (In terms of authorized discreet symbols, Député Clément, in the name of the Assemblée’s legal advisory commission, ventured to inventory a small cross, a medal, a star of David or a Khamsa Hand).26 This extrapolation bearing only upon the minister reveals the compromises and exchanges with representatives of various religions between April 15 and May 18, 2004. Nevertheless, it remains that the law does not go so far as to designate the objects of the ban.27 The circular doesn’t limit itself

25 B. Chélini-Pont. L’origine religieuse de la laïcité française. Revue des Deux Mondes, 2002, 25.

26 The minister could have been thinking of the signs and dress cited during the preparatory parliamentary work leading up to the March 15 law.

27 For the Conseil d’Etat, to which an appeal was referred for exceeding the powers formulated against the May 18, 2004 circular, “the minister clarified the interpretation of this text which he has submitted to his services for adoption … the circular merely reminds or makes explicit the terms of the law of March 15, 2004.” E. Tawil. Union française pour la


to simply reiterating the law, since it proceeds to offer a descriptive interpretation of the prohibition’s object, a method which was explicitly excluded by legislators. Moreover, the circular also reads into the law an additional prohibition, when it decides that “the law prohibits a student from exploiting the religious character he would attach to (the dress or symbols), for example, in order to refuse to comply with the regulations applicable to student dress in the school” (point 2.1 of the circular). The minister prohibits symbols which would acquire religious significance by virtue of the meaning ascribed to it by the student (consider the use of the bandana, a small square scarf or handkerchief of dyed cotton, which constitutes for some “informed” minds a circumvention of the law). For Olivier Dord, by defining in this manner a new category “of religious symbols (considered) ostensibly religious by virtue of their intention,” the circular

forces the (school) administration into the subjective evaluation of the religious convictions of students and of their intentions in the matter of their dress. This represents a perfectly contestable prejudice, on the level of principles as well as before an administrative judge, against the confessional neutrality of the public service rendered by public education and its agents.

Geneviève Koubi (cited above) considers that “the circular confirms the variables of the Conseil d’Etat’s jurisprudence, which the law of March 15, 2004 was intended to rectify. Some consistencies were upheld.” In effect, despite the principle of a ban, the Conseil d’Etat’s line of consultative and jurisprudential conduct will continue to take precedence, confirming in this way the role of the Senate as the guardian of religious (or “parish,” according to Gabriel Le Bras’ expression) life. The circular makes explicit that

in implementing this law, whose objective is to convince students of the importance of respecting secularism, priority must be given to dialogue and teaching. This dialogue is not a negotiation and would not justify any derogation of the law … Dialogue must afford an explanation to the student and to parents that respect for the law is not a rejection of their beliefs … During the dialogue, the institution must be particularly attentive not to offend the religious beliefs of

cohésion nationale. (French union for national cohesion), JCPA, October 8, 2004, 1711; F. Rolin. AJDA 2005, January 10, 2005, 43–5. For the Assemblée, therefore, the minister did not exceed his powers. The objective of the appealing association (www.ufcn.info) was to “work toward national cohesion by defending the republican principles of equality before the law and for access to public employment, respect for beliefs and by participating in the political life of the country, notably by proposing candidates at elections of all levels.” J.O. 21 June 2003. This militant association’s press communiqué dating 20 April 2005, vindictively announces its petition against France before the European Court of Human Rights (2nd Section, no. 12999/05), an action directed against the decision upheld April 8, 2005 by the Conseil d’Etat.


the student or parents. Obviously, the principle of secularism prevents the State or its agents from taking a stance on the interpretation of religious practices or commandments. In the event that a favorable outcome is not obtained through dialogue, a sufficient amount of time must pass in order to guarantee that the disciplinary procedure is used only to sanction a deliberate refusal by the student to comply with the law. If the Disciplinary Council decides to expel the student, the academic authority will be responsible for exploring with the student and his/her parents the conditions under which the student can continue his/her studies.

In compliance with the education code, the dialogue phase, incumbent upon the school director, constitutes a preliminary and obligatory element in any disciplinary procedure which may lead the disciplinary council of the same establishment to pronounce a warning, place blame, or decide on temporary or definitive expulsion (article 3 of law no. 85-924 of August 30, 1985 relative to local public schools, modified by law no. 2000-620 of 5 July 2000). Only the failure of dialogue, accounted for by the minister in the student’s refusal to comply with the law, and not the wearing of prohibited symbols or dress, is liable to engage a sanction of a disciplinary nature. The legal measure having been interpreted thus, the beginning of the 2004 academic year was much anticipated, by partisans and adversaries of the law, and by school authorities, “ready for action” (“sur le pied de guerre”28), mobilized under the authority of the minister, under the interested gaze of specialists and religious leaders.

Evaluation of the Current Situation in the Schools and Cases of Avoidance (contentieux d’évitement) of Administrative Jurisdictions

Even a temporary study of the implementation of the law confirms the persistent presence of disputable cases for which future legal decisions should attenuate the rigidity of prohibition.

The status of the situation in quantitative and qualitative terms confirms the “symbolic” nature of the law of March 15, 2004.

28 By analogy, read the title Des équipes éducatives désarmées (Disarmed Educational Teams), with reference, prior to March 15, 2004, to the application difficulties experienced by school directors (report from senator Jacques Valade called for by the Senate’s Commission on Cultural Affairs, no. 219, 2003–2004). The senators also make mention of the fact that “some veiled students come to the disciplinary council accompanied by a lawyer.”


The Number of Cases of Symbols or Dress Displaying Religious Affiliation and Their Nature, a Case of Approximations and Exaggerations

The initial problem has to do with the methodological difficulty of tracking students who wear dress or symbols of religious affiliation. Objectively, this question is essential; politically, it appears to be of secondary importance. Indeed, on the basis of which level of conflict was it necessary to legislate? Was it necessary to take into account such a level? On June 24, 2003 Dominique Borne, chief inspector of schools in the national education system, was questioned before the Fact-Finding Mission of the Assemblée Nationale regarding the track record of “the headscarf at school” situation. In his response, this high-ranking official declared:

the indications of rising numbers that we have at Education Nationale are not always reliable … it is absolutely impossible to track the number of young women wearing headscarves in our schools. Attempts at this have been made, but the counts and estimations are quite divergent … Even if, here and there, and in very precise locales, an increase in the number of headscarves has been observed, this does not equate in any case to a general increase … With regard to the entirety of our schools, in no case does the number affected go much beyond 5 percent of all the schools, but remains well below the 10 percent bar … This accounting is very difficult to determine: for example, must we include in this number the young woman who removes her headscarf when she enters a classroom? … This is the reason why it seems to me that any number betrays the reality.

(Yvon Robert, chief inspector for the administration of education and research, who was interviewed the same day, said that “what is certain, is that this is a minor problem”.) Before the Parliamentary Mission, Hanifa Cherifi, a representative of the Ministry of National Education and a mediator for schools on problems associated with the headscarf, released his own statistics: “In September 1994, the number of headscarves in schools was estimated at 2000.” However, Nicolas Sarkozy, the Interior Minister, cited numbers from the central office of general statistics dated September 2003, indicating 1123 “cases” in 1994, 446 in 1995 and “on the order of a few hundred today”;29 in other words, numbers “weaker than they ever have been.”30 The extreme variability of the statistics strongly confirms the observation that the perception of the importance of “cases” or “difficulties” was subjective and volatile. Linked with the number of litigations having a jurisdictional character—less than 20 before the Conseil d’Etat since 1992, according to Rémy Schwartz, a petitions attorney at the Conseil and a spokesperson for the Stasi Commission—there can be no doubt that the numerical variability remained secondary, the actual quantitative account being impossible.

29 Liberation, Oct. 8, 2003.30 Le Figaro, Oct. 8, 2003.


After the fact, the statistical accounting of “cases” and “difficulties,” based on an objective criterion (that is, the measures of Article L. 141-5-1 of the education code), was made possible by the very fact of the legal ban, and especially because of the implementation of the obligatory procedure for dialogue with the student. Legal disputes allow us today to make an objective statistical account. The outcome is identical to the numbers at the beginning: to return to the analysis by high-ranking officials cited above, “this problem is rather minor.” This is evidenced by the numbers released publicly by the Minister of Education: “As of October 15, 2004, one month after the return to school, 72 students were not complying with the law of March 15, 2004; 9 disciplinary councils were charged with making rulings and possibly giving disciplinary sanctions, while the rest were still in the process of “legal dialogue.”31

As of March 15, 2005, the Minister of Education had detected 550 cases that found a solution through dialogue, with 47 students, young women, officially sanctioned in the form of expulsion from their schools; moreover, 15 or so students enrolled directly with the National Center for Distance Instruction, without being called before the disciplinary council.32

Beyond this numerical outcome, which is provisional and quantitative, these elements remain to be examined according to scientific methods of evaluation used by parliamentary policies, in the technical sense of the term. Failing that, we run a serious risk of merely imitating, in redundant caricature, the commonplaces of the “Affair of the Islamic Headscarf in France.” Certain networks of associations proactively anticipated the implementation of the law’s evaluation, by prematurely publishing accounts and provisional results, thus adding not only observations and proof but also criticism, the whole thing drawing together contradictory perspectives (cf. the work of the Collectif contre l’Islamophobie en France, cited above. See also the Comité du 15 mars et Liberté, which in March 2005 publicized an inventory numbering 806 “victims” of the law of March 15, 2004, according to Le Monde, March 15, 200533). It is possible to see in this a sign of the “exaggeration of accounts,” over which this particular affair doesn’t hold the monopoly. The recourse to expertise, to take place during the evaluation of the law provided for by Article 4 of the law, seems indispensable. Here, legal science is insufficient, but political science is indispensable. As a response notably to the initial issues that justified the legislation, this evaluation should in fact bear not only on quantitative parameters but also on qualitative ones with some attention to the objects of the legal dialogue phase (the nature of the symbols, the nature of the dress, material conditions of the obvious forms of religious affiliation), the effects of disciplinary procedures (with regard to the student and her conditions for being able to attend school), and of administrative decisions on these matters. Has the radical choice for the legal ban provoked a radicalization of positions? Here, it

31 Le Figaro, Oct. 15, 2004, at 11.32 Le Monde, March 15, 2005, at 9.33 See A. Milcent. Rentrée 2004: une vérité dévoilée. Paris: Gedis Editions, 2005.


would be necessary to have quantitative and qualitative indicators or instruments of measure. What will the Minister of National Education decide? Will legislators intervene, since we’re dealing with a law voted upon at the end of extensive public legislative works? Will independent experts be solicited despite the fact that their numbers and methods can vary according to the logic and affiliation of their observers, high-ranking administrators, militants, or religious activists? The outcome is uncertain, given how big the temptation is, once the laws are voted on, to avoid after the fact confirming their opportunity, verifying their pertinence and evaluating their effective character, a sign of real democratic archaism. Evidently, the legal arguments which excluded recourse to the law were purely and simply ignored (cf. the conclusions cited above by the National Consultative Commission on Human Rights, note 6 infra).

Is the Small Number of Lawsuits a Sign of the Law’s Effectiveness?

The quantitative analysis has remained a prisoner of interpretations, the social perception of the facts in question failing to match their amplitude, denounced by the powerful reinforcement of alarmist political messages. Some today could conclude that the law produced the intended effect by returning to the “secular reason” of the students by producing a clear reduction of “cases” and “difficulties,” and by resolving a “societal problem.” But this is where the legal analysis ends, and political science and parliamentary sociology intervene in evaluating public policies of a legislative nature. Any legislative account calls for instruments of measure, of impact, of evaluation and of pertinence of the laws passed, especially with regards to practical and contentious effects. This requirement is all the more vital in that it impacts behavior of a formative nature linked with the exercise of rights, with regard to sanctioned obligations, within the framework of relations with authority (parents, family, school, state, religion). Moreover, the legislation of March 15, 2004, with its ban and the dialogue that conditions any sanction, and taken against the backdrop of the “Affair of the Islamic Headscarf,” called into question principally the actions of young Muslim women, but also a few young male Sikhs wearing turbans. As a reaction, militant groups actively began to speak out and denounce the very terms of the law, perceived and experienced as a discriminatory instrument. This crystallization of identity has caused a level of mobilization and activism without precedent in France, even as it borrows democratic tools and resources, such as legal expertise, the professionalization of approaches, and public communication. The discussion regarding Islamophobia has focused heavily on the effects of the March 15, 2004 law: “the first test of the law denounces the abusive application of a discriminatory law and the unavoidable misuses that have occurred as a result.” The controversial character of the situations in question is evidence of a conflicted context resulting simultaneously from the legal ban itself, from its exploitation to declaim “victimization,” and, without a doubt, from the failure of school integration understood as student exclusion founded upon the abuse of religiosity. One cannot indeed deny that some students,


alone and in their soul and conscience, decide for strictly religious reasons to wear a religious sign or attire, and that this decision is not made because of pressure or constraint, in the name of an intimate and profoundly personal choice. In this case, the general principle of prohibition, even if marked by the phase of required dialogue, is in itself the cause of moral suffering and an attack on religious feelings. Anticipating such potential misapplication of the law, some high-ranking officials did not hesitate to declare that “without the statistical proof, our feeling is that, in some cases, a ban causes one to wear the headscarf, whereas another attitude makes it disappear.”

The Persistence of Criticism Against the Law and Foreseeable Changes in National and International Disputes

Respect for the Law by Students and School Officials, a Measure Subject to Judicial Regulation

Given the highly individualized nature of school disciplinary measures and the absence of sufficient distance from the problem, is it premature to draw conclusions about the few precedents drawn from administrative jurisdictions in the context of an appeal based on abuse of power, or to call for an injunction (le référé-sauvegarde) to protect a fundamental liberty? We will refrain from drawing indicators and practical perspectives from case law.34 The parameters of the law remain uncertain.35 As part of its 2004 annual report devoted to “Thoughts on secularism” (Réflexions sur la laïcité), the Conseil d’État insistently recalled the importance of logic in peacefully settling lawsuits and tensions. On February 5, 2004, the Conseil concluded this report by underlining that:

in France, the question of secularism has always been a sensitive one, and the current debates are only another example of this. Today, the attention given to this question is heightened, but also confused, by the larger question of social integration and the dangers of communitarianism … Beyond the judicial context, dialogue and teaching are essential for combating tensions and misunderstandings.

Loyal to the consensus of discretion which surrounds their work and honors their public interventions, at no time have the members of the administrative jurisdiction

34 Philippe Blondel, counsel at the Conseil d’État, commenting on jurisdictional oversight, enumerates the difficulties that the law of March 15, 2004 raises with relation to its implementation. See P. Blondel. Quelle jurisprudence pour la nouvelle loi sur les signes religieux, in La Laïcité 48, 2004, 197–219.

35 On this uncertainty and its effects, see Mireille Delmas-Marty in Pour un droit commun, Librairie du XXe siècle. Paris: Seuil, 1994.


shown the slightest sign of irritation, even when legislators have openly criticized their legitimacy to evaluate and make judicial solutions in conformity with the applicable law. As Senator Jacques Valade claims without any precaution in his report for the Commission on Cultural Affairs (supra), “the principle of the Conseil d’État, which, in blocking any general and absolute prohibition of the headscarf, implicitly authorizes its use, and thus had the effect of increasing the number of young women wearing headscarves in school.” This remark, so serious because it is accusatory, goes too far. It relies upon a perception—a “pontifical” one according to Madame Hanifa Chérifi—for which there is not a shred of confirming evidence. On June 4, 2003, Rémy Schwartz, a petitions attorney (maître des requêtes) at the Conseil d’État, became irritated before the parliamentary fact-finding mission:

I wish to clarify that the Conseil d’État did not simply wake up one morning and say, “Well, why not broach an easy question: the headscarf.” The Conseil d’État has cases referred to it and must make decisions in legal disputes. Things must be put in their proper perspective. If there were no disputes, then that would mean that society is regulating itself without difficulty. And it’s all for the better. Various jurisdictions, which are overburdened with cases, do not seek out disputes … in its modest role as judge, it did not feel itself capable of giving a meaning to a sign worn by people who proclaim themselves members of a religion. This is a very important point: the judge who is perhaps no longer in his element does not know how to deal with such a question.

Put under this kind of pressure, the administrative jurisdiction, faithful to its long tradition of respect for republican legality, like a venerable “law factory” (fabrique du droit),36 did not wait to make another appearance when it made a ruling on April 7, 2004, only a little less than a month after the passage of the law in question. This return to the jurisdictional box was foreseeable from the moment an individual liberty—freedom of conscience and of education—was at stake, the protection of which may be ensured by administrative judges in accordance with Article L. 521-2 of the Administrative Justice Code. What were the facts of this case? Hilal Kilicikesen, born in 1992 as a Turkish national, was expelled from a collège January 6, 2004 for wearing a “headscarf.” After she was admitted to a collège in the same city on February 10, 2004, her teachers contested the manner in which she wore this attire. From March 10, 2004 on, the student was no longer admitted into classrooms, though she was allowed to enter the premises of the collège. The student’s parents then filed suit under Article L. 521-2 of the Administrative Justice Code, requesting that the school administration be forced to take every measure available so that their daughter may be able to pursue a normal educational route. The Administrative Court of Strasbourg dismissed their demand for an injunction, and the case was decided by the Conseil d’Etat, the appropriate judge of injunctions, and was presided over by Daniel Labetoulle, president of

36 Bruno Latour, La fabrique du droit, Edition de la Découverte, Nov. 2004.


the judicial section of the Conseil. During the preliminary investigation, the director of Judicial Affairs for the Ministry of Education detailed in writing the “characteristics of attire which could be regarded by the administration, in such matters, as justified by the freedom of expression of religious beliefs.” The parents then made known to the Conseil d’Etat their desire to continue with their initial accusations. Left open to judgment, the highest administrative judge, charged with matters of special urgency, decided that

if the possibility of expressing in appropriate forms one’s religious convictions constitutes a fundamental liberty, then in the present circumstance and taking into account the guarantees and indications offered by the director of Judicial Affairs for the Ministry of Education, it does not appear at this time that the State can be held responsible for infringing on the rights of such a freedom.

Even if this decision occurred prior to the law of March 15, 2004 coming into effect, it is hardly of less interest, first of all, because the Conseil d’Etat thereby confirmed the conditional nature of the right of students to express their religious convictions. To be free, this expression must assume “appropriate forms.” This conditional pronouncement conforms to administrative jurisprudence following the decision of November 2, 1992, now famous because of the Kherroua case, which delimits particular forms of religious expression at school but also conforms to the limitations of Article L. 141-5 of the Education Code. We are thus reminded that the exercise of even a fundamental liberty can have limitations.37 We do not know here the content of “appropriate forms” as formulated because they seem so vague and imprecise in comparison to the “detailed” and written clarifications repeated by the Director of Judicial Affairs. The clarifications were given when the highest levels of the administration gave it “assurances and indications” regarding the freedom accorded a student for expressing her religious convictions. The Conseil d’Etat judged that in this case there was no infringement on her freedoms. Obviously, the judge’s conviction and reasoning resulted from a very careful and circumstantial examination of this case, from which he did not wander. The protection of an individual liberty was at stake within the constraints of these circumstances, while avoiding the formulation of general principles such as an entirely theoretical proposal. The office of the judge is bound by both the case’s facts, which unfolded prior to its session and by what comes up during the investigation through the jurisdictional process. In this particular case, the investigation was punctuated, on two occasions, by the presentation of “detailed” indications by the administration and the absence of the plaintiffs, who neither

37 Provided for by law, since the law of March 15, 2004 took effect within the parameters given to it by the European Court of Human Rights; on the other hand, we continue to wait, with regard to the legibility, the applicability—in a word, the foreseeable nature—of the legal condition concerning the materiality of the abuse of expression drawn from how a sign or dress ostensibly displays religious affiliation.


appeared before the judges in Strasbourg nor before the Conseil d’Etat during the second hearing on April 5, 2004, during which a “dialogue” or contradictory discussion was still possible.38

In a decision rendered October 8, 2004, also involving an injunction order falling under Article L. 521-2 cited above, the Conseil d’Etat also made ruling with regard to the “motive for wearing a bandanna by a student” who was also born in 1992, the year of the Kherroua case. In this 2004 case, the school principal had asked her to remove a bandanna-like handkerchief from her head, without any other explanation, it seems; when she failed to comply, he required that she leave the school grounds with her father’s permission. At first, she was permitted to go to study hall in order to keep up with her school work, but after her father had been called in to a first meeting with the principal, she did not return to school. Her father presented a medical certificate attesting to his daughter’s state of anxiety and recommending her absence from school. The Conseil d’Etat did not find that a clear attack on the rights and freedoms of the student had occurred, “although some doubt persisted, in the course of the investigation, concerning the student’s motive for wearing the bandanna,” not to mention that the school administration had decided to “keep the student in study hall while pursuing dialogue.” The examination of the material conditions surrounding the request for the student to remove the attire in question was, once again, a determining factor in the decision. The technical expertise of the judicial affairs administration of the Ministry of Education hit the bull’s eye in respect to procedure. Legally speaking, the principal’s first two measures, namely the request to remove the clothing on the grounds because it was forbidden by law and placing the student in the study hall, appear in reality to be thornier issues. In the written decision, the principal’s choices are highly contestable, issues the Conseil d’Etat was unable to verify because of the procedural failures on the part of the student and her parents.39

Consequently, by wielding control over the material and legal conditions surrounding legal disputes,40 the Conseil d’Etat has, for the moment, avoided interpreting the difficult question of what constitutes symbols or dress worn by students to openly show their religious affiliation. The main pitfall entails the definition of religious affiliation and the student’s motives.41 In this case, does the

38 E. Tawil, Conseil d’Etat, réf., JCPA, April 7, 2004, 1554.39 E. Tawil, Conseil d’Etat, réf, JCPA, October 8, 2004, 1849.40 The administration cannot expel students from classrooms without initiating a

disciplinary procedure. M.B. Singhi. TA Cergy-Pontoise, Ord., AJDA, October 21, 2004-2023. Were it to fail to do so, the Administration would be committing a grievous and expressly illegal breach of rights.

41 For an extensive interpretation of the law with regards to student motives and will, see T.A. Melun. M. Gurdial Singh. req. 05-0766/5, 19 April 2005: “the legal ban could be repeatedly used against the plaintiff from the moment that in continuing to wear the turban or keski sikh, he was adopting a style of dress that made him immediately recognizable as belonging to the Sikh religion, and this without the administration having to question him


bandana identify the religious affiliation of its wearer, even in an open way? Must the students be questioned on this count if there is some doubt? Suspicion, we know, is a poor judge; it represents one of the matters in dispute since the law has not precisely defined the cause for the ban with regard to what is “ostensible,” and because an inventory or a list arises from the realm of interpretation and not from the law itself. In sum, the administrative jurisdiction’s practice of avoidance,42 marked equally by prudence and the casuistry of dispute, confirms the uncertainty of the law’s applicability.

Recourse to Intenational Human Rights Case Law, a Source of Foreseeable Changes

The government and the parliament quickly evaluated France’s national commitments to the European Convention on Human Rights. As a result, the term “ostensible” was retained but not “visible,” since “proscribing any visible sign would go too far by breaching privacy, which the State has no right to do … To prohibit ‘visible’ symbols would risk making the law incompatible with the Constitution, but also with our international commitments” (Report of Senator Valade, supra). The “European reaction”43 thus played a role in measuring the bill’s compatibility with the European Convention and case law at the European Court of Human Rights. When it was finally convinced of the need for the legislation’s compatibility, the presidential “Stasi” Commission had already moved forward in October 2003 with a hearing with the vice-president of the European Court of Human Rights, the French judge Jean-Paul Costa, who on his own believed himself authorized, in breaking with his obligations for discretion, to declare that “if such a law were submitted to our Court, it would be judged in conformity with

about the motive of the interested party to adopt an attitude of protest or proselytizing, nor does it have to establish that the plaintiff’s attitude was of such a nature as to trouble the public order.”

42 See also T.A. Caen, réf. M. and Mme Kervanci. req. no. 0500573, March 16, 2005; on the student’s right to education respected notwithstanding the disciplinary procedure, T.A. Caen, réf. October 19, 2004, M. and Mme Seref Bayrak, no. 0402151.

43 See also Decision no. 2004-505 DC of 19 November 2004 rendered by the Constitutional Council on the question of knowing whether the authorization to ratify the treaty which establishes a Constitution for Europe must be preceded by a revision of the Constitution: “ … the European Court of Human Rights … by its decision Leyla Şahin v. Turkey … formally noted the value of secularism … and (that it leaves) to States a wide margin of appreciation for defining the most appropriate measures, in view of their national traditions … ” Note that the Constitutional Council studied the decision rendered June 29, 2004 by the European Court of Human Rights in the Leyla Şahin case, even though the decision was not definitive since it was referred to the Grand Chamber of the Court. This solemn reference thus marks the Constitutional Council’s strong attachment to dialogue between judges, and also to the national judicial tradition as it was affirmed in Strasbourg. D. (2005), no. 17, 1131–2).


the French model of secularism, and thus not in contradiction with the European Human Rights Convention.” What this “oracle”44 said was shocking; his point of view was decisive in carrying the votes of hesitant members of the commission.45

The question of compatibility with the European Convention would appear central, as it was treated by the Conseil d’Etat in its aforementioned decision of October 8, 2004 (Union française pour la cohésion nationale),46 whereas in its annual Report, the Upper Chamber had carefully avoided making a ruling. The vice-president’s personal opinion might appear to have been confirmed in the ruling by the European Court of Human Rights on June 29, 2004, in its decision on Leyla Şahin v. Turkey. In this suit, brought by a medical student who contested a chancellor’s circular at the University of Istanbul providing that students with headscarves could not attend classes, the Court in fact decided that “the accused measure can pass as compatible with the legitimate objectives enumerated in Article 9, item 2, of the (European) Convention (on Human Rights), taking into account the importance of the protection of the principle of secularism in Turkey.”47 The Court had previously judged that the regulation did indeed interfere in students’ freedom of religion by virtue of the fact that it was an administrative prohibition and not a disciplinary sanction. Once the existence of an interference

44 According to R. Libchaber (2004), 161, “we have never thought that the decision of an entire country might hang on the words of a single person—even if he were the inspired oracle of a foreign Judicial Divinity.” See also E. Bribosia and I. Rorive. Le Voile à l’école: une Europe Divisée. Revue Trimestrielle des Droits de l’homme, 60, 2004, 983.

45 For Jean-François Flauss, “Although technically vague and risky in terms of professional ethics, the stance of the vice president of the European Court of Human Rights enjoyed great success … The viewpoint defended by the French judge … is far from unanimity among his colleagues or former colleagues at the Conseil d’Etat.” J.F. Flauss. Les signes religieux, in La liberté religieuse et la Convention européenne des droits de l’homme 58, edited by T. Massis and C. Pettiti. Brussels: Nemesis-Bruylant, 2004, 100, 111.

46 Flauss explains that the Conseil d’Etat’s stamp of approval would not be an “all-risk insurance policy.” J.F. Flauss (2004), 100. On the other hand, while observing that the (Şahin) decision of June 29, 2004 rendered by the same chamber was not definitive, the same author (in AJDA, October 4, 2004, 1816) considers that the French measure respects the European Convention which assumes a primary role given to the context of “constitutional secularism” (understood not in the sense of secularism defined on the banks of the Seine, “à la française,” but in the sense of “cultural secularism,” a transnational concept as presented by Jean-Paul Willaime). This conception results from the evolution of case law impacted by the treatment and judgments of the European Court of Human Rights in the so-called Refah Partisi v. Turkey case, which elevated constitutional and cultural secularism to a value of the European Convention. A. Garay. L’islam et l’ordre européen vus par la Cour européenne des droits de l’homme, Revue de droit international et de droit compare, Bruxelles, 2005, pp. 117–55.

47 See the articles by G. Yildizim. Recueil. Paris: Dalloz. 2005, 204); B. Bonnet. La Semaine Juridique. February 2, 2005, II, 10016, 223; M. Lombard. Revue mensuelle du JurisClasseur—Droit Administratif, October 2004, 33.


was acknowledged, the Court acted in accordance with its jurisdictional method, examining the case and determining that it would verify whether the limitation was necessary as provided for by law. In other words, the Court offered to decide whether, in a democratic society, the limitation constituted a legitimate and proportionate objective commensurate with the goal sought.

Contrary to a reading that would rush to aid the interests of partisans of the law of March 15, 2004, the solution in the Şahin v. Turkey decision cannot be transposed ipso facto onto the French situation.48 First of all, it must be known whether the judicial regime instituted in France guarantees sufficient provision for the conditions pronounced through the Court’s case law: “the restrictive norm must provide for a citizen to be able to adjust his (own) conduct. By informing himself properly, he must be able, to a reasonable degree, make a decision in given circumstances to anticipate the consequences.”49 Yet in practice, in terms of legibility and the clarity of its provisions, the law of March 15, 2004 is best suited for a contortionist or a “futurologist.”

The motivation for the decisions rendered up until now by the administrative courts conveys in its own way how insufficient it is in legibility and reasonable expectations. For example, see the ordinance of the Administrative Tribunal of Caen of March 16, 2005 which, in three lines, settled an appeal brought against a prefectorial decision that approved the definitive expulsion of a female student. She was wearing an “Islamic headscarf wrapped around her face,” followed by an “embroidered black bonnet covering her head,” and finally, a “black wool bonnet covering all of her hair.” When one considers, however, “that in the investigation none of the means invoked is of a nature to create a serious doubt concerning the legality of the contested decision,” this uncertainty resulting from the extremely laconic and specious character behind the dispute is astonishing when facing problems of fundamental rights. Additionally, there is the question of whether the Leyla Şahin v. Turkey decision confirms the conventional legality of the law of

48 F. Sudre asserts, with reference to the Şahin decision, that “any transposition of the solution to the French situation … seems fraught with risk since the (European) Court’s decision is so carefully circumscribed by the Turkish context” JCP 2004, I, 161, spécl., 1580). Ronny Abraham, director of Judicial Affairs at the Ministry of Foreign Affairs, explained in reference to the French law that “it is very difficult to foresee what the Strasbourg Court would judge in a similar case.” Report no. 1381, Commission on Constitutional Laws, P. Clément, JOAN, Doc., session 2004, 26.

49 October 9, 2003, Slivenko et. al. v. Russia. The appeal to judicial experts is in question here. The law of March 15, 2004 requires that one understand a prohibition that is neither clear nor obvious. Legal counsel may be useful after the fact, implicitly in the dialogue phase and explicitly before the Disciplinary Council, for explaining, making explicit, clarifying, and providing assistance or a defense in the case of religious affiliation.


March 15, 2004 with regard to the criteria of necessity and proportionality of the interference, let alone its legitimacy.50

The European Court’s affection for this judicial method is well known. Nothing is less certain from the standpoint of taking into account the state’s or nation’s margin of appreciation (“the margin of appreciation is thereby left to national authorities,” § 100 ff.).51 What was the state’s margin of appreciation in Turkey and in France? The Turkish government was caught in the crossfire of the conflict between the survival of the democratic state and politico-religious Islamic extremism which conferred upon the religious symbols in question a political status (§ 108). In France, the Government enjoyed a great deal of freedom that the quantitative facts prior to and after the fact never refuted. This constituted a wide margin given the Conseil d’Etat’s method. By means of a “purely abstract motivation,” the method exposed the very absence of determining factors which would provide material justification for the legitimacy and necessity of the legal headscarf ban, as well as the proportionality of the sanctions. Since the beginning of the academic year 2004–2005, when the case was referred to the Conseil d’Etat, it is in fact upon very general and theoretical terms that it has founded its reasoning, in abstracto, without constructing a convincing demonstration. But could it have done so given the terms of the law? The answer is, not really.52

Case law from the European Court of Human Rights, which is rare, prudent, and evolving, is uncertain because its subject is so complex—those social and cultural values which are divisive in Europe.53 This case law—awaiting a decision to be delivered by the Grand Chamber of the European Court—must also be put into perspective with findings by the United Nations Human Rights Council (formerly the Committee on Human Rights),54 which monitors the human rights commitments of various states. Though little known among most non-specialists, it was founded on the International Convention on Civil and Political Rights

50 See V. Fabre-Alibert. La loi française du 15 mars 2004: vers un pacte social laïque? Revue trimestrielle des droits de l’homme, 59, 2004, 575.

51 In its Şahin decision, the European Court specifies that the state’s margin of appreciation is a determining factor on condition that profound divergences exist which divide a democratic State in the absence of uniform solutions across Europe with regards to the regulation in question. See E. Bribosia and I. Rivoire (2004), 983.

52 Moreover, for Jean-François Flauss, “The inconsistent practice of collèges and lycées becomes suspect in the eyes of the European Court of Human Rights when the heaviest sanction—definitive expulsion—is decreed ex abrupto, without previously pronouncing lighter sanctions”. Flauss underscores that European oversight is “particularly finicky” on this point.

53 See A. Debet. Signes religieux et jurisprudence europeéenne. La laïcité, 48, 2004, 221–48.

54 For a recent and effective presentation of the UN’s system for regulating and monitoring human rights, see N. Bouziri. La protection des droits civils et politiques par l’ONU-l’oeuvre du Comité des droits de l’homme. L’Harmattan, 2003, 604.


(ICCPR) and articulates a stance that seems in opposition to the European Court of Human Rights. Judicial consensus must not create a diversion so long as the position of French authorities may in the future be subject to the Human Rights Council. Raihon Hudoyberganova, a student at the school of languages at Tashkent (Uzbekistan), had more success before the UN than Leyla Şahin had with the European Court. In decision 2000/931 of January 18, 2005, the Human Rights Council, in conformity with paragraph 4 of Article 5 of the optional Protocol to the International Pact (on economic, social and cultural rights), observed that

The author claimed that her right to freedom of thought, conscience and religion was violated as she was excluded from University because she refused to remove the headscarf she wore in accordance with her beliefs. The Council considers that the freedom to manifest one’s religion encompasses the right to wear clothes or attire in public, which is in conformity with the individual’s faith or religion. Furthermore, it considers that to prevent a person from wearing religious clothing in public or in private may constitute a violation of article 18, §2, which prohibits any coercion that would impair the individual’s freedom to have or adopt a religion. As reflected in the Committee’s General Comment n°22 (§5), policies or practices that have the same intention or effect as direct coercion, such as those restricting access to education, are inconsistent with article 18, §2 … . Neither the author nor the State party have specified what precise kind of attire the author wore and which was referred to as “hijab” by both parties … . The State party is under an obligation to provide the author with an effective remedy. The State party is under the obligation to take measures to prevent similar violations in the future. Here, prudence is the order of the day, because Uzbekistan is not France … no more than Turkey is.

Conclusion

The law is first and foremost a matter of education, of the school as an institution which must be “protected from communitarian demands” (cf. the circular of May 18, 2004, cited above), when justifying a new mechanism in the educational code. Having been powerfully affected by the solutions drawn from school disciplinary cases decided in administrative courts, the new legal mechanism is obviously not a means of appeasement, something the law would not be able to accomplish, from a technical standpoint.55 In France, mixing “school” (an addition to the educational code) and “secularism” (laïcité) (in the name of its application) is, in some respects, explosive. Pressured by public opinion and given the national tendency to “train” and “to enforce,” is the draconian

55 J.P. Camby. Le principe de la laïcité: l’apaisement par le droit. Revue de droit public, 2005, no. 1, 3. The judicial mechanism instituted by the law of March 15, 2004 will therefore be in large measure the result of litigated solutions.


and symbolic choice to prohibit the abuse of religious adherence a factor of democratic modernity or a sign of democratic archaism? To ask the question is to already offer an answer. Contradicting the “secular tsunami,” which for months mobilized expensive human and material resources, exposes anyone who resists to being drowned by the tidal wave.

Is the law a clarification56 or smokescreen? Is it a circumstantial law, drawn up in the name of the reality principle? Is it a law that backfired or an attempt to avoid debate on whether to revise, a century after its passage, the law of December 9, 1905, concerning the separation of Church and State? Is the return in media coverage of, and the focus on, the “Islamic headscarf affair” a means for avoiding the technical questions about the judicial mechanisms that provide freedom of religion in France (for example, the status of “religious associations,” tax exemption, and so forth)? Is the question closed when “the collective convinced itself of the need to make legislation”? It is not entirely clear given how some elected officials have followed the issue (see the written declaration made public February 21, 2005 regarding freedom of religion in France and Europe, from the five European députés, including Alain Lipietz and Caroline Lucas from France) and the observations of Asma Jahangir, Special Rapporteur to the United Nations on Freedom of Religion and Belief, who continues to monitor developments in the current tensions.57 What will develop into international disputes on the matter?

The Law of March 15, 2004 reminds us that the order of liberties and the order of realities examined here continue to be in conflict against the backdrop of the crisis of democratic values threatened by a partisan politicization of societal stakes, but also by politico-religious overstatement. Today, this seemingly minor question has a transnational scope on the level of the “models” or standards of public policies meant to sort out “communitarianism,”58 to protect the status

56 J.L. Schlegel. Loi sur le voile: la clarification a-t-elle eu lieu? Esprit, March–April 2004, 284.

57 See her report E/CN.4/2005/61 of December 20, 2005, submitted to the 61st session of the UN Human Rights Commission, which singles France out because of the law of March 15, 2004.

58 Aspects du communautarisme: fait et droit religieux au regard du droit. Revue Trimestrielle de Droit Civil, July–September 2003, 575–80. The author understands “communitarianism” to mean “the weakening of the abstract notion of the individual to the profit of the over-evaluation of certain of its physical traits, be they ethnic, religious or sexual—the essential fact being that they end up being contained by a particular worldview, common to those who share them together. This over-evaluation leads to a reduction of the individual to one or another of his particularities, and to a demand that his status be redefined by the culture now recomposed. Replaced by the individualist ideology of human rights, this notion militates for a double diversification of rights: communitarianism exalts the individual, but only after having fused him with the group; difference is sanctified at the price of a prior fusion, as if recognition of the individual had to pass through the assumption of an emblematic community. What is more, this claim utilizes the lever of human rights, when even the grand


of women “threatened” by the obligation of wearing religious attire or a sign of religious adherence, subject to observations elaborated abroad which are mixed with a lack of understanding and criticism. The political will that made itself known—qualified as a “national convulsion”—reflects in this way the questioning of a French society fixated on the problem of identity, whose model of integration has apparently broken down. The troubled Republic was called to the rescue with a strong reinforcement by presidential intervention: “The Republic will oppose everything that separates, everything that drives away, everything that excludes.”59 It is therefore a matter of political philosophy and democratic stakes, when the exercise of a behavior is subjected to prohibitive constraints and sanctions. Democrats are wary of prohibitions decided in the name of a philosophical or cultural worldview, since neither the public order nor the protection of the rights and freedoms of others is concretely compromised. This reflex of falling back on a ban, in its negativity, particularizes a part of French society, which is subjected to rejections and “Nos.”60 In practice, nonetheless, the mission of school authorities remains extremely difficult, whether it is subject or not to legal prohibition, and subordinated here to the order of belief (“I show my religious belief openly even at school”).

By means of his appeasing gesture toward believers, in the wake of the quarrel of the “school manuals” that became secularized by the law of March 28, 1882, Jules Ferry, the Minister of Public Education, reminded teachers in his famous “Letter to the Teachers” (November 17, 1983), “You are not the apostles of a new Gospel: legislators did not wish to make of you philosophers nor improvised theologians.” This remark resonates today in the paradox regarding open display of religious adherence in the republic’s schools. This paradox creates significant ambiguity, as the Republic tells “students and believers, I do not recognize you as such but, if you openly display your religious affiliation, I will forbid it, even if the law forbids me from recognizing your religion.”

School authorities, sure to call for clarity, are now more than ever subject to the “boomerang” vagaries of legal bans. Will these authorities know how to satisfy the demands of a qualitative and quantitative assessment? This is a

declarations that expressed its ideology had taken the precaution of establishing an abstract man, by extracting him from the particular statuses in which the 17th century notions of individuals was still entrenched.” According to the circular of May 18, 2004, cited above, the principle of secularism depends upon “respect for the freedom of conscience and the affirmation of common values which found national unity beyond particular affiliations.”

59 Jacques Chirac, Discourse on the principle of secularism in the Republic, Palais de l’Elysée, Dec. 17, 2003. Consult the excellent Ministry of Education. Guide Républicain—L’idée républicaine aujourd’hui. Paris: Edition Delagrave, 2004. This presents the presidential discourse in its entirety; the guide is an alphabetic primer on republican notions, an anthology of 88 texts as well as important references.

60 Read the article by A. Faure. Soubassements et sens cachés du non en politique. Le Monde. March 25, 2005, 15.


capital question. It goes along with the effective exercise of the rights, liberties and fundamental obligations of students within a school now more than ever under scrutiny, and, in some sense, “sanctuarized”61 because it bears symbolic, and at the same time, democratic values.

61 P. Blondel (2004), 212, underscores that the law of March 15, 2004 sets up a sort of “active repentance” in schools since it provides “a necessary step before a disciplinary procedure may be initiated, for, without saying it, the ban and the failure of dialogue must normally have as their outcome an exclusion.”

Chapter 8

Religion, Education, and the Turkish Constitution: A Critical Assessment

Levent Köker

Introduction

Under the title “the Right to Freedom of Conscience, Religious Belief, and Conviction,” Article 24/4 of the Turkish Constitution stipulates that

Education and instruction in religion and ethics shall be conducted under state supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools. Other religious education and instruction shall be subject to the individual’s own desire, and in the case of minors, to the request of their legal representatives.

Although the wording states quite explicitly that there are two different kinds of religious education—one compulsory and the other optional—this important clause has been interpreted and implemented as if the Constitution promulgates compulsory religious education only in primary and secondary schools. Moreover, state authorities most commonly understand “education and instruction in religion and ethics” as the instruction of the fundamental principles of (Sunni) Islam as approved by the Presidency of Religious Affairs (Diyanet). This practice of religious education has not only led to a series of violations of freedom of religion or belief, but has also been a source of deep controversy among Muslim and non-Muslim communities and individuals in Turkish society.

Although the rights of non-Muslim communities and individuals have been under the protection of the Treaty of Lausanne, state authorities’ interpretation of the stipulations pertaining to the rights of non-Muslim minorities has always been suspect in light of the treaty’s language and universal principles of the modern rule of law. Explicitly put, Turkish authorities’ official interpretation of the term “non-Muslim minorities” includes only Greek Orthodox, Armenian, and Jewish communities, even though the treaty mentions no specific religious or ethnic communities.1 This official interpretation of the treaty, therefore, has led to the

1 The treaty’s most important stipulation regarding freedom of religion or belief is Article 38/2: “All inhabitants of Turkey shall be entitled to free exercise, whether in public or private, of any creed, religion, or belief, the observance of which shall not be incompatible


Turkish state’s disregard of the rights and liberties of ancient Syriac, Nestorian, and Chaldean Christian communities, and has caused problems regarding freedom of religion for newly formed communities.

Besides the problems that non-Muslim communities face, Article 24/4 of the Turkish Constitution also touches the rights and freedoms of the vast majority of Turks who regard themselves as Muslims. In contrast to the prevailing view of Turkey as a predominantly Muslim society,2 in reality there are sharp differences in Turks’ religious practices and beliefs, even among Muslims. Hence, a highly significant degree of cultural and religious pluralism is reflected in certain fault lines, such as the Sunni-Alevi divide, the Hanafi and Shafii (mostly Kurdish) denominations within the Sunni majority, or the practicing and non-practicing members within the greater society. As each of these groups might have developed their own understanding of religious belief and practice, the undifferentiated implementation of Article 24/4 of the Turkish Constitution has caused serious stress, controversy, and human rights violations reflected in recent decisions of European Court of Human Rights (hereinafter “the European Court”) and Turkish Council of State (Danıştay, or Turkish Court of Appeals for the judicial review of state administration). In addition to this major problem area caused by the misinterpretation of the constitutional provisions concerning compulsory education in religion, there are also other constitutional promulgations related to the legal status and practice of freedom of religion or belief in contemporary Turkey. If one example is the ban on women’s headscarves in higher education, the other is the constitutional status of the Diyanet.

What follows is a critical assessment of the present Turkish Constitution in regard to the ways in which it stipulates the relationship between religion, education, and the state. Since the universal standards of freedom of religion or belief provide the guidelines of the critical analysis I wish to pursue, and so far as these standards include “the establishment clause,” “the free exercise clause,”

with public order and good morals” (italics added). All other articles in the treaty pertaining to the rights and freedoms of minorities use the language similar to that of Article 38/2 without mentioning any specific religious or denominational community. For example, Article 40 reads: “Turkish nationals belonging to non-Muslim minorities shall enjoy the same treatment and security in law and in fact as other Turkish nationals. In particular, they shall have an equal right to establish, manage, and control, at their own expense, any charitable, religious and social institutions, any schools and other establishments for instruction and education, with the right to use their own language and to exercise their own religion freely therein” (italics added). Available at: http://wwi.lib.byu.edu/index.php/Treaty_of_Lausanne (accessed March 15, 2012).

2 Compare P.G. Danchin. Suspect symbols: value pluralism as a theory of religious freedom in international law. The Yale Joural of International Law 33(1), 2008, 25. He states that “in Turkey there is a strongly homogenous, religiously and culturally defined majority nation” (italics added).

Religion, Education, and the Turkish Constitution 149

and the requirement of “equal respect,”3 this assessment will focus on three major problem areas in Turkey.

The first problem area concerns the institutional framework within which the relationship between religion, education, and the state have been established; that is, the historical formation and present status of the Diyanet. The second problem area pertains to the ways in which constitutionally compulsory education in religion and ethics is understood and implemented. The problem is seen as a violation of the right to free exercise of religion, embodying a significant degree of discrimination against not only the Alevi community but also other religious and non-religious segments of Turkish society. Finally, the third problem regards the now-famous issue of the ban on women students’ headscarves in higher education.

The Institutional Framework of the Relations between Religion and the State: The Formation and Increasing Role of the Diyanet

In order to understand the existing institutional framework of the relationship between religion and the state in Turkey, we must focus on the historical determinants of the present state of affairs. It should be noted that, historically speaking, religion in Turkey has always been subordinated to the state, albeit for different reasons in different eras. Under the classical institutional structure of the Ottoman Empire, religion (Islam) enjoyed a kind of ideological primacy that legitimized the actions of the state (the Sultan). Best described by the notion of “the circle of justice,”4 the Ottoman Sultanate made use of Islam as a legitimizing

3 Inspired by the First Amendment to the US Constitution, these universal standards of freedom of religion or belief are justified morally and legally, as reflected in international legal instruments such as the United Nations’ “twin international covenants” (the International Covenant on Civil and Political Rights and the International Covenant on Economic and Social Rights) and the European Convention on Human Rights (ECHR). As for the Republic of Turkey, a founding member of the Council of Europe in 1949 and a drafter of ECHR, the ECHR and the Treaty of Lausanne, have had a strong binding force. Turkey has accepted since 1987 the jurisdiction of the European Court of Human Rights and the right of the individual to apply directly to that court. Additionally, Turkey amended its Constitution (Article 90) in 2004 and unambiguously accepted that international legal instruments regarding fundamental human rights and liberties have a superior binding force when they conflict with Turkish law.

4 “The circle of equity” that limits and thus legitimizes the power of the Sultan is a well-known idea, made famous by the Muslim philosopher Fakhr al-Din al-Razi. The idea has been put forward in a poetical form:

“The world is a garden, whose gardener is the state;The state is the sultan whose guardian is the Law;The Law is a policy, which is protected by the kingdom;The kingdom is a city, brought into being by the army;The army is made secure by wealth;


framework. For example, the organization of Islamic scholars (ulema) was critical to the state’s institutional set-up. It ran religious schools (madrasas), staffed the judiciary, and was headed by the Sheikh-al-Islam (Şeyhülislam in modern Turkish), who in fact had the status of the servant (kul) of the Sultan.5

Even though there had been a difference between the official Islam, or Islamic orthodoxy, of the Sultanate and the folk Islam of heterodox sects and brotherhoods,6 it nevertheless used to be the case that Islam played a dominant role in the formation of the relationship between the Ottoman Sultanate and its subjects. A predominantly pre-modern agricultural empire, the Ottoman State did not know the notions of equality before the law, let alone the modern idea of human rights and freedoms. Hence, its subjects were treated according to their different religions, each religious community making up a specific “millet,” Muslims being the “dominant community” (millet-i hâkime) and non-Muslims “subordinate communities” (milel-i mahkûme).7

The Reform Era of the nineteenth century, beginning with the imperial edict of 1839 and culminating with the acceptance of a modern constitution in 1876, was partly successful, at least in providing a historical basis for subsequent modernization during and after the 1920s. Several basic historical changes took place during this reform period. Initial Ottoman attempts to prevent the disintegration of the empire by giving legal equality to different religious and ethnic communities then seen as the elements of the Ottoman State failed. This project’s failure to establish a unified Ottoman polity made up of different religious and ethnic communities, and the victory of Turkish nationalism during the 1920s struggle for independence, paved the way for the establishment of the Turkish Republic in 1923. This in turn led to significant political and cultural reforms within which a reorganization of religion-state relations also took place.

Established territorially in a region (primarily Anatolia) whose inhabitants had become “Islamized,” the new Turkish Republic inevitably faced the problem of religion being an important part of the emerging national identity. In the nineteenth and early twentieth centuries, Anatolia’s population was almost one-third non-Muslim. It has since become 99 percent Muslim due to the Armenian

Wealth is gathered from the subjects;The subjects are made servants by justice;Justice is the axis of the prosperity of the world.”For an account of this idea, see N. Itzkovitz. Ottoman Empire and the Islamic Tradition.

Chicago and London: The University of Chicago Press, 1972, 88.5 See I.H. Uzunçarşılı. Osmanlı Devletinin İlmiyye Teşkilatı. Ankara: Türk Tarih

kurumu, 1984, 173–214.6 S. Mardin. Religion, Society, and Modernity in Turkey. Syracuse: Syracuse University

Press, 2006.7 For further reading on the “millet system”, see K. Karpat. An Inquiry into the Social

Foundations of Nationalism in the Ottoman State: From Social Estates to Classes, From Millets to Nations. Princeton: Princeton University Press, 1973.


massacre of 1915 and the population exchange with Greece in 1924. The “asset tax” law of 1942 (Varlık Vergisi), which discriminated against non-Muslims, and the riots of September 6–7, 1955 should also be noted as major historical events that contributed to the almost total disappearance of non-Muslims from Turkey, leaving only a few Greek and Armenian communities in Istanbul and other Anatolian towns, and a very few marginalized communities of ancient Christians, mainly in the south and the east.

Thus, the Kemalist founders of the Turkish Republic in 1923 faced a problem: the republic’s population consisted of different ethnic groups, such as “Turks, Kurds, Laz, Albanians, Circassians, and so forth,” who were united under the banner of Islam for “national (millî, a term still reflecting the old Ottoman meaning of a religious community) struggle.”8 Turkey’s founders, on the other hand, devised a project to modernize society from above, using the power of the state to establish a new nation-state. In order to complete this project they had to replace the Ottoman religious institutions, most notably the Caliphate and the office of the Şeyhülislam. Parliament partially resolved this problem in 1924 by passing a law abolishing the Caliphate and the office of the Şeyhülislam and establishing in its place the Presidency of Religious Affairs (Diyanet). I say the resolution was partial because these legal-institutional changes had to be supported by cultural policies to eradicate the strong religious (Islamic) element that existed in the traditional national identity.

Due to the failure to establish a culturally pluralist polity with Muslim and non-Muslim communities, the republic had established the Diyanet. This new institution had been organized to deal with Muslims’ problems in ethics (ahlâk), faith (itikadât), and worship (ibadât), with the law-making and judicial powers of the office of the Şeyhülislam being reassigned to the legislature—the Turkish Grand National Assembly (TGNA)—and secular courts.9

When this new institutional design took place in 1924, the Constitution of the new Turkish Republic contained an article stipulating that “the religion of the Turkish state is the religion of Islam.” Reflecting the dominant role of Islam in mobilizing Anatolian Muslims for “national struggle,” this article would be abolished in 1928 and the principle of “laicism” (secularism) would be constitutionalized some nine years later in 1937.

As for the issue of religious education, provisions concerning non-Muslims’ relationship to such education existed in the Lausanne Treaty. But religious education for Muslims continued at all levels of organized education in Turkey until the early 1930s when the state adopted authoritarian secularist policies. Starting with the university reform of 1933, which closed down both the

8 See M. Kemal’s (Atatürk) speech delivered in 1920 in Turkish Grand National Assembly. Zabıt Ceridesi, D.1, I:1, Cilt:I, 65, cited in L. Köker. Modernleşme, Kemalizm ve Demokrasi. Istanbul: Iletişim yay., 2007, 150–51.

9 İ.B. Tarhanlı, Müslüman Toplum, “Laik” Devlet, Türkiye’de Diyanet İşleri Başkanlığı (Muslim Society, “Secular” State, The Presidency of Religious Affairs in Turkey). İstanbul: Afa, 1993, 41–2.


Darülfünun (meaning, literally, the realm of sciences, a name given to a modern higher education institute established in the late nineteenth century) and its theology school, religious education was erased from school curricula at all levels of organized education until 1949.

With Islam’s public and political role gaining increased visibility after Turkey’s transition to multi-party politics in 1945, a new theology school was opened together with religious vocational schools to educate imams and preachers. Hence, the state permitted “optional” religion courses at the primary and secondary (high school) levels after 1949. Together with Islam’s increasingly public and political role in Turkey, and as a consequence of societal modernization, relatively conservative-minded parents understood the religious vocational schools as places where children learn their religion properly; the enrollment numbers of these schools correspondingly increased. The overall modernization of Turkish society thus resulted in an increased role of the Diyanet in public and educational affairs.

The increased role of the Diyanet can be seen most notably in the change in its constitutional status. The institution had no constitutional status when it was established in 1924. In the 1961 Constitution, the Diyanet enjoyed the constitutional status of an organ of the central state administration, attached to the office of the Prime Minister. In the 1982 Constitution, however, the status of the Diyanet was redefined so that it functioned “in accordance with the principles of secularism, removed from all political views and ideas, and aiming at national solidarity and integrity” (Article 136). Reflecting a conservative and authoritarian reaction in Turkish politics to the social and political unrest and street violence experienced in Turkish society during the 1970s, this provision gives the Diyanet the duty to provide for cultural (ideological) means of social integration.

Even if this constitutional arrangement sufficiently shows the increasing public and political role of the Diyanet, one must still consider another provision in Article 89 of the Political Parties Act. Article 89, entitled “Protection of the Place of the Presidency of Religious Affairs,” appears under the part of the Political Parties Act that promulgates prohibitions for political parties. Stipulating an important prohibition for the protection of the secular state, Article 89 reads as follows: “Political parties cannot pursue aims that violate Article 136 of the Constitution pertaining to the organization of the Presidency of Religious Affairs[. Political parties must] function in accordance with the principles of secularism, [be] removed from all political views and ideas, and aim at national solidarity and integrity.” This stipulation has a kind of constitutional status, for it is formulated so as to protect secularism, which in turn has been defined as one of the immutable principles of the Turkish Constitution.

This increased role of the Diyanet in Turkish public and political life is further reinforced by its central role in designing the curriculum of compulsory religious education in primary and secondary education. Leaving to the following section a discussion of the problems that this institutional framework creates, it must be emphasized that the authoritarian conservative mentality inherent in almost every aspect of the current Turkish Constitution is critical in understanding the state’s


use of religious education as a vehicle for instilling Turkish national values. This mentality holds that the fundamental reason for the outbreak of political violence, especially among Turkish youth, in the 1970s was the lack of an education that internalized national values within students (again the term millî is used with respect to national values to imply Islamic traditions).

Problems Arising from the Constitutional Status and the Actual Practice of Compulsory Religious Education

As the foregoing suggests, the relationship between religion and the state has changed from religion being the ideology legitimizing the state to religion being an instrument of political control, the latter becoming more and more explicit as the need for state control over society increased. The abolishment of the Caliphate and the office of the Şeyhülislam, the establishment of the Diyanet, and the acceptance of the Unification of Instruction (Tevhid-i Tedrisat) have marked the initial phases of a project to establish a modern Turkish state with a united, homogeneous national culture.

So far as this nation-building project has succeeded in social and economic modernization, the ensuing public presence of religious, denominational, and cultural differences alarmed the state and drove it to find new institutional mechanisms for societal control. This need, backed by the authoritarian-conservative idea that religion and traditional culture could serve as an important pillar of societal integration, paved the way for the promotion of the constitutional-legal status of the Diyanet and the acceptance of compulsory religious education in primary and secondary school curricula.

The National Security Council (Millî Güvenlik Konseyi) provided the official justification for this change in the state’s approach towards religious education:

Due to this new decision, religious education will be introduced in every primary, middle, and high school on a compulsory basis. Consequently, our pupils will receive religious education from state schools. In the majority of Western countries religious education is given by schools. In fact, compulsory religious education in schools is compatible with secularist principles. On this matter, Ataturk stated: “Religion must be taken out of the hands of ignorant people, and control should be given to the appropriate people.” For these reasons, we will introduce compulsory religious education in our schools.10

This official justification of the 1980s military junta’s acceptance of compulsory religious education refers to the “undisputable” and “infallible” personality cult of

10 Cited in R. Kaymakcan. Religious education culture in Turkey, in International Handbook of the Religious, Moral and Spiritual Dimensions in Education, edited by M. de Souza. New York City: Springer Science and Business Media B.V., 2009, 450.


Atatürk and tries to reconcile the policy choice with secularism and a modern idea of religious education in democratic and secular societies.

Attempts to reconcile compulsory religious education in Turkey with the experience of Western democracies have not been confined to the military drafters of the 1982 Constitution. Referring occasionally to the wording of Article 24 of the Constitution, many supporters of compulsory religious education in Turkey argue that the courses in fact aim to provide students in primary and secondary education with knowledge of ethics, religion in general, and Islam in particular.

It is not easy to say that this view is incorrect so far as the wording of the Constitution is concerned, for the Constitution makes a distinction between “education and instruction in religious culture and ethics” and “other religious education.” However, three cases, all filed by Turkish citizens belonging to the Alevi community—one before the European Court (Hasan and Eylem Zengin vs. Turkey) and two others before the Danıştay11—suggest that compulsory religious education has been implemented as a kind of catechistic instruction of Sunni Islam and that it discriminates against the Alevi identity.

Deciding a case filed by the parents of a fourth grade student in primary school, the Fifth Administrative Court in Istanbul held that the state authorities’ refusal to exempt the child from compulsory religious courses pursuant to the parent’s demands violates both the Constitution and the European Convention on Human Rights (ECHR). The Court noted the different types of religious education stipulated in Article 24 of the Constitution and decided that compulsory religious instruction is against the Constitution and also violates Article 2 of Protocol No. 1 of the ECHR. Article 2 requires governments’ educational schemas to respect parents’ philosophical and religious beliefs and to enable children to develop critical approaches to religious claims.

This 2006 preliminary court decision has been approved by the Danıştay. In its 2008 decision approving the case, the Danıştay refers to the 2007 decision of the European Court. The importance of the dates is that, even though the preliminary court decision was made before the European Court issued its verdict on Hasan and Eylem Zengin vs. Turkey (Zengin Case), the Istanbul court followed almost an identical line of reasoning.

The importance of the European Court decision in the Zengin Case is that it establishes that the actual practice of compulsory religious education violates the ECHR. According to the European Court:

The right of parents to [be accorded] respect for their religious and philosophical convictions is grafted onto this fundamental right [to an education], and the first sentence [of Article 2] does not distinguish, any more than the second, between State and private teaching. In short, the second sentence of Article 2 aims at

11 For Danıştay casesdoi of E.2006/4107, K. 2007/7481 and E. 2007/679, K. 2008/1461 (E standing for the file number, K for the number of the decision). Available at: www.danistay.gov.tr (güncel kararlar) (accessed July 18, 2011).


safeguarding the possibility of pluralism in education, a possibility which is essential for the preservation of the “democratic society” as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realized. … Article 2 of Protocol No. 1 does not permit a distinction to be drawn between religious instruction and other subjects. It enjoins the State to respect parents’ convictions, be they religious or philosophical, throughout the entire State education programme.12

Now, according to Article 90 of the Turkish Constitution, as amended in 2004, “[i]n the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.” The ECHR, beyond doubt, falls into that category of international agreements which shall prevail over domestic laws that contradict its provisions. In view of the European Court decision, there is no doubt that domestic Turkish law that regulates compulsory religious education contradicts the ECHR. Thus, the idea that the European Court’s decision does not require that religious education be an optional course—which idea still prevails in the Diyanet and among some scholars of Islamic theology and academics in Turkish divinity schools—seems to be groundless.13

Despite the European Court’s clear and legally binding verdict, the Diyanet’s insistence on sustaining the constitutionality of the existing compulsory status of religious education suggests that the majoritarian understanding of Sunni Islam prevails. Much has been said and written about the ways in which these religious education courses, even with their content modified after a series of reforms, do not satisfy the demands of the Alevi community. On the other hand, there are also other groups and individuals in Turkey who are not Alevis, but who are still against compulsory religious education, regardless of the curriculum. Although

12 Quotations are from Hasan and Eylem Zengin v. Turkey (Appl. No. 1448/04), ECHR, October 9, 2007, paragraphs 48 and 49.

13 The President of the Diyanet, Professor Ali Bardakoğlu, criticized the Danıştay’s 2008 decisions for repeating the European Court’s mistakes by insisting on maintaining the existing compulsory status of religious education with some new reforms to eradicate problem-causing aspects of the curriculum. Available at: http://bianet.org/-bianet/din/105425-bardakoglu-nun-zorunlu-din-dersi-israri-uzerine (accessed March 15, 2012). In a similar vein, Kaymakcan also suggests further reform of the curriculum: R. Kaymakcan (2009). Also R. Kaymakcan. Din kültürü ve ahlak bilgisi dersi sosyal barış için gereklidir. Zaman, October 17, 2007. Compare İ. Yıldız. Din Kültürü ve Ahlak Bilgisi Dersi: Zorunlu mu Kalmalı Yoksa Seçimli mi Olmalı? TÜBAV Bilim Araştırma Dergisi, 2(2), 2009, 243–56. (The Religious Culture and Ethics Course: Should it be Optional or Compulsory?).


we have no filed cases representing these radical secularist groups and individuals in society, this does not mean that they do not exist.14

Another important point is that the Diyanet uncompromisingly asserts that the Alevis are not a different identity to be recognized. Yet the Alevi community possesses a self-image and self-understanding that it does represent a different sect within Islam with its own particular symbols, rituals, and consequent demands, such as the public recognition of the cemevi (Alevi meeting place) as a place of worship. Nevertheless, the Diyanet constantly emphasizes that the Alevis belong to the same religious tradition as Sunni Islam and that the cemevi cannot be recognized as a place of worship.15

In a similar vein, the Diyanet also emphasizes that compulsory religious education, following the revised and reformed curriculum, now provides the child with adequate knowledge about Alevism, whereas the Alevi community maintains its demand for noncompulsory religious education.16

This ongoing conflict between the religious establishment (the Diyanet and its supporters) and the Alevi community can also be read as a sign that the republican establishment in Turkey does not want to lose control over the religious and cultural practices of its citizens. In spite of the fact that the military junta tried to justify the constitutional status of compulsory religious education by references to Western European democracies and Atatürk’s secularism, the basic motive behind these polished scenes has been establishing an authoritarian system of social and political control. Hüseyin Atay, a professor of theology who has written a very influential report on the necessity of compulsory religious education and its compatibility with the principle of secularism, has provided a very good example of this motive. According to Professor Atay,

14 A recent campaign against compulsory religious education initiated by a trade union organized among school teachers and other workers in the educational sector has brought together members from Alevi and non-Alevi groups. See (Online]. Available at: http://demokrasiveozgurluk.org/v1/genclik/egitimsenden-zorunlu-din-derslerine-karsi-kampanya.html (accessed 11.15.2009).

15 Public recognition of the “cemevi” as a place of worship would not only mean recognizing Alevi identity, but would also result in yielding material benefits to the Alevi community, such as reduced payments for expenses like electricity or water, or benefits shared by mosques and recognized churches and synagogues.

16 The Justice and Development Party (AKP) government’s current attempts to bring together columnists, academics, leaders of the Alevi community, and theologians and members of the Diyanet in a series of workshops to find ways of settling the public disputes originating from Alevi demands is called “the Alevi opening.” This terminology, I think, reveals the fact that the existing system of religion-state relations is “closed” to the demands of the Alevis. I believe this implication is reflected in the words of many prominent members of the community of religious scholars in their emphasis on the need for further reforms in the curriculum to meet Alevi demands. See for instance R. Kaymakcan. AİHM Din Dersi Kararı Nasıl Anlaşılmalı?Dem Dergi, Yıl:1, Sayı:2, 60–62. (How Should the ECHR Decision on Religious Education be Understood?)


[Turkish] youth are under the influence of two negative mentalities. One is the impact of a narrow and blunt conception of religion, science, and thought, reminiscent of that of the 17th and 18th centuries. The other is the influence of a 19th century anti-religion mentality. Fearing even the possibility of a slight compromise disfavoring religion, the former recognize freedom only to those who share the same religious ideas. The latter take sides with every thought that is against religion. … Our instruction, especially our instruction of religion, cannot be reconciled with the needs of our times and the realities of our country. The solution we need is to teach the pure, clean, true religion which lies outside these two mentalities that misunderstand religion on one hand, and are hostile to religion on the other.17

This motive of the 1980 military coup’s leadership and its supporters—establishing authoritarian social and political control over society—has become increasingly evident as the cultural and religious plurality of Turkish society has unfolded and as domestic and international pressure for further democratization have increased. Although the recalcitrance of the Justice and Development Party’s (AKP) current political leadership toward this pressure for further democratization can be understood as resulting from its conservative background, it seems also to be trapped by the now-famous problem of the ban on women’s headcoverings in higher education.

The Ban on Women’s Headcovers in Higher Education: A Turkish Peculiarity?

In December 1988 the Turkish parliament passed a law stipulating that “[i]t is compulsory to show up in contemporary attire in the institutions of higher education, in classrooms, laboratories, clinics, policlinics and corridors. It is permissible to cover shoulders and hair with a scarf or turban for reasons of religious belief.” The former leader of the military junta, who became president after the approval by referendum of the 1982 Constitution, filed a case against this law, arguing that it was unconstitutional. He claimed it violated not only the fundamental and immutable principle of secularism mentioned in Article 2 of the Constitution and protected by Article 4, but also other constitutional provisions such as Article 10’s provision of equality before the law, Article 24’s promise of freedom of religion, conscience, and conviction, and Article 174’s protection of the modernizing reforms made during Atatürk’s single party rule. In 1989, the Turkish Constitutional Court (TCC) issued a verdict in accordance with this position and established a very important

17 Cited in M. Günaydın. Din Kültürü ve Ahlâk Öğretiminin İlköğretim ve Liselerde Zorunlu Ders Olmasına Prof. Dr. Hüseyin Atay’ın Katkıları. Dinbilimleri Akademik Araştırma Dergisi, IX:1, 2009, 295. (The Contributions of Prof. Dr. Hüseyin Atay to the Formation of the Compulsory Status of Instruction in Religious Culture and Ethics Courses.)


precedent based on arguments of crucial importance that still impact the issue of women’s headcoverings in Turkish higher education institutions.

According to the TCC, the portion of the 1988 law reading “for reasons of religious belief” contradicts the principle of democratic rule of law and secularism because “national sovereignty is the basis of democratic structure.” Thus a regulation heavily emphasizing the necessities of religion cannot be democratic. The Court states, from a secular perspective, that

[o]nly a secular state is a democratic state … Secularism is connected to the requisites of free thought that lie outside metaphysical thought. It has impact on individual and social levels, as well as in the affairs of the state. Secularism, thus, makes it necessary to fulfill the requisites of reason and science in regulating individual and social life.18

Another argument of the TCC is that the freedom to cover the “shoulders and hair for reasons of religious belief” contradicts the principle of equality before the law because.

From the perspective of the Constitution, religion is not a precondition to enjoying certain rights, for those who believe in various different religions, and for those who do not believe in any religion, it is permissible to express their religion and belief within the limits of freedom of religion and conscience … In a secular state, which treats every citizen as equal regardless of their belief in religious matters, differences of religion or denomination cannot be a reason for discrimination. In the regulation against which the case is filed, however, there happens to be a recognition of a privilege to the allegedly Islamic headcover … Recognizing the freedom to cover shoulders and hair with a headcover and turban for reasons of religion, a way of giving directions, is in a sense an imposition. Forcing persons to get dressed in this or that way to cover their heads would create a privilege from the perspective of those who belong to different or even to the same religion.19

All in all, in its initial verdict on the headcover issue, the TCC decided that the recognition of freedom of dress, including the headcover for women in higher educational institutions, is unconstitutional. The importance of this decision lies in the fact that the Court reiterated it on other occasions. In 1989, for instance, parliament passed another law stipulating that “[i]n institutions of higher education, freedom of dress is recognized, provided that the attire does not contradict the

18 M.S. Gemalmaz. Türk Kıyafet Hukuku ve Türban. Istanbul: Legal, 2005, 1138. For a full text of the TCC decision of E.1989/1, K. 1989/12: see 1129–43. Also available at: http://www.anayasa.gov.tr/eskisite/KARARLAR/-IPTALITIRAZ/K1989/K1989-12.htm (accessed July 18, 2011).

19 Gemalmaz (2005), 1139–40.


prevailing status law.” This time a case with arguments similar to those in the aforementioned case was filed by the main parliamentary opposition party (the Social Democratic Populist Party). In this case, however, the TCC decided that the 1989 law was not unconstitutional, but that the term “freedom of dress” does not include freedom to cover the head and shoulders, that is, “headcover or turban freedom.” With this decision, the TCC breached the limits of its competency as a judicial organ, which entitle it only to settle disputes over the constitutionality (hence, the legal validity) of status laws, and functioned more like a legislative body, regulating the meaning of the notion of freedom.

Ever since, women’s headcovering has been a major issue concerning freedom of religion or belief in Turkey. The case of Leyla Şahin v. Turkey in the European Court has internationalized the problem, resulting in a holding that the headscarf decisions of the Turkish courts do not violate the ECHR.

The European Court’s Şahin decision gives rise to two interesting points. First, state acts that limit religious rights and freedoms must be prescribed by law. In the Turkish instance, however, it is the TCC’s 1991 decision that restricts freedom of dress in higher education institutions, not statutory law. But the European Court decided that the term “law” includes not only statutory law but high court decisions as well. This understanding of the term “law” may not be incorrect, but in light of the TCC decisions regarding restrictions on freedom of religion or belief, the European Court’s broad definition of “law” to include the TCC decision is disputable for some important reasons.

One reason is that the TCC breached its competency as a judicial organ and attempted to function as a legislative organ. But more importantly, the TCC set undefined limits on the freedom of dress for all individuals, including women wishing to wear the Islamic headcovering. Reiterating the evaluations made in its 1989 decision, the TCC concluded in 1991:

Consequently, either for reasons of religious belief or for other reasons, the dress in institutions of higher education must not contradict the modern situation. In the Constitutional Court decision [of 1989] mentioned above, this point has been explained as “Either religious or not, dress that is against being modern and contradicting the regulations stipulated by the revolutionary codes cannot be seen as adequate.”20

The crucial point here is that, before going into a detailed argument on whether the ban on women’s headcoverings in higher education institutions is justified, as the TCC and the European Court say it is, we must first determine whether the ban is “prescribed by law.” The European Court held that the 1989 TCC decision is “law” limiting a type of dress, the headcover. This imbues the TCC with pseudo-legislative powers that could enable future restrictions on other forms of dress

20 Gemalmaz (2005), 1163.


which the TCC does not see fit for the modern situation. Together with Danchin, one may think that

[s]ince the earliest days of the [r]epublic, Turkey has had laws and decrees requiring “contemporary costume” in the public sphere. Atatürk himself signed a 1923 decree on dress, the Hat Law of 1925, and the Law Relating to Prohibited Garments of 1934 that prohibited religious clothing from being worn outside of worship and laid down dress guidelines for students and civil servants.21

Nevertheless, the fact is there has not been, nor is there yet, statutory law stipulating women’s dress in public or higher education institutions during or since Atatürk’s rule, except the TCC decision of 1991. It should also be heavily emphasized that the ban on women’s headcoverings in Turkish higher education institutions, resulting from the TCC’s so-called law, was put into practice after the February 28, 1997 military intervention which resulted in the resignation of the Erbakan government.

Professor Carolyn Evans provides further criticism of the European Court decisions and, by association, the TCC decisions. Writing on the European Court decisions in Dahlab v. Switzerland and Şahin v. Turkey, she argues that the contention that freedom to veil is inconsistent with “gender equality” cannot be sustained. For Evans,

This is a serious issue that deserves proper consideration, but it did not receive such consideration by the Court in either case. In both cases the Court made the assertion that wearing the veil is incompatible with gender equality, but in neither case did it flesh out the reasoning behind this statement beyond saying that it “appears to be imposed on women by a precept which is laid down in the Koran.” The way in which the word “imposed” is used here is loaded. Most religious obligations are “imposed” on adherents to some extent and the Court does not normally refer to the obligations in such negative terms. It is not clear why wearing headscarves is any more imposed on women by the Qur’an, than abstinence from pork or alcohol is imposed on all Muslims, or than obeying the Ten Commandments is imposed on Jews and Christians. Both Ms. Dahlab and Ms. Şahin lived in societies where there was no imposition by the state that required women to wear particular religious clothing—indeed, it is clear from the cases that the governments in question were unsupportive of the wearing of Muslim clothing. In this circumstance the adoption of the headscarf by educated, intelligent women might be better described as voluntary compliance with what they perceived to be a religious obligation.22

21 Danchin (2008), 26.22 C. Evans. The ‘Islamic Scarf’ in the European Court of Human Rights. Melbourne

Journal of International Law, 4, 2006. Available at: http://www.austlii.edu.au/au/journals/MelbJIL/2006/4.html (accessed March 15, 2012).


Another point is that the European Court’s “justification for banning the headscarf … is incompatible with a tolerant, secular society that respects the rights and freedoms of others.” According to Evans,

there is no evidence that Ms. Şahin was intolerant of the views of others. She did not engage in any behavior that involved attempting to force her views on others. She was not guilty of any disciplinary offence at university other than those related to clothing and she did not belong to any of the fundamentalist groups within Turkey. At some level, the Court seems to be saying that anyone who is sufficiently serious about advertising the fact that they are Muslim must be, by definition, intolerant. Of course, the Court does not make that point explicitly, but this equating of Islam with intolerance (and Islamic woman with oppression) seems to inform the Court’s judgment implicitly.23

In Evans’ criticisms, one may easily read references to the European Court as references to the Turkish Constitutional Court. The TCC established lines of reasoning and justification almost identical to those of the European Court. One important difference, however, regards a distinction the TCC made between two types of Turkish women. Echoing the unjustified argument concerning gender equality mentioned above, the TCC draws a distinction between traditional, uneducated, and innocent women covering their heads in accordance with the traditions of rural life, and educated women covering their heads with what the TCC calls the “turban”—a symbol of political Islam. These educated women thus take aim, in the TCC’s view, at the secular foundations of the Republic.

This is a self-contradictory statement. On the one hand women wearing headcoverings are regarded as victims of an intolerant and oppressive religious practice, and on the other they are seen as bearers of a political ideology, conscious of a political project aiming at undermining secularism and establishing an Islamic state. All these attempted justifications for the ban on women’s headcoverings serve, on the contrary, to exclude from public and educational life many women who either insist on wearing the headcover as a fulfillment of the requisites of their religion or for other social and cultural reasons compelling them to don scarves or veils.

Coupled with the Turkish courts’ lack of lawmaking competence, these self-contradictory and unjustified lines of reasoning seem to be the real obstacle to realizing a fuller freedom of religion or belief, not only in Turkey, but also in the contemporary world.24

23 C. Evans (2006), 4.24 For reasons of space I refrain from going into a detailed criticism of another TCC

decision on the “unconstitutionality” of some recent amendments made to Articles 10 and 42 of the Turkish Constitution. It should suffice here to point out that the amendments passed by the parliament in 2008 with 411 out of 550 possible votes reinforced the meaning of equality before the law (Art. 10) and prohibited any unlawful restriction on the right to education (Art. 42). Although the amendments’ intention mentioned in the justification


Conclusion

Freedom of religion or belief entails three interrelated dimensions. The first regards the obligation of the state to refrain from establishing an official religion. Replacing the word “Congress” with “the State,” we may recite the US Constitution’s First Amendment: The state “shall make no law respecting an establishment of religion.” The second dimension, also implied in the US Constitution’s First Amendment, as well as in other national and international legal documents, concerns the free exercise of religion and belief. The third dimension is the requirement that state and public authorities and private citizens respect differences in religion or belief.

Concerning the first dimension, the constitutional and legal status of the Diyanet seems to violate the requirement that the state refrain from establishing a state religion. The constitutional status of the Diyanet as a public administration unit with the task of maintaining national unity and solidarity, along with its effective legal protection provided in Article 89 of the Political Parties Law, are not the only reasons behind this conclusion. The Diyanet is a good example of a religious establishment due to its huge public bureaucracy and its receipt of an incomparably large amount of public funds.

Perhaps the most important factor in this conclusion, however, is the suggestion that the Diyanet represents the correct interpretation of Sunni Islam and supposes that its interpretation of Islam must be recognized and internalized by all Muslims in Turkey, regardless of their personal and community sects or denominations. Thus, Alevis and Sunnis, Hanafis and Shafiis, practicing and non-practicing citizens of Turkey, must listen to and preferably follow what the Diyanet says about religious matters. In view of both the moral and legal requirements of freedom of religion or belief and contemporary requirements of multiculturalism, this state establishment of religion cannot be accepted. Disestablishment of the Diyanet as a constitutional and public organ seems to be the most adequate solution that will fulfill the requirements of religious freedom and pluralism in Turkey.

The compulsory religious education curriculum, which has been designed under the Diyanet’s heavy influence, is another practice that violates “the establishment clause.” The constitutional distinction between compulsory instruction and education “in religious culture and ethics” and other “optional” religious education cannot be sustained as a supporting ground for the ongoing practice of religious education in Turkey. There is an apparent contradiction between current practice and the requirement that the state respect parents’ religious beliefs and

stated the desire to lift the ban on women’s headcoverings, the wording made no explicit mention of the ban and, despite a clear restriction on the powers of the TCC in reviewing the constitutionality of the constitutional amendment, the TCC once again breached the constitutional limits set on its judicial competences and decided that the amendments were unconstitutional. For a detailed critical analysis of the role of TCC in Turkish politics, see L. Köker. Turkey’s political-constitutional crisis: an assessment of the role of the Constitutional Court. Constellations 17(2), 328–44.


philosophical convictions. Thus, it seems necessary for Turkey to opt to eradicate religious education’s compulsory status and establish at least some form of optional religious education.

The ban on women’s headcoverings in institutions of higher education in Turkey, in view of the criticisms mentioned above of both the TCC and European Court decisions, seems to violate the requirement that the state not prohibit or interfere with the free exercise of religion. The unjustified ban on women’s headcoverings in Turkey violates:

• Article 38/2 of the Lausanne Treaty. It also contradicts the law in a more general sense. According to Article 37 of the treaty, “Turkey undertakes that the stipulations contained in Articles 38 to 44 shall be recognized as fundamental laws, and that no law, no regulation, nor official action shall conflict or interfere with these stipulations, nor shall any law, regulation, nor official action prevail over them.”

• Article 42 of the Turkish Constitution stipulating that no one can be deprived of the right to education. It also breaches Article 13 of the Turkish Constitution stating that “[f]undamental rights and freedoms may be restricted only by law.” There is no law restricting student attire in higher education institutions.

• The moral and legal principle of equal respect to which every human being is entitled in her own sphere of religion or belief.

• It seems to be the case that the current state of affairs in Turkey regarding the issues of religion, education, and the Constitution contradicts the most important dimensions of freedom of religion or belief. The urgent need for constitutional reform is waiting still to be realized so that Turkey can fulfill not only its international legal obligations, but also eradicate internal conflicts in its legal system, and perhaps, more importantly, become a country with full recognition of human freedom in conformity with the moral requirements of contemporary multiculturalism.

Chapter 9

Islamic Religious Education in Bosnia and Herzegovina: Between

Coexistence and Segregation1

Önder Çetin

Introduction

Four hundred years of Ottoman rule in Bosnia led to Bosnian Muslims adopting the Islamic thought and practice of the Ottomans, particularly the Hanafi legal school of thought (fiqh) and Maturidi theological school of thought (kalām).2 Thus, when the Austro-Hungarian Empire claimed Bosnia in 1878, it meant not only a new ruling authority for Bosnian Muslims but also “an upheaval of the fundamental civilizational structures of their (lives).”3 However, it also provided Bosnian Muslims with their own religious leadership by establishing an Ulama Council consisting of four ulama, with the appointment in 1882 of Mustafa Hilmi Hadžiomerović as the first Reisu-l-Ulama (Head of the Ulama) and the chairman of the Council.

Established in 1881 by the Austro-Hungarians as a response to the petition of Bosnian Muslims, the Ulama Council represented a turning point in the detachment of Bosnian Muslims from Islamic authority in Istanbul.4 Despite

1 This chapter was originally a part of Önder Çetin’s Ph.D. research on the role of Bosnian ulama in the rebuilding of inter-communal relations in Bosnia and Herzegovina. He wishes to thank the Dutch Ministry of Education, Culture, and Science for providing support for this research through its Huygens Scholarship Program.

2 For the historical process of the introduction of the Hanafi madhhab (school of thought) in Bosnia, see F. Karčić. Kako je hanefijski mezheb došao u Bosnu- interpretacija silsile hasana kafija pruščaka, Novi Muallim, 3(8), 2002, 20–25. (How the Hanafi Madhhab came to Bosnia: An Interpretation of the Silsilah od Hasan Kafi Pruščak.)

3 H. Neimerlija. Institutional Framework of Religious Unity of Bosniaks, in The IC in Bosnia: History—Structure—Mission. Sarajevo: Rijaset of IC in Bosnia, 2002, 11. For a discussion on the Austro-Hungarian rule and its initial challenges for Bosnian Muslims, see F. Karčić. The Bosniak and the Challenges of Modernity: Late Ottoman and Hapsburg Times. Sarajevo: El-Kalem, 1999.

4 For discussions on the Rijaset and Reisu-l-Ulema institutions, see O. Nakičević. Istorijski Razvoj Institucije Rijaseta. Sarajevo: the Riyasat of the IC, 1996, 45–58; and F.


having their own religious hierarchy, Bosnian Muslims continued to struggle for autonomy in educational and waqf (endowment) affairs over the following three decades. Their experience as components of the First Yugoslavia (1918–41) and the Independent State of Croatia (1941–45) required a struggle not only for the preservation of this autonomy but also for their distinctive identity in relation to two nationalisms, primarily directed from Zagreb and Belgrade.

Following the initial repressive state policies during the first decade of Tito’s Yugoslavia (1945–92), where sharī’a courts, mektebs,5 and all medresas6 were abolished, excepting Gazi Husrev-beg in Sarajevo, the 1970’s brought a relatively free atmosphere. This permitted a flourishing of manifestations of Islamic revival, such as the construction and re-construction of mosques,7 increasing numbers of Islamic publications, the circulation of periodicals of the Islamic Community8 (Islamska Zajednica),9 and Bosnian Muslim students’ attendance at Islamic faculties in the wider Muslim world. However, the trials of 13 members of the Young Muslims (Mladi Muslimani) organization in 1983 showed that Muslims enjoyed religious freedom only within the circle drawn by Tito’s regime, and only then under the surveillance of the secret police service UDBA (State Security Directorate).

Democratization and political decentralization in the early 1990s enabled the flowering of Islamic educational institutions. Pursuant to recent debates on Euro-Islam (the European experience of Islam), many have referred to the Bosnian Islamic experience as having been shaped by autochthonous European

Šeta. Reis-ul-uleme u Bosnia i Hercegovini i Jugoslaviji od 1882. do 1991. Godine. Visoko: PGD ISKRA, 1991.

5 Children between the ages of seven and 15 years obtained basic religious education in mektebs, which were usually a separate room within a mosque.

6 Although the Arabic term medresa refers to educational institutions in general, in the Bosnian context it particularly denotes religious schools at the secondary and high school level.

7 Perica places the number of sites of worship during this period at 800, while Ramet gives the total number of mosques and mesdžids in the early 1980s as 2,700. Karčić notes 1,701 places of worship in Bosnia in April 2002. See V. Perica. Balkan Idols: Religion and Nationalism in Yugoslav States. Oxford and New York: Oxford University Press, 2002, 78; S.P. Ramet. Balkan Babel: Politics, Culture and Religion in Yugoslavia. Boulder, San Francisco and Oxford: Westview Press, 1992, 167–8; F. Karčić. Karčić, F. Islamic revival in the Balkans. Islamic Studies, 2–3, 1997, 570.

8 Karčić identifies the 1970s as a turning point for a revitalized Islam in Bosnia, adding that “the most important promoter of the revitalization of Islam was the biweekly (periodical) Preporod (Renaissance), (which) started to be published in September 1970.” During the same decade, other important journals were Glasnik Vrhovnog islamskog starješintsva/Rijaseta (The Herald of the Supreme Islamic Authorities/Rijaset in Yugoslavia) Takvim and Educata Islame. See F. Karčić (1997), 571–2.

9 Hereinafter referred to as IC. The IC has been the official religious institution of Bosnian Muslims since its establishment in 1882.

Islamic Religious Education in Bosnia and Herzegovina 167

Muslims’ encounters with modernity. This chapter focuses on a two-fold debate on religious education in Bosnia since the early 1990s. Following an account of traditional Islamic educational institutions that shaped Bosnian Islamic thought and practice, the first part of the chapter examines a confessional approach to religious instruction, which was introduced in Bosnian public schools in 1994. The debate on this issue has evolved between claims of segregation based on religion and defense of religious freedom. The second part of the chapter deals with the debates surrounding the Culture of Religions (Kultura religija) course that the international community is attempting to introduce into Bosnian schools. I will identify the main arguments presented for and against these two types of religious instruction. I will then present conclusions on the lessons that could be derived from the Bosnian Muslim experience, with particular focus on religious education in the development of a multicultural consciousness and a “European experience of Islam.”

Islamic Education in the Socialist Period

As the precursor to the constitution of socialist Yugoslavia, Foča documents granted all prospective citizens of socialist Yugoslavia equality regardless of their political, religious, national, or other attachments in February 1942.10 The 1946 Constitution of the Federal National Republic of Yugoslavia, which was based on the principle of the separation of church and state, provided for freedom of conscience and religious belief, including training of religious clergy. Specifically, clause (e) of the document’s 25th Article stated that “theological schools for the training of priests are granted freedom to work, provided they are subordinated to general state control.”11

However, in accordance with general policy aimed at suffocating religion by relegating it to the private sphere, the state tried to marginalize religious education, as well as the influence of religious communities in general, by using several instruments, from prosecution to economic deprivation and social discrediting. Mektebs were closed down, and out of some 40 medresas in the former Yugoslavia, only Gazi Husrev-Beg Medresa in Sarajevo was permitted to remain for the training of imams and khatibs (preachers). Furthermore, the IC

10 L. Geršković. Dokumenti o razviju narodne vlasti. Belgrade, 1948, 31. (Legal and Factual Position of Confessional Communities in Yugoslavia); cited in I. Lazić. Pravni i činjenici položaj konfesionalnih zajednica u jugoslaviji, in Vjerske Zajednice u Jugoslaviji, edited Z. Frid Zagreb: NIP Binoza, 1970, 52.

11 M. Broćić. The position and activities of the religious communities in Yugoslavia, with special attention to The Serbian Orthodox Church, in Religion and Atheism in the U.S.S.R. and Eastern Europe, edited by B.R. Bociurkiw and J.W. Strong. London: Macmillan, 1975, 355.


lost huge amounts of economic resources with the adoption of laws from 1945 to 1958 that nationalized religious properties.

With the adoption of the 1953 Law on Religious Communities in Yugoslavia, however, religious communities were allowed “to organize religious classes on their own premises and outside the working hours of compulsory state-run schools.”12 This “de-escalation” period, as Mojzes defines it,13 brought gradual progress in the educational activities of the IC, which were regarded as a “key category of … religious life.”14 Mektebs were not only considered “the basic educational institution of the Islamic Community,”15 but also a symbol of Bosnian Islamic identity and the continuity of Islamic education and upbringing.16 However, although the IC organized mektebs mainly during summer holidays and Ramadan, in accordance with the aforementioned political obligation,17 it confronted several problems, including financial, political, and administrative issues and a low level of mekteb attendance.18

The IC introduced several initiatives to improve religious instruction at this basic level. In 1978, for instance, three levels of courses were introduced in the mektebs; they were scheduled to be taught two or three times a week synonymously with the terms of public schools.19 But although this period has generally been analyzed in

12 D. Novaković. Školstvo Islamske Zajednice. Niš: Junir, 2004, 47–8. (The School System of the IC); cited in Š. Macháček. European Islam and Islamic Education in Bosnia-Herzegovina. SÜDOSTEUROPA 55, no. 4, 2007, 398.

13 F. Singleton. Twentieth-Century Yugoslavia. New York City: Columbia University Press. 1976, 203.

14 Izvještaj o radu VIS-a u 1978/79. godini. , Glasnik 17, no. 4 (1979): 350. (Report on the Activities of the Supreme Islamic Council in 1978/79.)

15 See, the 2nd clause of the Rulebook on Mekteb and Mekteb Education, (Pravilnik o Mektebu i Mektebskoj Nastavi), adopted on August 28, 2007. Available at: http://www.rijaset.ba/index.php?option=com_content&view=-article&id=1695&Itemid=150 (accessed 18 March 2004).

16 See for instance, I. Begović. Mektebi i Mektepska Nastava. Novi Muallim 1, No. 2, 2000, 78–80.

17 Novaković (2004), 122 fn. 4.18 See for instance, Izvještaj, o radu VIS-a u 1967. godini, Glasnik 31, no. 1-2-3,

1968, 121–2 (Report on the Activities of the Supreme Islamic Council in 1967). Even two decades later, this problem of attendance was again reported in the Annual Report of the IC for 1986. See Izvještaj o radu VIS-a Islamske Zajednice u SFRJ za period maj 1985–maj 1986, Glasnik 59, no. 3, 1986, 328–30. (Report on the Activities of the Supreme Islamic Council of the IC in Yugoslavia for the period of May 1985–May 1986.)

19 Novaković (2004), 122.


terms of its manifestations of Islamic revival,20 the IC faced fundamental problems into the 1980s, such as lack of space and the authorities’ attitudes.21

The second level of Islamic education in Bosnia has been the medresa. The current head of the IC, Reis’u-l-Ulema Cerić, notes that the “spirit of the Gazi Husrev-beg Medresa in Sarajevo” has been considered to “represent the milestone to the institutionalized learning of Islam in Bosnia (and) Herzegovina.” The mission of medresas was explicitly articulated in the waqfiyya (rulebook of endowment) of the medresa (1537 (h. 943)) as combining “rational and traditional knowledge … as well as all other things that the custom (or time) and the place require.”22 The mentality that shaped the framework of the rulebook has not only influenced “the course of an open and progressive face of Islam in Bosnia and Herzegovina,” as Cerić stated, but has also led to several transformations of the curriculum used throughout the Gazi Husrev-beg Medresa’s “controversial history” during the Yugoslav period.23

20 The numbers of places for religious instruction and the number of participating students in 1969, 1972, and 1990 are as follows: 1,166/90,687; 1,007/80,000; 1,647/76,367. See, Izvještaj o Radu Vrhovnog islamskog starješinstva IVZ u SFRJ u Vremenu od 12.XI. 1968. do 5.XI.1969 Godine. Glasnik 33. no. 1–2, 1970, 104. (Report on the Activities of the Supreme Islamic Council of IVZ for the period of November 1968–69); Izvještaj Vrhovnog islamskog starješinstva Islamske Zajednice u SFRJ u Sarajevu u radu vremenu od 28. decembra 1971. godine do 24. decembra 1972. godine. Glasnik no. 36, no. 3–4, 1973, 163–5 (Report on the Activities of the Supreme Islamic Council of IVZ for the period of December 1971–72); Izvještaj o Radu Vrhovnog Starješinstva (Rijaseta) Islamske Zajednice u Jugoslaviji. Glasnik 52, no. 5, 1990, 121. (Report on the Activities of Rijaset.)

21 For instance, in the bi-weekly magazine of the IC, Preporod (Renaissance), dated October 1, 1987, it was stated that it is “almost impossible to get a permit for the construction of religious buildings in urban areas.” It added that, while “in the old neighborhoods there are religious objects for small number(s) of children for religious education, in the new ones there (are) not any religious objects for children.” See, A. Jukić. Na početku vjeronaućne godine. Preporod, 18(19/411), 1987, 1. Indeed, this problem had already been emphasized in the annual report of the Islamic Supreme Council for the period of May 1986–May 1987. It highlighted the “insufficient understanding of the responsible factors for the creation of new points for religious instruction.” See Izvještaj o radu VISA-a u periodu maj 1986–maj 1967.Glasnik 50, no. 3, 1987, 403. (Report on the Activities of the Supreme Islamic Council in the period of May 1986–May 1987.)

22 M. Cerić. History of the Institutionalized Training of Imams in Bosnia and Herzegovina, in The Study of Religion and Training of Muslim Clergy in Europe: Academic and Religious Freedom in the 21th Century, edited by W.B. Drees and P.S. Koningsveld. Leiden: Leiden University Press, 2008, 285. Translation emphasis is Cerić’s.

23 Enes Karić. Islamsko mišljenje u BiH u XX stoljeću. Sarajevo: El-Kalem, 2004, 57. As a direct consequence of the ruling elites’ aim to control the teaching and learning process of Islam in Yugoslavia, Gazi Husrev-beg Medresa faced a series of difficulties, from general funding to the well-being of professors to poor living standards for students in the boarding school. This led many professors to leave the medresa. See Karić (2004), 60. The medresa could not issue grades during this period and students could not pass their exams, which resulted in there being no graduates from 1948 to 1954. For a list of graduates


The Gazi Husrev-beg Medresa adopted two main revisions to its curriculum, first during the 1961–62 academic year, and again in 1982–83. The former revision transformed the medresa into a five-year schooling program, which enabled graduates of eight-year elementary schools to register. It also strengthened the vocational character of the school by reducing the number of non-religious courses from 17 to nine. The second revision, in contrast, introduced new non-religious subjects within a four-year educational program. It should be noted that the medresa’s students went on strike on January 11, 1972 demanding the introduction of new subjects, as well as the reorganization of the grading system and improved boarding conditions.24

Apart from Gazi Husrev-beg Medresa, which was the core institution for training Muslim religious officials (imam, khatib, muallim, wa’iz), the IC had other medresas in Yugoslavia outside Bosnia. These included Alaudin Medresa in Priština, Kosovo and Isa-beg Medresa in Skopje, Macedonia. The former started to function at the elementary level in the 1951–52 academic year as the first medresa with Albanian as the language of instruction. It later introduced high-school level education in 1962–63.25 Isa-beg Medresa opened in 1984 when the political crisis began seriously threatening the political stability and integrity of Yugoslavia.26 There was a total of 820 students registered in these three medresas in 1991.27

The third and highest level of Islamic education in Bosnia—and Yugoslavia in general—commenced with the establishment of the Faculty of Islamic Theology in Sarajevo in 1977. The faculty was founded solely as a “domestic project” by the decision of the Supreme Council of the IC of the Socialist Federal Republic of Yugoslavia and by the donations of local Muslims, particularly through alms

from 1930 to 2000, including a separate list of the graduates of the girls’ section from 1938 to 2000, see Traljić et al, Gazi Husrev-Begova Medresa u Sarajevu: 450 Generacija. Sarajevo: Gazi Husrev-begova Medresa, 2000, 91–120.

Material conditions were improved to a large extent in the academic year of 1976–77, when the Medresa was transferred to the premises of Ðulagin Dvor, near Gazi Husrev-beg`s (Begova) Mosque. The Statute of the Medresa was also adopted in the same year.

24 The demanded subjects were logic, psychology, mathematics, physical education, and one European language. See Karić (2011), 70. For more information on this strike, see Informacija o štrajku učenika Gazi husrevbegove medresa u Sarajevu in Glasnik 35, no. 3–4 1972, 198–203. (Information about the strike of the students of Gazi Husrev-beg Medresa in Sarajevo.) The subjects that were introduced through the 1982–83 revision were Turkish, English, defense and protection, physical education, domestic science (in the girls’ section), philosophy, and organization of the Islamic Community.

25 See R. Zekaj. The Development of the Islamic Culture among Albanians during the XXth Century. Tiranë: The Albanian Institute of Islamic Thought & Civilization, 1997, 85–93. Available at: http://www.iiu.edu.my/deed/quran/-albanian/islamic-culture.doc (accessed: July 18, 2011).

26 Zekaj (1997), 75–80.27 Karčić (1997), 571.


(zakat and sadaka).28 The faculty largely eliminated the need for Muslim students to continue graduate studies abroad. Previously, those who graduated from their secondary education in Gazi Husrev-beg Medresa had typically continued their religious higher education at Al-Azhar in Cairo. Thus, the newly established faculty signified the crystallization of Bosnian Islamic thought.29 The functioning of the faculty was verified by the Ministry for Education, Science, Culture, and Physical Education of the Republic of Bosnia and Herzegovina on December 5, 1991, pursuant to the 17th Article of the Law on University Education.

At the secondary level of Islamic education, six medresas were opened during the Balkan War that erupted in 1992, besides the previously re-opened Gazi Isa-begova Medresa in Novi Pazar, Serbia (operating from the fifteenth century to 1946 and from 1990-present): Dr. Ahmed Smajlović Medresa in Zagreb (1992), Osman ef. Redžović Medresa in Čajangrad, near Visoko (1992), Behram-begova Medresa in Tuzla (1626–1949/1993), Medresa Džemaludin Čaušević in Cazin (1867–1920/1993), Elči Ibrahim-pašina Medresa in Travnik (1705–1943/1994), and Karađoz-begova Medresa in Mostar (1557–1918/1995).30 Most of these medresas were re-opened after being closed down by the socialist regime. Despite students being unable to return to the besieged Sarajevo, the medresas re-opened during the Balkan War, mainly as the result of regional initiatives rather than because of a systematic program of IC leadership in Sarajevo.31 The statuses of the six medresas within the borders of Bosnia and Herzegovina were later unified by the adoption of the “Medresa Statute” by the Council of the Islamic Community on January 5, 1997.32

Two important changes accompanied this development. One was the revision in 1993–94 of medresa curriculum to include general subjects from the natural sciences-mathematics group,33 which provided graduates admission to faculties to

28 In the pages of Glasnik and Preporod during the 1970s one can find special columns for donations made for the construction of the faculty. For the material support of Islamic foreign organizations, see Novaković (2004), 101, fn. 4.

29 To mention just a few graduates of the faculty: Enes Karić acted as the former dean of the Faculty of Islamic Studies; Adnan Silajdžić and Rešid Hafizović are still professors at the faculty, and Muharem Omerdić is the current director of the Department of Education of the Islamic Community.

30 This can be considered part of the process of regaining rights of religious freedom which were retracted during Tito’s Yugoslavia, as explicitly expressed by Zijad Ljevaković, the current Director of the IC, in our interview conducted on June 6, 2008 in Sarajevo.

31 V. Fazlović. Rad i Uloga Medresa Danas. Novi Muallim 3(8), 2002, 99. (Work and Role of Medresa Today.)

32 H. Nejmerlija. Statute medresa. Glasnik, 59(3–4), 1997, 299–319. (Medresa Statute.)

33 For instance, the new curriculum in Gazi Husrev-beg Medresa from the 1st to the 4th grades included these subjects: Qira’at, akaid, tefsir, hadiths, fiqh, akhlaq, history of Islam, Islamic calligraphy, imamet-muallimat; Bosnian, Arabic, Turkish and English languages; history, geography, sociology, biology, psychology and logic, pedagogy and methodology,


which they had been denied admission during the socialist era. The second change concerned the composition of medresa students; families preferring to send their children to medresas now favored “moral,” rather than vocational, education.34

Medresas adopted further curriculum changes in 2004–2005, which reduced the number of subjects and harmonized existing curriculum with that of secondary level public schools by reducing religious subjects to one-third of the curriculum. The new curriculum also provided students the option to enter several faculties besides Islamic Sciences, either at the Faculty of Islamic Sciences or the newly-opened Islamic Pedagogical Academies.

The Faculty of Islamic Theology, referenced above, was the only Islamic educational institution at the university level during the Yugoslav period. This new era for Bosnian religious education that commenced in the early 1990s not only brought both qualitative and quantitative changes to the structure of the Faculty of Islamic Theology, but it also saw the establishment of two new academies for training religious instructors for state schools. New programs were added to the existing academic structure of the Faculty of Islamic Theology. These included the Department of Religious Pedagogy (added in 1992–93), a post-graduate studies program (added in 1994–95), the Department for Training Imams, Khatibs and Muallims (added in 2006–2007), and, recently, Contemporary Islamic Studies (added in 2007–2008). Through comprehensive reforms in the 2002–2003 academic year, the program was adapted to the Bologna process by introducing a credit system and establishing chairs.35 It became a part of the University of Sarajevo in the 2003–2004 academic year.

Five-hundred fifty students have graduated from the Faculty of Islamic Theology, including 27 masters and 16 doctoral students since the faculty’s establishment in 1977. In addition, 200 full-time and 305 part-time students

and philosophy. Cited in A. Jukić. Gazi Husrevbegova medresa u periodu srpsko-crnogorske agresije i agresije bivše jna na republiku Bosnu i Hercegovinu. Glasnik, 57(7–9), 1995, 316. (Gazi Husrev-beg Medresa in the Period of Serbo-Montenegrin Aggression and Aggression of former JNA against the Republic of Bosnia and Herzegovina.)

34 It was mainly ulema who sent their children to medresas during the Yugoslav period. These children were deemed ready to confront the challenges of being a medresa student and to accept the only accompanying future career opportunity: being an imam, vaiz, muallim or muallima. But the new curriculum eliminated this disadvantage by providing students the opportunity to choose other faculties. Furthermore, Ljevaković argues that families today mainly choose the medresa because of the spiritual atmosphere which they hope will protect their children from the moral degeneration in the streets. However, he also specifies that this does not equate with adopting an Islamist worldview, adding that some of the girls who wear hidjab during their education stop wearing it after graduation. Interview with Z. Ljevaković, June 6, 2008, Sarajevo.

35 Available at: http://www.fin.ba/en/uvod.html (accessed July 18, 2011).


registered at the faculty at the undergraduate level and 75 students registered for post-diploma programs in the 2007–2008 academic year.36

However, today the IC aims not only to educate religious scholars and imams for Bosnia and Herzegovina but also to be an intellectual and professional resource in the debates on so-called Euro-Islam, or the European experience of Islam, as well as an active participant in articulating answers to the current problems that Muslims face in Europe. As IC official Dževad Grabus stated in a recent document, the IC’s main motivation is that “with its centuries-long experience in the area of religiously educating the imams of the Islamic Community, Bosnia and Herzegovina could be an example of how to organize studies for imams in many European countries.” Grabus mainly argued the importance of an emic approach, that is, the teaching of Islamic subjects “by Muslims who are very strong experts in that subject, but also by people who believe in the doctrinal principles of Islam as a religion.” This indirectly presented the Faculty of Islamic Theology as a new European Al-Azhar, recalling the current practice in western European countries of establishing Islamic theology departments at state universities.37

The faculty strengthened its collaboration with some universities in Western Europe38 and established an Islamic Studies Diploma Program, which oriented itself mainly towards non-Muslims via its English-language track. The diploma program will be offered for the tenth time in 2012. More than 130 students have participated thus far, including officials of foreign embassies and other international organizations in Bosnia and Herzegovina and Masters and doctoral students.39 This further bolstered the Bosnian Islamic leadership’s attempts to position Bosnia as the new center of Islamic teaching in Europe. Cerić argued that it “is time for Europe to move from pre- to post-medresa institutions of Islam, whereby the learning and teaching of Islam will have an official face approved by the procedure of ijazat al-tadris (licentia docendi).” He also referred to Bosnia’s “five centuries of institutionalized Islamic learning” in explicitly specifying Bosnia and Herzegovina as “a paradigm for the future Gazi-Husrev-bey University, which trains imams and khatibs for Muslim-European integration with a special emphasis on the role and function of Islamic institutions in the secular state.”40 However, Cerić’s vision of

36 Available at: http://www.fin.ba/index.php?option=com_content&view=article&id=447 (accessed March 15, 2012).

37 D. Grabus. Higher Islamic Education in Bosnia & Hercegovina, 10.38 The faculty has either completed or is in the process of negotiating a series of

Memorandum of Understanding Agreements with universities in Central and Western Europe. It completed agreements with the University of Vienna on November 4, 2006 and Evangelisch-Theologische Fakultaet of the University of Tuebingen on November 7, 2007, and is currently negotiating with the Oxford Center for Islamic Studies.

39 These data were provided by the co-organizer of the project, A. Alibašić, on June 9, 2008 in Sarajevo. Alibašić is a professor at the Faculty of Islamic Theology and Head of the Administrative Committee of the Gazi Husrev-beg Library of the IC in Sarajevo.

40 Cerić (2008), 292.


cultivating a “Europe-oriented” Islamic experience developed synonymously with internal conflicts centered on religious education at public schools in Bosnia.

Religious Education in Post-Yugoslav Bosnia: A Legal Framework

The signs of democratization in the early 1990s encouraged demands for religious education in public schools. In 1991 the Republic Secretariat for Education, Science, Culture, and Sports initiated preparation of a blueprint for religious education in public schools, including “traditional religions in Bosnia.” This resulted in 1994’s “Plan and Program of Religious Education for the Islamic, Catholic, Orthodox, Jewish, and Adventist Religions,” which was later ratified within the framework of the new constitution that grew out of the Dayton Peace Accords in 1995.

However, decentralization shaped by the Dayton Agreement also resulted in conflict by giving each of the ten cantons of the Bosniak—and Croat—dominated Federation of Bosnia and Herzegovina, as well as the Serb Republic, autonomy to pass its own education laws, choose the language of education, and design curriculum and textbooks. To a large extent, this makes the existence of a ministry of education at the federation level insignificant because its mission is restricted to the level of coordination.

Nevertheless, cantonal laws generally refer to or quote portions of national law, such as the district law of Brčko, which prescribes in Article 10 that “(p)rimary and secondary education within District schools shall be harmonized with the standards and principles of the educational system in Bosnia.”41 To increase centralization of educational regulations, an Education Reform Agenda was presented in late 2002 that as of June 2003 adopted the State Framework Law on Primary and General Secondary Education by the Parliament of Bosnia. The law obliged national and cantonal authorities to implement it by the end of 2003, with one of its most important aspects being the Agreement on the Common Core Curriculum.

Within this legal framework religious communities have mainly determined the characteristics of religious education themselves by preparing curriculum and textbooks and appointing teachers. While religious communities regarded these privileges in terms of religious freedom,42 the fact that religious communities enjoyed such privileges also incited criticism that the arrangement facilitated confession-based segregation beginning in primary schools.

Despite the criticism, the legal position of religious education in schools was strengthened by the adoption in January 2004 of the Law on Freedom of Religion

41 Cited in Z. Popov and A.M. Ofstad. Religious education in Bosnia, in Religion and Pluralism in Education: Comparative Approaches in the Western Balkans, edited by Z. Kuburić and C. Moe. Novi Sad: CEIR, 2006, 76.

42 Interview with M. Omerdić, Director of the Department of Education of the IC, May 27, 2008, Sarajevo.


and the Legal Position of Churches and Religious Communities in Bosnia. Article 4 of the Law, for instance, describes the right to religious education by emphasizing that it should be provided by “persons appointed to do so by an official representative of his church or religious community, whether in religious institutions or in public and private pre-school institutions, primary schools, and higher education.” Besides primarily emphasizing religious education in terms of religious freedom and authority given to religious communities, the law tasked religious communities with preventing any kind of intolerance: “Churches and religious communities shall not, when teaching religion or in other actions, disseminate hatred and prejudices against any other Churches and religious communities or its members, or against the citizens of any religious affiliation, or prevent their freedom to manifest in public their religion or belief.”43 Thus, consequent to both this legal arrangement (Art. 4 and the clause subsequently quoted) and to legal decentralization drawn by the Dayton Peace Accords, school administrations were held responsible for arranging religious instruction courses and preventing discrimination toward students who requested exemption from such courses.44 Moreover, the law does not specify alternatives to religious instruction, thus leaving the issue of students requesting exemptions to be resolved by individual school administrations.

Due to current legal decentralization, the status of religious instruction varies from one entity to another. In Sarajevo and Zenica-Doboj Cantons it is optional; in Una-Sana, Tuzla and Goražde Cantons it is compulsory if, at the beginning of the year, the student declares that he or she wants such instruction. In the other five cantons (Posavina, Central Bosnia, Herzegovina Neretva and Canton 10 (Zapadnabosanska Županija)), the typical practice is two hours per week of elective Islamic religious education. In Croat-dominated West Herzegovina, religious education is obligatory throughout a student’s schooling if he or she declares by first grade an intent to receive it. If more than 15 students of a minority community in a particular region apply for religious instruction in their own faith, the school is required to provide it.

Religious freedom and the equality of religious communities before the law in the Serb Republic (Republika Srspka) are guaranteed by Article 28 of the Serbian constitution. It gives religious communities the right to “open religious schools and perform religious education in all schools (and) at all levels of education …

43 S. Devetak, L. Kalčina, and M.F. Polzer, edited. Legal Position of Churches and Religious Communities in South-Eastern Europe. Ljubljana-Maribor-Vienna: ISCOMET, 2004, 212.

44 Referring to religious pluralism in Bosnia, Article 4 prescribes that “pupils shall attend religious classes only if the content matches their beliefs or the beliefs of their parents.” It further states that “(t)he School cannot undertake any measures or activities aimed at limiting freedom of expressing religious beliefs or respecting other, different beliefs,” adding that “(s)tudents who do not wish to attend religious education classes shall not in any way be disadvantaged compared to other students.”


in conformity with the law.”45 In the Serb Republic, Serbian Orthodox religious education is mandatory for Serb children in secondary schools but not compulsory for Bosniak and Croat students, although schools are encouraged to organize a religious education class for them if their number exceeds twenty. However, similar to the Bosniak-Croat federation, this generally depends on the school administration.

The IC and Religious Education in Public Schools in the New Bosnian Society

Following restrictive policies and material deficiencies during the Yugoslav period, reintroduction of religious instruction (Vjeranauka) into the public school system was generally considered an initiative “to return dignity to faith, to believers, and to religious education.”46 The IC interpreted the process within a two-part framework: (1) democratic rights such as freedom of religion and parents’ and children’s rights to rear and be reared in their own religion;47 and (2) contributing to a moral resurgence in the new Bosnian society.48

Considering the reintroduction of religious instruction into public schools to be “the most important spiritual-cultural event in the new history of (Bosnian Muslim) schooling,”49 the Rebuilding Assembly of the IC convened a counseling conference (savjetovanje) on February 22, 1993 based on the theme “Religion, Upbringing, and Education (Vjera, odgoj i obrazovanje).” The Ministry of Education, Science, Culture, and Sport of the Government of the Republic of Bosnia and Herzegovina, pedagogical institutes, and other entities involved in formulating the upbringing and education of children concluded the conference with six fundamental requests of the IC. These requests focused on restructuring the content and teaching cadres of

45 Before its revision in 2002, this article continued with the following clause: “The Serbian Orthodox Church shall be the church of Serb people and other people of Orthodox religion. The State shall materially support the Orthodox Church and shall co-operate with it in all fields and, in particular, in preserving, cherishing, and developing cultural, traditional, and other spiritual values.”

46 N. Grabus. The Image of ‘the Other’ in Textbooks about Islamic Religious Elementary Education in Bosnia and Herzegovina. Istanbul: Centre for Values Education (DEM) Press, 2007, 92.

47 Interview with Omerdić, 27 May 2008, Sarajevo.48 See, for instance, M. Omerdić. Nastavni Plan i Program Vjeronauke za I-II-III

Razred Osnovne Škole. (Online), 2007. (Curriculum of Religious Instruction for I-II-III Classes of Primary School.) Available at: http://www.rijaset.ba/index.php?option=com_content&view=article&id=1770:-nastavni-plan-i-program-vjeronauke-za-iiiiii-razred-osnovne-ckole-1-sat-sedmi&catid=235:vjeronauka-plan-i-program&Itemid=156 (accessed March 14, 2008).

49 N. Isanović. Vjeronauka i kultura religija: odnos i mugućnosti dijaloga. Novi Muallim 2(6), 2001, 57. (Religious Instruction and Culture of Religions: Relation and Possibility of Dialogue.)


religious education and recognizing religious instruction as an equal elective course, with the additional possibility of introducing an Islamic civilization course at the secondary level. The elective course was required to be free of Marxist ideology, based on the universal human principles, and taught in a professional manner.

Regarding the IC’s fundamental requests, it stated that it reserved “the right to outline the program and choose professional cadres for Islamic education.” It further requested that “childrearing and educational content in pre-school institutions … be adapted to the new social reality” in Bosnia and Herzegovina. Finally, the IC asked state authorities and all Bosniak-Muslim organizations to actively participate in the process and provide for its realization.50

Following the adoption of the “Plan and Program of Religious Education for the Islamic, Catholic, Orthodox, Jewish, and Adventist Religions” in 1994,51 the IC initiated a competition from April 28, 1995 to August 1, 1995 for writing primary and secondary school textbooks.52 Having been revised at the Faculty of Islamic Sciences and verified by Rijaset (the leadership of the IC) and the Ministry of Education, the first textbooks were published by El-Kalem, Rijaset’s publishing company, for the 1995–96 academic year.53 The head of the Department of Religious Education of the IC, Muharem Omerdić, stated that the content of these first textbooks was strictly in line with Ehl-i sunnah, as well as five centuries-old customs and the traditional experience of Islam in Bosnia, in addition to a “reasonable dose of patriotism.”54

However, the textbooks were subject at their publication to harsh criticism that has continued to the present day. Essentially, the criticism focuses on the threat of confessional-based segregation in pre-school education. Critics argue that religious ideas and concepts propounded in the textbooks will sharpen children’s sense of religious affiliation and hence accentuate differences among children of different faiths. Moreover, on a practical level, detractors maintain that using the textbooks in religious education discriminates against those who do not want to participate in religious classes or who are members of minority religions in an area under

50 Savjetovanje Vjera, odgoj i obrazovanje. Glasnik 51, no. 1–3, 1994, 23–4. (Counseling Conference on Religion, Upbringing and Education.)

51 Popov and Ofstad (2006), 74.52 Konskursa/Natječaja za izradu udžbenika za predmet Islamska vjeronauka u

osnovmin i sredjnim školama u R BiH. Glasnik 52, no. 1–3, 1995, 65. (Contest for the Production of Textbooks for the Subject of Islamic Religious Instruction in Primary and Secondary Schools in the Republic of Bosnia and Herzegovina.)

53 Unable to cover printing expenses, the IC received donations from humanitarian organizations in Qatar, the High Saudi Committee, the Saudi organization Al-Igasa, and the Turkish Foundation of Religious Affairs. See A. Kadribegović. Prvi udžbenici ovakve vrste u našoj povijesti. Preporod, 27(15/598), 1996, 25.

54 Kadribegović (1996), 25.


the domination of “the other.”55 These critics usually assert that religious classes should be held in mosques, according to practices in the former Yugoslavia.56

IC Responses to Critics

In responding to critics, the IC primarily emphasizes the democratic right to religious freedom confirmed by Article 4 of the Law on Freedom of Religion and the Legal Status of Churches and Religious Communities in Bosnia, and Article 9 of the Framework Law on Primary and Secondary Education.57 Illustratively, Zijad Ljevaković, Director of the Gazi Husrev-beg Medresa, framed the question in terms of rights in a democratic society rather than “the question of religion in school.” Responding to criticism that religious education in schools fuels segregation, Ljevaković emphasizes that the problem’s resolution lies with the state and school administrations, rather than with the IC. He further articulates the question as a conflict between religious communities and the “atheist-communist milieu,” by legitimizing the IC’s position in reference to its conformism throughout the last century, arguing that “the IC has proven over a hundred years that (it) tolerate(s) atheism.”58

In addition to political position-drawing on the principle of democratic rights, the IC refers to the moral aspect of religious education by looking beyond the issue’s educational characteristics and pointing out the need to “uplift (children’s) souls and refine them.”59

55 For instance, Senad Pečanin, editor in chief of the independent Sarajevo weekly Dani, wrote his personal experience in his column Sedmi Dan (Seventh Day). He described how dreadful it was for his six-year-old child to discover that a close classmate was Orthodox, and gave examples of what he interpreted as members of minority religions being pressured to choose between isolation and assimilation. See S. Pećanin. Znaš, tata, Ivo je pravoslavnik! Dani, 469, 2006. (You know, Dad, Ivo is Orthodox!.) For another critical piece related to the growing sense of religious identity, see also N. Veličković. Vjeronauka. Dani, No. 120, 1999. (Religious Instruction.) For claims of “terrible discrimination,” see V. Bačanović. Nema Vjere, nema spasavanja. Dani, no. 596, 2008. (No religion, no sleep.) Available at: http://www.bhdani.com/arhiva/ (accessed July 18, 2011).

56 J. Šarčević. Palica dominacije i moći. Dani, 598, 2008. (Domination of Stick and Power.) Related to debate on pre-school religious instruction. See also, E. Nurikić. Vjeronauka i u porodilišta! Dani, No. 556, 2008.

57 See, for instance, Hutba of Reisu-l-ulema delivered on February 2, 2007, entitled O Vjeranauci (About Religious Instruction). Available at: http://www.preporod.com/mustafa-ef-ceriolumne-44/318--lo-vjeronaucir.html (accessed March 14, 2008).

58 Interview with Ljevaković, May 30, 2008, Sarajevo.59 Interview with A. Imamović, a muallime teaching at Fatima Gunić elementary

school in Sarajevo; See, A. Dizdar. Dizdar, A. Vjeronauka Odgoja Dušu Djeteta i Oplemenjuje Je. (Online.) 2008. Available at: http://www.preporod.com/profili-mainmenu-128/732-vjeronauka-odgaja-duu-djeteta-i-oplemenjuje-je.html (accessed May 16, 2008).


By removing religious instruction from the context of democratic rights, the IC adopts particular strategies against its critics. In a special sermon given in response to critics of religious instruction in the public school system,60 Reisu-l-ulema Cerić categorically defined the role of the home as the place for the upbringing of children, mektebs as the place to learn about faith, and school as the place to learn about morality.61 Thus the IC has drawn a distinction between the mekteb as the place for instruction on practical issues such as prayer (namaz), ablution (abdest), or reciting the Qur’an, and the school as the place for theoretical religious instruction.62

To this end, the textbooks’ content was constructed along confessional lines. This was underlined, for instance, in the preface of the seventh grade textbook that emphasizes that the duty of Muslims is “to learn (their) faith and (their) tradition.”63 Thus all textbooks were prepared with the aim of teaching Bosniak children basic elements of belief, Islam, and Islamic rules of morality and behavior from a social perspective. This social perspective is reflected in sixth-grade textbooks, which focus on the relationship of a Muslim towards children, friends, relatives, neighbors, and society.64 Of the five pillars of Islam, prayer (namaz) is given special emphasis in all the textbooks, especially in fifth-grade textbooks, where it comprises approximately 70 percent of total content.65

These textbooks also occasionally describe and interpret other faiths. For instance, in the seventh-grade textbook, in the chapter entitled “Belief in Heavenly Revelations,” the Old Testament (Tevrat), New Testament (Incil), and Psalms (Zebur) are briefly explained, mainly with reference to Qur’anic verses.66 However, this does not necessarily indicate intolerance towards believers of other faiths. The third-grade curriculum, for instance, suggests that children should learn about the “richness of diversity in Bosnia, (including the) multi-national,

(Religious instruction educates soul of the child and refines it.) Similar to Ljevaković, Imamović also interprets the critics’ viewpoint as an atheist-communist worldview that transformed itself to modernist neo-liberalism, which is in favor of depriving everything of a sincere belief in God.”

60 The sermon was required to be read by all khatibs at Friday prayer on February 2, 2009.

61 Available at http://www.preporod.com/mustafa-ef-ceriolumne-44/318-lo-vjeronaucir.html (accessed July 18, 2011).

62 Interview with Omerdić, May 27, 2008, Sarajevo. 63 M. Omerdić and F. Kalajdžisalihović. Vjeronauka za sedmi razred osnovne škole.

Sarajevo: El-Kalem, 2006, 5.64 M. Ćatović. Vjeronauka za šesti Razred Osnovne škole. Sarajevo: El-Kalem, 2005,

102–15. 65 A. Račić et al. Vjeronauka Za Peti Razred Osnovne Škole. Sarajevo: El-Kalem,

2006, 21–112. For a brief analysis of Islamic religious textbooks, see also Popov and Ofstad (2006), 82–5.

66 Omerdić and Kalajdžisalihović (2006), 71–3.


multicultural and multi-confessional characteristics of (their) homeland” and watch the programme “Bosnia and Herzegovina: Our Homeland” (“in which reading the ezan and bells can be heard, and mosques, churches, and synagogues can be seen”).67 Moreover, the seventh grade textbook, describing the basic level of inter-communal relations, emphasizes that “(s)haria does not allow (Muslims) to insist on greeting non-Muslims with salaam”; instead, they should “greet them with their own greetings.”68 Furthermore, religious instruction curriculum also includes special chapters on the diversity of the world. For example, Chapter 11 of the fourth-grade textbook, entitled “Diversity of the World,” and Chapter 9 of the fifth-grade textbook, entitled “Diversity in My Neighborhood,” introduce basic Catholic, Orthodox and Jewish holidays so that students recognize the importance of knowledge and esteem for other cultures and develop respect towards other people’s attitudes and opinions.

It should be noted that current editions of religious education textbooks were published mainly in 2004 and 2005 following a revision of all religious communities’ textbooks, completed in 2003. The revisions were a joint project of the High Representative of the International Community and the State Commission for the Revision of Textbooks. This shows that the textbooks were approved by representatives of other religious communities.69

After categorically differentiating religious instruction and preparing curriculum along confessional lines with emphasis on the multi-cultural heritage of Bosnia and Herzegovina, the IC further underlined the elective character of the religious courses. In response to critics, the IC emphasized that religious instruction in schools is optional, not compulsory, and that students or their parents are free to seek exemptions from religious courses.

At the same time, Islamic leadership also underlined that Bosniaks have generally welcomed religious courses. Statistics from the 2006–2007 academic

67 All curricula prepared by Muharem Omerdič, for elementary and secondary schools are available at the website of Rijaset. Available at: http://www.rijaset.ba/index.php?option=com_content&view=category&id=235&Itemid=156 (accessed March 14, 2008).

68 Omerdić and Kalajdžisalihović (2006), 127. With respect to greeting non-Muslims with salaam, it was emphasized in the first-grade textbook that “when (they) meet people from other faiths, (they) greet them with these words: ‘good morning, good afternoon, and good evening.’” I. Begović. Vjeronauka Za Prvi Razred Osnovne Škole. 2nd Edition. Sarajevo: El-Kalem, 2007, 9.

69 Furthermore, Grabus notes that “(s)entences about Christian doctrinal beliefs were written by Catholic theologians.” See, Grabus (2007), 97. This process was actually realized through interesting debates. For instance, a picture of Ferhadije Mosque in Banja Luka, which was demolished on May 7, 1993 as part of the ethnic cleansing campaign, was removed. For a public debate on pictures in third-grade Islamic textbooks, see J. Hasović. Lov na dječije duše. Dani, 201, 2001. Furthermore, Alibašić noted that requests were also extended to remove particular scriptures, such as sure-i Ihlas. Interview with A. Alibašić, lecturer at the Faculty of Islamic Studies and Co-organizer of the Diploma Program on Islamic Studies, May 21, 2008, Sarajevo.


year reveal that 96.24 percent of Bosniak students attended religious instruction in primary schools, with varying ratios from the realm of the Sarajevo muftiluk70 (96.5 percent attendance) and the Bihać muftiluk (99.39 percent attendance). During the same term in secondary schools, the average ratio in the Federation was 85 percent, with the lowest attendance rate in Tuzla (76.76 percent) and the highest in Goražde (95.65 percent).71 These rates were similar during the following academic year (2007–2008), with 94 percent attendance in primary schools and 79 percent attendance in secondary schools.72

Responding to criticism of religious instructors’ insufficient expertise and lack of pedagogical skills, the IC has undertaken several initiatives.73 It provided curriculum for lecturers, didactic suggestions, parameters of evaluations, and examples for interdisciplinary correlations,74 and held pre-academic year seminars for lecturers at the muftiluk level, as well as other periodic seminars throughout the year. Furthermore, religious instructors were required to take professional exams following the working year.75

Significant improvement in instructor preparation has been achieved by the establishment of two pedagogical academies—later promoted to faculties—in Zenica and Bihać. These academies were established to provide theoretical and pedagogical education for prospective religious instructors in public schools.76 Since they were undertaken, these initiatives have significantly increased the quality of the lecturers. Though 85 percent of the 80 total lecturers in the 1998–99 academic year were graduates of medresas, this declined to 11 percent of 89 total instructors in the

70 Muftiluks are regional IC headquarters.71 Here, I excluded the secondary school statistics for the Banja Luka muftiluk, as

these statistics were only reported for the municipality of Ključ (100%). The statistics for the Sarajevo muftiluk also exclude schools in Canton Sarajevo, as religious instruction was introduced there at the end of October 2007. Available at: http://www.rijaset.ba/index.php?option=com_content&view=article&id=1725&Itemid=191 (accessed March 14, 2008).

72 Available at: http://rijaset.ba/vjeronauka/index.php?option=com_content&view=article&id=85:analiza-polaznosti-nastave-vjeronauke-u-2008&catid=51:vjeronauka-dokumentacija. (accessed March 15, 2012).

73 For more information on critics, see M. Omerdić. Omerdić, M. Vjeronauka u školi. Novi Muallim, 1(1), 2000, 74. (Religious Instruction in School.)

74 Available at: http://www.rijaset.ba/index.php?option=com_content&view=category&id=235&Itemid=156 (accessed July 18, 2011).

75 Omerdić (2000), 76.76 The two Islamic pedagogical academies in Zenica (1993) and Bihać (1996) were

primarily established to provide two years of training for religious education teachers. The training curriculum increased to three years in 2005, which provided students with the opportunity to earn a bachelor degree through coordination with the European Credit Transfer System (ECTS). These two academies were established originally as part of the IC. After they were integrated respectively into the University of Bihać in 1997 and the University of Zenica in 2004, the academies became Faculties of Islamic Pedagogy. Available at: http://www.ipf.unbi.ba/ and http://www.ipf.unze.ba/ (accessed July 18, 2011).


2006–2007 academic year, with the remaining 89 percent possessing graduate and post-graduate degrees.77

In addition to these developments, the IC accused its critics of espousing anti-Islamic tendencies and discriminating particularly against the IC. To undercut its critics, the IC has pointed out that religious education is a mandatory subject in the Serb Republic, even at the pre-school level.78 Further, Bosnia and Herzegovina concluded a pact with the Holy See on April 19, 2006 that granted the Catholic Church the right to teach Catholic religious courses in all the nation’s public schools.79 Although this right has been granted to all religious communities through a joint process with the participation of four religious communities, international experts, and local political representatives, both Alibašić and Omerdić argue that the IC would easily have been deprived of this right if the Catholic Church had not been a stakeholder.80

A similar conflict erupted over religious instruction at the pre-school level. Officials from the Organization for Cooperation and Security in Europe (OSCE) reacted to this initiative by arguing that it would bring confession-based segregation to the pre-school level. This statement, however, was interpreted to delegitimize the IC’s position with respect to one of its core missions. The cabinet of the Reisu-l-Ulema issued a statement in response to the OSCE officials’ criticism accusing the OSCE of having “a wrong perception of Islam” and of “ignor(ing) the legal right of parents to raise their children according to their own beliefs until each child’s coming of age.” The OSCE was also accused of being “completely anti-Islamic.”81

77 Z. Okanović. Introductory Address. Presented at the Symposium, Vjeronauka u Našem Odgojno-Obrazovnom Sistemu, Stanje i Perspektive (Religious Instruction in Our Educational System, Balance and Perspective). March 30, 2008, Sarajevo. Available at: http://www.fin.ba/ba/dogadjaji/vjeronauka-simpozij-30.3.2008.html (accessed May 16, 2008).

78 See, for instance, A. Indžić. Uvođenje seksualne edukacije i školstvu da`, islamske vjeronauka `ne`? Preporod 850, 2007, 9.

79 Article 16 of this basic agreement states that “Bosnia, in light of the principle of freedom of religion, recognizes the fundamental right of parents to obtain religious education for their children; in accordance with the will of students’ parents or guardians, teaching the Catholic religion within the curriculum and at all public primary and secondary schools and at pre-institutions, as a mandatory school subject for all those who select it, under the same conditions required for other subjects.” See, A. Kadribegović. Klikovanje i Segregacija. Preporod, 39(4/870), 2008, 5. (Clique and segregation.) A similar agreement was reached between the Serb Orthodox Church and the State of Bosnia on May 7, 2008, despite the opposition of the then-Chairman of the Presidency of Bosnia, Haris Silajdžić, who argued that the Serb Orthodox Church is not a sovereign country like the Holy See. The IC applied for a similar agreement in January 2010.

80 Interview with Omerdić, May 27, 2008, Sarajevo and with Alibašić, 21 May 2008, Sarajevo.

81 Reagovanje Kabineta Reisu-l-Uleme Povodom Oglašavanja OSCE-A. (Online.) (Reactions of the Cabinet of Reis-l-Ulema on the occasion of the statement of the OSCE.) Available at: http://www.rijaset.ba/index.php?option=com-_content&view=article&id=2


Given the confessional character of religious education organized by religious communities in public schools since 1994, together with reports of discrimination against members of minority communities, the OSCE introduced a non-confessional subject entitled “Culture of Religions” to be taught in secondary schools.82 A joint project, it emerged consequent to a declaration concluded in the Conference of the Ministers of Education of Bosnia held in May 2000, which stated that “teaching about all major religions practiced in Bosnia” is an integral part of “intercultural understanding and communication.”83 Since then, the course has been realized as a joint project of the OHR, the OSCE, the Goethe Institute, UNESCO, and ABRAHAM.84

A preliminary curriculum and a teacher’s guide were prepared in November 2002 and distributed to cantonal ministers of education. Subsequently, two seminars were organized in December 2002 in Neum and in August 2003 in Prozor-Rama (Šćit), mainly for teachers of sociology and philosophy appointed by the state and cantonal ministers. This was followed by a seminar in Banja Luka in October 2003 that brought together school directors and experts, as well as politicians and representatives of the international community.85

The course’s curriculum was prepared in October 2004 by a working group composed of foreign and local experts.86 The course aimed at developing inter-religious and inter-cultural understanding and respect by drawing from the following objectives:

826:reagovanje-kabineta-reisu-l-uleme-povodom-oglacavanja-osce-a&catid=18:minine-vijesti&Itemid=72 (accessed March 15, 2012).

82 For example, in the 2010 Religious Freedom Report of the US Department of State for Bosnia-Herzegovina, it was reported that “(s)tudents of the majority religious groups and sometimes also of minority religious groups faced pressure from teachers and peers to attend noncompulsory religious instruction, and most did so” with the fear of being “singled out as different from their classmates … even if (the religion taught) was not the religion they practiced at home.” The report also notes that it is difficult in practice to organize religious instruction for minority students due both to the lack of qualified teachers and the scattered population in particular regions. Available at: http://www.state.gov/g/drl/rls/irf/2010/148920.htm (accessed 5 January 2011).

83 See OSCE Mission to Bosnia and Herzegovina Education Department (2007), 4.84 ABRAHAM is a local NGO focusing on inter-faith dialogue. It left the project in

April 2003.85 Four more seminars were held between 2004 and 2006 for the training of prospective

teachers. Two seminars were held, one in Sarajevo in 2005, and one in Prozor-Rama in August 2006. See, OSCE Mission to Bosnia and Herzegovina Education Department (2007), 11.

86 This group of foreign and local experts included Dr. Klaus Gebauer from Germany, Professor Ivan Cvitković from the University of Sarajevo, Professor Nusret Isanović from the Islamic Pedagogical Academy in Zenica, Professor Dimitrije Kalezić from the Theological Faculty of the Serbian Orthodox Church in Belgrade, and Dr. Magdalena Šverc from the Theology Faculty in Ljubljana, Slovenia.


• Educate students in a spirit of respect and tolerance about people of different worldviews, especially members of other religions.

• Develop within students the ability and willingness to seek opportunities for meetings with members of other religions and communities and to learn about their practices.

• Develop within students the ability and willingness to gain basic knowledge about other religions and awareness of the differences in worldviews among members of different religions.

• Develop within students the ability and willingness to assume responsibility for others regardless of the religious affiliation of the individual and the community.87

Accordingly, the course consisted of six main orientations:

1. Religion’s contribution to the development of architecture, painting, literature, and musical arts;

2. Family and religion;3. Ethics/benevolence and religion;4. Collectiveness as a principle of religion;5. Peace and a place for others;6. Religion, state and society.

The textbook was to be finalized by 2008 and the course was to be introduced in all secondary schools in the Bosnian Serb Republic (Republika Srpska or RS). In addition, efforts were made to include the subject matter in more schools in the Federation.88 In accordance with the decision to introduce the course in the RS in the second term of the 2008–2009 academic year, three teacher training seminars were organized in November and December 2008, following the previous two seminars. Eighty-seven teachers from all secondary schools in the RS participated.89

Religious communities were not included in the initial phases of the process.90 The Catholic Church reacted to this first. It fiercely opposed the process and led a campaign to draft a joint letter with the education ministers of three Croat-majority cantons: Posavina, West Herzegovina and Canton 10. The letter’s signatories stated that they were not backing the project because it lacked “legal, theological-

87 See OSCE Mission to Bosnia and Herzegovina Education Department and Goethe Institute-Sarajevo. Kultura Religija- Međureligijsko učenje u školama u Bosni i Hercegovini- Nastavni plan i program. Sarajevo: OSCE, 2004, 3. (Culture of Religions—Inter-religious study in schools in Bosnia and Herzegovina)

88 Available at: http://www.oscebih.org/education/tolerance.asp (accessed April 19, 2009).

89 Available at: http://www.goethe.de/ins/ba/sar/ges/phi/bsindex.htm (accessed March 15, 2012).

90 Interview with A. Dugandžić on June 2, 2008, Sarajevo.


scientific, or pedagogical grounds.” Orthodox bishops later joined the initiative. In their joint letter of November 4, 2003, Orthodox bishops requested a role in determining the content, textbooks, and teachers for the course.

Compared with these two religious communities, the IC acted in a more balanced and deliberate way. The IC did not refuse to cooperate in the other religious communities’ project, although it did have reservations about collaborating; for example, the IC considered the project insincere due to what the IC perceived as ulterior motives.91 Expert consultation held in Ilidža between March 18–21, 2001, on the theme “Teaching about Religions in Bosnian-Herzegovinian Schools,” was the IC’s first concrete initiative in response to the controversy surrounding confessional religious instruction in public schools and the Culture of Religions course. Ibrahim Begović, Counselor to the Religious-Educational Service of the IC, revealed the IC’s general approach in this meeting. He stated that “confessional religious education in schools, as part of basic human rights and freedoms, is unquestionable and its status cannot be violated.”92

Representatives of the IC repeatedly emphasized that the Culture of Religions course should not be regarded as a substitute to confessional religious instruction. Courses organized by the IC have been considered to have a great significance in the development of self-concept, as a precondition for any encounter with “the Other.” Thus, the IC considers that the Culture of Religions course only complemented religious instruction given by the officials of the IC. It also considers confessional religious instruction to facilitate the aim of the course, providing to children “the ability and willingness to seek opportunities for meetings with members of other religions and their communities.”93

Critiques of the Culture of Religions project have tied its failure to its exclusion of religious communities from its decision-making process.94 The course was also criticized for lacking a) consensus on its introduction to secondary schools, b) standard teaching materials such as a curriculum and textbook, and c) an adequate teaching staff, which the IC said would result in former Marxist course lecturers being transformed into Culture of Religions instructors.95 Some of these criticisms

91 Interview with I. Mustafić on June 16, 2008 and with M. Omerdić on May 27, 2008, Sarajevo. Omerdić considers that the main aim of the project is to substitute itself for confessional religious education. He basically regards this project as a failure.

92 İ. Begović. Nastava o Religijama u BosanskoHercegovačkim Školama—Stručna konsultacija na Ilidži 18–21. marta 2001. Godine. Novi Muallim, 2(6), 62. (Teaching about Religions in Bosnian-Herzegovinian Schools— Professional Consultation in Ilidža March 18–21, March 2001.)

93 N. Isanović. Vjeronauka i kultura religija: odnos i mugućnosti dijaloga. Novi Muallim 2(6), 2001, 57.

94 Interview with I. Mustafić, June 2, 2008, Sarajevo See also Begović. Nastava o Religijama u Bosansko Hercegovačkim Školama, 62.

95 See, Muharem Omerdić (2001), 62. Similar disapproval was expressed by Mustafić in our interview held onJune 9, 2008 in Sarajevo. Additionally, Zijad Ljevaković complains


have been confirmed by the course’s initiators themselves. The “Status Report on the Pilot Culture of Religions Course” identified seven main problems: 1) inconsistent curricula, 2) different methods of evaluation, 3) no textbooks or teaching supplies, 4) insufficient teacher training, 5) no government oversight and the consequent inability to implement the course, 6) demanding curriculum, and 7) religious opposition.96

Conclusion

As of 2010, debates continue in Bosnia and Herzegovina on the role of religious education, education of other religions, and the issues of strengthening morality, religious self-concept, and tolerance towards “the Other.” Despite some work at the local level,97 it is still too early to evaluate the influence of the Culture of Religions project on pupils and the broader society. Today, the course is taught in some schools in each Bosniak-majority canton except Una-Sana, and is partially taught in the Brćko district.98 Despite some positive signs,99 the Orthodox Church’s critical review of the course shows that religious communities’ reservations will continue to affect the process of implementing the course.100 Indeed, the aforementioned experiences highlight the need for the international community to establish dialogue with religious communities, rather than trying to keep them out of the decision-making process. Failure to include religious communities in

that “Culture of Religion gives everybody the right to talk about everybody.” 96 Claude Kiefer. Head of the OSCE’s Department of Education. (Online.) 2009,

9–13. Available at: http://www.slobodnaevropa.org/content/bih_Skole_/1808272.html (accessed March 5, 2010). In the Interim Report of the OSCE Mission to Bosnia and Herzegovina, it was noted that the course is taught only in some schools in three cantons: Sarajevo, Tuzla, and in only one school in Zenica Doboj.

97 For the observations of a teacher of the course in the First Bosniak Gymnasium, see N. Baljević. Teaching culture of religions in Sarajevo, in Teaching for Tolerance in Muslim Majority Societies, edited by R. Kaymakcan and L. Oddbjørn. Istanbul: DEM, 2007, 103–18.

98 See OSCE Mission to Bosnia and Herzegovina Education Department (2007), 8.99 For example, the preliminary textbook has received a fairly good review and the

course has been implemented experimentally in the first grade of secondary schools in the RS since the second semester of the 2008–2009 academic year.

100 A public opinion survey on education in Bosnia, conducted in December 2006, has identified interest in both religious instruction and Culture of Religions courses. Only a third of respondents said that religious classes should not be present in any curriculum. When asked to choose between religious instruction and the Culture of Religions course, 47% of respondents said they would choose religious instruction classes. The ratio was 38% for Bosniak respondents, 52% for Croats, 58% for Serbs, and 34% for others. See Highlights of Public Opinion Survey on Education in BiH: Citizen Opinion in December 2006. Available at: http://www.oscebih.org/documents/8751-eng.pdf (accessed: April 19, 2009).


planning and decision making, given they have multiple channels of influence at the local level, would further delegitimize future attempts to develop courses like Culture of Religions when such courses are perceived to be positioned against religious communities. Moreover, as emphasized in the OSCE’s Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools, “a better knowledge of religions and beliefs … has the potential to have a positive effect upon perceptions of others’ religions and beliefs and of their adherents.”101

In contrast to history classes taught at the same academic level that are built completely upon a perception of “we” and “the Other,” a qualified religious education may allow finding commonalities among ordinary people. Memoirs from the Yugoslav period often contain references to inter-communal interaction and sharing cultural practices related to religious holidays, such as serving baklava or Easter eggs to members of other religious communities. Even in the absence of a confessional education, religion would still be the main basis of distinctive ethno-national identity for the Slavs of Bosnia. History classes already possess that perceived “divisive” potential. It should be possible to adopt a strategy to transform history courses into an integrative factor.

It must be emphasized that the ideals of coexistence and a “normal” Bosnia are beyond the scope of a single course; a single course cannot reform those intent on marginalizing religious communities, nor can it reform religious communities in favor of gaining subjects at the expense of the common good of Bosnia and the international community. How strong, then, is Bosnia’s political will to revise the current legal-administrative structure, which rewards segregation and keeps it alive by maintaining the chain of patron-client relations? Only the future can tell.

Nevertheless, the Bosnian Muslim experience could provide valuable insights in the articulation of a “European experience of Islam,” and the issue of religious education as a crucial aspect of that experience. The spirit of religious education resides in the aforementioned Gazi Husrev-bey’s wakufname, while Islamic education in Bosnia has developed through challenges of modernity dating back to the late nineteenth century. And through subsequent transformations, it stands as an example of how the elements of religious and secular sciences could combine within the framework of modern educational structures.

101 See ODIHR Advisory Council of Experts on Freedom of Religion or Belief. Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools. Warsaw: OSCE Office for Democratic Institutions and Human Rights (ODIHR), 2007. Available at: http://www.osce.org/publications/odihr/2007/11/28314_993_en.pdf (accessed April 19, 2009).

Chapter 10

Islamic Banking and Finance: Transplantable Models from Malaysia to the EU? 1

Stefan Messmann

Introduction

The question asked in the title of this chapter requires some explanation. By the phrase “Islamic banking and finance” we mean interest-free financial activities consistent with Islamic law2 and sharī’a3 as they are practiced in Malaysia and, supposedly, could be transplanted to the countries of the European Union (EU).

1 The author thanks Professor Aziz Al-Azmeh, Professor Tibor Tajti, Professor Arif Caglar, Yuliya Guseva, S.J.D. (CEU), Oleksiy Kononov, S.J.D. (CEU) and Indeen Saam, LL.M. (CEU) for their thoughts and concerns on this chapter.

2 Today, a voluminous literature in English explains the principles, concepts, and methods of Islamic banking and finance. The most useful references, besides those cited in this article, are the following: J.R. Presley. Directory of Islamic Banking and Financial Institutions. London: Routledge, 1988; R. Wilson. Islamic Business: Theory and Practice. London: The Economist Publications, 1985; M.A. Mannan. Islamic Economics: Theory and Practice: Foundations of Islamic Economics. Sevenoaks: Hodder & Stoughton, 1987; M.S. Khan and A. Mirakhor, edited. Theoretical Studies in Islamic Banking and Finance. The Institute for Research and Islamic Studies, 1987; C. Mallat. Islamic Law and Finance. London: Graham & Trotman, 1988.

3 Sharī’a is frequently oversimplified and thus used interchangeably in Western scholarship with the term “Islamic law.” In fact, however, sharī’a contains not only legal principles but also elements beyond the conventional understanding of law. See U.F. Moghul and A.A. Ahmed. Contractual Forms in Islamic Finance Law and Islamic Inv. Co. of the Gulf (Bahamas) Ltd. v. Symphony Gems N.V. & Ors.: A First Impression of Islamic Finance. Fdmilj 27(150), 2003, fn 15. Originally, the word “sharī’a” referred to the path by which camels were taken to water, which was considered as an essential element of life. Today, it refers to the “the way” or “the path” by which Muslims conduct their lives in the areas of religion, ethics, morality, spirituality, humanitarianism, law, and civic and political behavior. See M.J.T. McMillen. Contemporary Islamic finance, in International Law News, Fall 2009, 38(4), 10. The non-ritual areas of sharī’a, on the other hand, correspond to law in its modern, secular sense. It is therefore considered as the law of Islamic jurists. See C. Imber, edited. Ebu’s-su’ud and the Islamic Legal Tradition. Palo Alto: Stanford University Press, 1997. The law of Islam in conventional understanding—according to classical theory—is called fiqh and includes the whole science of jurisprudence. See A.A.A. Fyzee, edited. Outlines of Muhammadan Law. Oxford: Oxford University Press, 1974, 17, and is


But why choose the Malaysian practices of Islamic banking and finance, rather than another Islamic country’s (perhaps a country with a majority or purely Muslim population), to be transplanted to EU countries, given that such practices exist in every Islamic country? In modern times, Islamic banking and finance were first introduced in the Egyptian town of Mit Ghamr in 1963, and were often labeled the “Egyptian experiment.” The first modern Islamic bank was established as a savings bank based on the idea of profit sharing. Even though the Mit Ghamr bank was closed for political reasons in 1967, its short existence signaled the resurrection of the modern Islamic banking and finance movement. Thus, in 1971 the late Egyptian President Anwar Sadat established the Nasir Social Bank as an interest-free commercial bank, primarily to develop a social security system in the country. On Sadat’s initiative, in 1972, Egypt submitted to the Islamic Foreign Ministers’ Conference a project study of the Islamic Development Bank (IDB), which influenced this organization to set up such an intergovernmental financial institution. However, the services of the IDB, opened in 1974, were limited to the provision of funds for development projects in its member countries.4

In the late 1970s and early 1980s this development triggered a dramatic increase in the number of Islamic banks throughout the Middle East, including the Dubai Islamic Bank (1975), the Faisal Islamic Bank of Egypt (1977), and the Bahrain Islamic Bank (1979). The number of Islamic banks rose from 25 in 1980 and to 67 in 1989. Some Muslim countries, such as Iran, Pakistan, and Sudan, Islamized their entire financial systems, while other countries with deep-seated secular traditions, like Turkey, enacted legislation allowing Islamic banks to operate parallel to commercial banks.5 This means that in these countries loans

a regulating instrument of life. See W.B. Hallaq, W.B. A History of Islamic Legal Theories. Cambridge: Cambridge University Press, 1997, 227. However, for reasons of convenience, and because even leading Islamic jurists often use the two terms synonymously (see Fyzee (1974), 24), we will refer in this article to sharī’a when speaking about Islamic law. Arabic terms in this article have been used because translating them would be cumbersome and because any translation would not—according to some scholars—fully and adequately express the Islamic legal concept (see Moghul and Ahmed (2003). The transliteration of these Arabic terms is not used uniformly in the literature, though some effort has been made to standardize usage of the most common terms throughout this book.

4 See H. M. Sarawy. Understanding the Islamic prohibition of interest: a guide to aid economic cooperation between the Islamic and western world. Ga.J.Int’l&Comp.L, 29, 2000, 153, 167.

5 R. Wilson, edited. Islamic Financial Markets. London: Routledge, 1990, 2, 3, 8. Between 1869 and 1876 in Turkey, decisions and commentaries based on fiqh were compiled in a civil code. During the Tanzimat reforms there were two schools of thought concerning civil law reform. One favored transplanting and adapting the French Civil Code to the needs of the Ottoman Empire (Ali Pasha), while the other favored reforming the existing civil law (Cevdet Pasha). The latter succeeded by reforming the civil law according to the Hanīfi school and publishing it under the title majallah. It was in force in the Ottoman Empire and, thereafter, in Turkey, until 1926 (see Imber (1997), 39; M.H. Kamali. Principles of Islamic

Islamic Banking and Finance 191

are available against interest from the commercial banks and without interest from Islamic banks, which make their profits from other financial transactions. Money depositors in these countries often receive lucrative state orders as compensation for their interest-free deposits. Evidently, profits generated from such orders outweigh by far the disadvantages of interest-free deposits.

Today, over 300 Islamic financial institutions (securities firms, mutual funds, and insurance companies) are present in more than 75 countries.6 Their combined assets exceed USD 250 billion and their aggregate growth rates exceed 15 percent per year. In 1997, Pakistan, Iran, Malaysia, and Indonesia were among the seven Muslim countries to form the D-7, a group whose goal was “to promote mutual economic cooperation, build a common market, and develop capital markets” based on the principles of Islamic law. According to Financial Services London, a private sector organization, the global market for Islamic financial services reached USD 951 billion in 2008, up 25 percent from USD 758 billion in 2007 and up 75 percent on the 2006 total.7 The leading countries for sharī’a-compliant assets are Iran (USD 293 billion), Saudi Arabia (USD 128 billion), and Malaysia (USD 87 billion).8

However, the financial crisis caused billions of dollars of losses and exposed severe problems in the business models of many Islamic investment banks. Moody even called the situation alarming. This estimation, however, contrasts sharply with that of other writers who believe that “Islamic financial institutions have emerged comparatively unscathed” from the financial crisis of 2008 and 2009.9

In all Islamic countries Islamic banking and finance are almost identical. Why transplant the Malaysian practices of Islamic banking and finance to the EU? First, Malaysia is not an exclusively Muslim country.10 Second, different legal systems coexist in Malaysia: common law inherited from the British colonial period, sharī’a, and indigenous unwritten law in the provinces Sabah and Sarawak.11 Third,

Jurisprudence The Islamic Text Society Cambridge: Cambridge, 2003, 7, 370). Thereafter, Turkey adopted the Swiss Civil Code, which is still in force. Sudan, however, changed its position and allowed the commercial banks to deal on ribā basis as well.

6 T. Kasarik, et al. Islamic Finance in Global Context: Opportunities and Challenge., Chi.J.Int’L. 7, 2007, 379.

7 IFSL Research, Islamic Finance, 2010, 1. 8 For slightly different estimations, see D. Oakley. Growth survives the storms, the

future of Islamic finance. Financial Times Special Report, 2010, 1. 9 M.J. Evans. The Future of Conflict between Islamic and Western Financial Systems:

Profit, Principle and Pragmatism. University of Pittsburgh Law Review, Summer, 2010, 1.10 Together with aboriginal groups, Malays comprise 59 percent of the total

population, and Chinese 32 percent. The large majority of Malaysians are Muslims (see Information Malaysia 1995 Yearbook, 54) and among them the Shafi’īt are in majority and the Hanīfit in minority. This relation is also mirrored in the sharī’a.

11 P.L. Tan, edited. Asian Legal Systems. Butterworth, 1997, 287–8.


Malaysia was the first Islamic country to issue Islamic benchmark bonds.12 Fourth, by doing so, Malaysia strives to become one of the most important Islamic capital markets.13 Finally, sharī’a boards in Arab countries are known to be conservative in comparison to those in Malaysia.14

Financing in Early Islamic Law

In Islamic law, financing, as it is elsewhere, is based on contracts. Lending, leasing, and securities transactions are all contractual.15 Contracts in Islamic law are regulated by sharī’a, the Islamic legal system rooted in the Qur’an16 and the sunnah.17 Sharī’a’s secondary sources include the ijmā (consensus18 of opinion among the learned community)19 and qiyas, or analogical reasoning “directed toward achieving systematic consistency and guided by the parallel of an existing institution or decision.”20

Sharī’a’s legal evolution, including the evolution of contract law, was frozen according to some writers in the twelfth century when “the door of ijtihād,” or independent reasoning, was closed. The term ijtihād denotes the effort a jurist makes in order to deduce a rule, which is not self-evident from its sources.

12 G. Bilal. Islamic finance: alternatives to the Western model. Fletcher F. World Aff., 23(145), 151, 1999.

13 A.A. Badri. The development of Islamic banking and finance. Doing business with Malaysia. Asia Law & Practice 46, 2004.

14 Bilal (1999), 151.15 The requirements for the validity of a sale contract, for example, are: adulthood,

sanity, and discernment of the contracting parties; correlation between offer and acceptance; saleable property owned by the seller and deliverable at the time of the fulfillment of the contract; the object of sale is known and sufficiently determined; and specified price. See Moghul and Ahmed (2003), 7.

16 The Qur’an contains approximately 500 legal injunctions but, for the most part, lays out only general guiding principles (see M. Rodinson. Islam and Capitalism, New York City: Pantheon Books, 1974; Hallaq (1997), 118; Moghul and Ahmad (2003), fn 25; C.G. Weeramanty. Islamic Jurisprudence: An International Perspective. Vishra Lekha, 1999, 32.

17 The sunnah is “a normative tradition,” “habitual practice,” “customary procedure or action,” or “an established course of conduct” demonstrated or approved as a model by the Prophet Muhammad and “later established as legally-binding precedents in addition to the law established by the Qur’an.” See Rodinson (1997), 12–19; Moghul and Ahmed (2003), 27; Weeramanty (1999), 5; Fyzee (1974), 20.

18 Decisions of the learned community must be unanimous, which demonstrates the distrust of individual, or even majority, opinions. Weeramanty (1999), 39.

19 See Kamali (2003), 228–63; Hallaq (1997), 20; Fyzee (1974), 20.20 J. Schacht. An Introduction to Islamic law. Clarendon Press, 1982, 98. The Shafi’īte

school subsumes under qiyās the a fortiori argument in both of its forms, the a maiore ad minus and the a minore ad maius (see Hallaq (1997), 20, 83–107; Kamali (2003), 264–305.


However, the hypothesis that ijtihād ceased is highly controversial and is considered a “myth” by others.21 In the area of contracts, Qur’anic legislation today governs only general principles of contractual transactions: fulfillment of contracts, legality of sale, prohibition of usury, documentation of loans and other forms of deferred payments.

In the context of financing, contracting loans for fungible and non-fungible objects, hire and lease, the credit cooperative, and deposits and suretyship are particularly important.

Contracting loans of non-fungible objects (āriyya or commodatum in Roman law, which is a gratuitous bailment involving interest-free loans of goods to be used by the bailee and then returned to the bailor) is also defined in Islamic law as a gratuitous transfer of usufruct (the right to use another’s property for a time without damaging or diminishing it), which is regarded as an object. This puts another person temporarily and gratuitously in possession of the use of an object, the substance of which is not consumed by its use; any stipulated award is regarded as unjustified enrichment.22

The loan of money constitutes a different contract from the loan of other fungible objects because money is not recognized as a commodity and has no time value. This means that money does not change in value as time passes, and explains why the loan of money should be interest-free. Loaning money is called kard (corresponding to mutuum in Roman law).

The contract of hire and lease (ijāra) is the sale of usufruct, and the rules relating to a contract of sale, such as rescission, cancellation, but, interestingly

21 With the alleged “closing [of] the door of ijtihād,” the various schools of law took over the development of law. Thus, the Sunnis developed in the second and third centuries of Islam (the 8th and 9th centuries on the Gregorian calendar) four great schools of jurisprudence: (1) the Mālikī school, named after Mālik (d. 795), who in Medina made the first attempt to conceive a corpus juris and who introduced the concept of ijmā, or consensus; (2) the Hanīfi school, named after Hanīfa (d. 767), who lived in Kufa and Basra (present-day Iraq) and had the reputation of an authoritarian legal scientist rejecting the idea of consensus; (3) the Shafi’ī school, named after the Imam Shafi’ī (d. 820), who tried to reconcile the Mālikī and Hanīfi schools (see M. Hartmann. Der Islam. Geschichte—Glaube—Recht. Leipzig, 1909, 76–81) and is considered the father of Islamic jurisprudence (see F. Karić and Karić, E. Studije o Šerijatskom Pravu. Zenica: Bemust, 1997, 63. (Studies on sharī’a law); and (4) the Hanbali school, named after Ibn Hanbal (d. 855), who derived the source of law from traditions. Sunnis consider his school canonical (see Hartmann (1909), 83), though this point of view is controversial. The Hanbali School is also considered by many writers orthodox, like other schools. A great majority of jurists argue that there is no evidence substantiating the assumption that the “gate of ijtihād” has ever been closed. Hallaq maintains that “the elements of time and age are of no consequence whatsoever in matters of ijtihād,” and that “without ijtihād the law may cease to function” (see Hallaq (1997), 79, 143–4). For Kamali, ijtihād was and remains the most important source of Islamic law next to the Qur’an and the sunnah.

22 Schacht (1982), 157.


enough, not preemption, apply to ijāra as well. A defect in the ijāra entitles the hirer or renter to cancel it if the defect prevents or reduces the possibility of using the subject(s) of the contract. Such defects might include the illness of a hired slave or the collapse of a rented house. Other reasons to terminate contracts might be valid as well, particularly if a defect obviates the purpose of the contract, or if one of the contracting parties dies.

The credit cooperative (sharikat al-wujūh), which does not require capital, consists of pooling partners’ credits to purchase goods on credit, resell them, and share the profit. Deposit (wadī’a) is a commission that the owner of property gives to another person to hold the property in safe custody. This forms a fiduciary relationship in which one person owes to another the duties of good faith, trust, confidence, and candor. Finally, suretyship (kafāla) is the creation of an additional liability with regard to the claim but not to the debt.

The above Islamic contracts are bilateral transactions having the following characteristics:

• Freedom of contract is limited to cases where the transactions do not violate legal or ethical norms

• A contract containing ribā (interest or unlawful profit), is void• A contract containing gharar (excessive risks), is also void• A contract is voidable in some cases such as no-fulfillment, poor quality

of delivered goods, legal defect (darar), and in all cases of changed circumstances (corresponding to force majeure or, in a larger sense, to the notion of clausula rebus sic stantibus)

• Almost all Islamic contracts have counterparts in Roman law; however, there is nothing corresponding to the bonae fidei obligatio of Roman law.

Key Features of Islamic Finance

The key features of Islamic finance are ribā and gharar. Ribā is, in its most common contemporary understanding, the prohibition against giving or taking interest on a loan.23 But it also applies to currency lending transactions and to trade involving certain commodities, such as foodstuffs, gold, and silver. Simply stated, Islamic law prohibits interest because it fosters the accumulation of wealth that is not a product of work, and which is, along with hoarding, gambling, and betting in all forms, therefore contrary to the fundamental ideals of Islam.24 But there is also ribā if the profit of both parties is not clear or the rent/lease is higher than the price paid to the previous owner. The same is true for all kinds of gambling. The only two exceptions to the general prohibition of aleatory transactions are horse races and competitions concerning knowledge of Islamic law.25 However, in the Middle

23 Qur’an 2:275–9, 3:130, 4:161.24 Rodinson (1997), 18.25 Schacht (1982), 146–7 and Moghul and Ahmed (2003), 6–7.


Ages, the prohibition against ribā was circumvented “in practice to such a degree that the capitalistic sector experienced an incomparable efflorescence … ” Thus merchants seized any opportunity to turn a profit and Indian Muslims drew a large profit from money lending.26

But the prohibition against—or at least the limitation of—interest (or compound interest) also exists in other cultures and legal systems. For instance, Aristotle concluded that money could not be lent at interest.27 Compound interest had already been forbidden in the Code of Hammurabi. However, despite prohibitions, lending at compound interest was practiced at the beginning of the second millennium BC in Babylonia and through Assyrian trading agencies in Cappadocia. In Egypt, Pharaoh Bocchoris (720–715 BC) issued a law by which “whoever lent money along with a written bond was forbidden to do more than the principal interest.”28

Roman law recognized the right to lend and to borrow for a specified return—the mutuum (interest-free loan).29 The loan against interest had to be concluded by stipulatio, generating an actio creditae pecuniae. The interest rate was initially limited to 20 percent and gradually decreased to 1 percent (centensimae usurae), as was the case in Athens.30

The Torah prohibits Jews from charging or collecting interest (ribit) from other Jews but allows them to collect interest from Gentiles.31 The Bible also strongly rejected loans at interest; Luke wrote in his gospel: “Lend, hoping for nothing in return.”32 Daoist temples in China, which often contain graphic representation of the torments of the netherworld, also suggest disapproval of interest. One temple’s graphic representation shows a man in Buddhist hell lying on a board full of nails, depicting those who buy grain hoping the price will climb, or who engage in similar financially risky activities.33 The Ottomans also regulated interest-charging: the maximum permissible interest rate according to the Ottoman Law Books issued at the time of Bayezid II (1481–1512) was 15 percent.34

26 Rodinson (1997), 30, 42, 155.27 “[I]t is most reasonable for men to hate money because acquisition is made from

money itself and not by the use of money for the reason intended. For money was introduced for the sake of exchange (only), but the interest received increases its quantity, as the γókos (=“interest,” also “offspring”) suggests; for the offspring resembles its parents, and interest is money born of money and is therefore money acquired in the most unnatural way.” See H.G. Apostle and L.P. Gerson. Aristotle’s Politics. Grinnell: The Peripatetic Press, 1969.

28 Rodinson (1997), 240.29 R. Monier. Manuel de Droit Romain. Domat ed., 1954, 113.30 See Wesel, U. Geschichte des Rechts. Von den Frühformen bis zum Vertrag von

Maastrich. München, 1997, 111, 141, 328.31 See Exodus 22:24; Livitius 25:35–8, Deuteronomy 23:20–21, Ezekiel 18:7–8, 13.32 Luke 6:35.33 See C.A.S.Williams. Chinese Symbols & Art Motifs. Singapore: Tuttle Publishing,

2002, 453.34 Imber (1998), 145.


With the development of commerce in the fifteenth century, accompanied by the increased need for sourcing, some theologians, such as Jean Charlies de Gerson, Gabriel Biel, and Johann Mayr von Eck, argued that lending at interest was not always theft,35 though Pope Benedict XIV condemned usura in his Encyclical dated November 1, 1745.36 Note, however, that Emperor Charles V had already allowed Dutch merchants in 1543 to lend money at interest.

Karl Marx did not have a complete theory of interest, but Friedrich Engels suggested in a letter to Marx that at a certain future point of “revolutionary development, and with the help of a monopolist state bank,” interest rates [be] abolished or limited to a quarter percent.”37

Though economists justify interest as compensation for inflation, risk, scarcity, liquidity, and opportunity cost,38 some Islamic authors emphasize that “even in modern ‘capitalistic’ economic systems, interest does not perform so vital a function that its elimination will blunt the working of monetary policy.”39 These authors thus introduce the possibility of interest-free economy.

However, the difficulties of prohibiting ribā, which undergirds many Islamic countries’ economic systems, in modern Islamic law are well-illustrated in a 1992 Pakistan Federal Sharī’at Court decision. The Court considered whether about twenty major statutes regulating payments of interest, ranging from the Interest Act of 1839 to the Banking Ordinance of 1979, were un-Islamic. In its decision the Court rejected the distinction between interest in consumer transactions, for which ribā would be strictly forbidden, and interest on productive loans, where it could be tolerated. The Court thus concluded that the prohibition of ribā is a general and strict prohibition of interest in any form.

One argument to which the Court gave particular attention cast inflation and/or indexation as a possible exception to the strict bar on ribā. Here, the question was: if money depreciates, or if, on the other hand, indexation is possible by contract or state regulation, why should the value of the money lent, rather than the fixed quantity, not be taken into account? In answer to this question, the Court resorted to general principles of tort law, including the principle that “the usurper will not be required to indemnify the loss caused to the value of the property or

35 Johann Mayr von Eck declared the medieval ban on interest obsolete during disputations in Bologna, Vienna, and Augsburg. Thereupon, one of the canons at Augsburg cathedral characterized Eck as an “Apostolus mercatorum,” but Fugger, the super-rich banker and merchant from Augsburg, whom Martin Luther and Ulrich von Hutten declared to be an enemy of the people, appreciated, understandably, an apostle like Eck. See F. Herre. The Life and Times of the Fugger. Augsburg: Wissner-Verlag, 2009, 66.

36 Humanwissenschaft, 2, Mai/Juni 2005.37 MECW vol. 38, 419.38 See Keynes, J.M. General Theory of Employment Interest, and Money. New York

City: Macmillan, 1991, 165–93.39 See M. Ariff. Monetary and Fiscal Economics of Islam. Islamic Business Law.

Jeddah: International Centre for Research in Islamic Economics, 1982.


money as a result of a fall in its price,” and to more general principles of equity stating that “an evil … should not be redressed by a similar or a bigger evil.” Finally, the Court invoked political considerations: “Why should a lender be protected against inflation while the borrower is not similarly protected against deflation?”40 However, in this decision the Court contradicts recent Pakistani case law that allows for an additional fee to be charged on a loan in case of indexation or inflation; this is based primarily on the nineteenth-century treatise of the Hanafi jurist Ibn’ Abidin, who emphasized the need to repay the lender with “the real worth of the currency.”

Gharar—the second key feature of Islamic finance—is the prohibition of “trading in risk” or “risk-taking.” This may include, for example, exchanges where the term of payment is open, as in the sale of unborn animals. However, gharar only has legal consequences if the risk is excessive or pertains to the subject matter of the sale, and so long as the contract in question is not critical to society.41

On the other hand, transactions securing a legal act, as well as negotiable instruments (checks, bills of exchange) payable at fixed terms, are not against sharī’a in principle; they may therefore be regulated, which is the case in most Islamic countries. Contemporary jurists have also permitted the buyer to provide security and guarantees to the seller for his purchase under certain circumstances.42

Modern Capitalistic Financing

In light of ribā and gharar, it is interesting to examine how Islamic law developed in the field of banking and finance, neither of which are stringently regulated in Islamic law. This is even more interesting in the light of rapid developments in the international credit business. For example, in developed financial markets, so-called “structured credit products” emerged recently as tradable financial instruments. We will mention for illustration only two of them: credit default swaps and collateralized debt obligations arising out of securitization.

Credit Default Swaps

In brief, the general structure of credit default swaps includes the “protection buyer,” who purchases credit protection for one or a basket of reference entities (for example, USD, HKD, and EUR), and obligations of the “protection seller.” The “protection buyer” usually pays either a fixed periodic or a single fee to the “protection seller” for hedging credit risk. Payments to the “protection buyer” conditioned upon the occurrence of a credit event, which may include defaults on payments of the underlying obligations, bankruptcy, changes in the credit

40 Mallat (1988), 21–3.41 Schacht (1982), 146; Hallaq (1997), 108 and Moghul and Ahmed (2003), 6–7.42 Moghul and Ahmed (2003), 9.


spread, or even newly disclosed public information which may be hazardous for the reference entity.43

There are several kinds of default payments. One includes paying the difference between the fair market value or the initial price of the reference entity and the post-default value of the reference obligation. Another technique provides for the payment of a certain percentage of the principal, determined by the contracting parties, in exchange for the defaulted credit asset.

As mentioned above, a credit default swap may be constructed with regard to a single obligation or an identified portfolio of obligations. The latter, also known as basket-linked credit default swaps, are usually based either on the “first to default” practice, which triggers the default payments with regard to all the assets in the basket, or “some subsequent number of defaulting obligations in the portfolio, providing a ‘layer’ of credit protection after the first loss.”44 Compared to the other credit enhancement mechanisms, employing these types of credit default swaps offers more cost-effective means for hedging credit-risk exposure on the portfolio. In cases when a party owns a reference obligation, the credit default swap de facto turns into an insurance contract against default risk.

Credit default swaps, options, and indemnity agreements are all instruments for insulating the default risk on credit obligations and have functions similar to common guarantees, letters of credit, and other credit enhancement methods. The complexity of the credit default swaps stems from multiple factors such as the convoluted structure of the deals and the absence of a comprehensible legal framework, all of which make it extremely risky.45 Some experts argue that this complexity substantially contributed to the current global financial crisis.46

Collateralized Debt Obligations

The second example of a structured credit product is collateralized debt obligations. They are asset-backed securities, which are backed—or, literally, “collateralized”—by various debt obligations. Fabozzi refers to several types of possible collateral debt obligations supported by investment or non-investment grade corporate bonds, bank loans, distressed debts, and emerging market obligations.47

43 See Das, S. Credit Derivatives. Singapore: John Wiley and Sons, 1998, 40.44 B.E. Kayle. The federal income tax treatment on credit derivative transactions.

PLI/Tax, 638(173), 2004.45 In his 2008 yearly report to the shareholders of his Berkshire Hathaway company

Warren Buffet called credit default swaps a “financial weapon of mass destruction.” C. Knop. Erpressung mit Credit Default Swaps. Frankfurter Allgameine Zeitung, July 14, 2009.

46 Rückkehr der Gier. Der Spiegel, 31/2009, 60.47 F.J. Fabozzi. The Handbook of Financial Instruments. Hoboken: John Wiley and

Sons Inc., 2002, 483–502.


Like many other financial instruments, collateral debt obligations are predominantly driven by the economic motivation of the sponsors. Sponsors intend either to remove the debt items from their balance sheets (balance sheet transactions) or earn the spread between the cash flow from the collateral and coupon payments to the securities holders (arbitrage transactions).

Understanding collateral debt obligations is connected to and premised upon the notion of securitization. Borod defines securitization as “the aggregation and pooling of assets with similar characteristics (for instance, mortgages, different types of loans, credit card receivables) in such a way that investors may purchase interest or securities backed by those assets.”48 According to Scott, there are three kinds of securitization, including “substituting securities for loans,” “decomposing a large standard bank loan into loan participations,” and pooling smaller loans “to reach a scale that can tap securities markets.”49

Market actors must thoroughly understand the intricacies. The legal framework for such arrangements as senior/subordinated tranches, stripped mortgage backed securities, over-collaterization, and others are highly significant, not only for developed economies, but also for developing markets seeking new sources of financing and lagging behind their economically superior counterparts in terms of market-development speed and legislative innovations.

These financial instruments are steadily developing in the capitalist world. But the question of how Islamic banking and finance can develop within the limitations accorded to it by the Qur’an still needs to be answered. For example, because “structured credit products” contain a high degree of risk, sharī’a’s bar on gharar would void such products. On the other hand, Malaysia’s banking and finance systems are, for the reasons mentioned above, a good example, not only of how the Islamic banking and finance system is capable of developing, but also of how this system may coexist with conventional interest-based systems (all Malaysians may, without discrimination, choose Islamic or conventional interest-based banking and financial instruments for their monetary transactions).

Banking and Financing in Malaysia

The foundations of Malaysian banking law are the Banking and Financial Institutions Act of 1989 (BAFIA) and the Islamic Banking Act of 1983 (IBA). The former governs institutions conducting conventional interest-based financial activities and the latter governs those utilizing strictly Islamic products. Under both laws the main regulatory authority is vested in the central bank: Bank Negara Malaysia (BNM).

48 R.S. Borod. Securitization. Asset backed and mortgage securities. Salem: Butterworth Legal Pub, 1991, 1–9.

49 H.S. Scott and P.A. Wellons. International Finance. New York City: Foundation Press, 1998.


Islamic banking services in Malaysia do not alienate conventional banks. These banks have been allowed to offer the same product range as Islamic financial institutions, provided that conventional banks’ Islamic financial business “does not involve any element which is not approved by the Religion of Islam.”50 Thus conventional banks may offer financial products consistent with sharī’a within their existing infrastructure and without obtaining a special license under the IBA. This enhances Islamic banking and finance in Malaysia; virtually all Malaysian financial institutions are eligible to offer such services.

In order to streamline and harmonize interpretations of sharī’a among banks and takaful,51 BNM established the National Sharī’a Advisory Council on Islamic Banking and Takaful (NSAC) on May 1, 1997. The prime objectives of the NSAC are as follows:

• Act as the sole authoritative body to advise BNM on Islamic banking and takaful operations

• Co-ordinate sharī’a issues with respect to Islamic banking and finance (including takaful)

• Analyze and evaluate new products and schemes submitted by banking institutions and takaful companies in light of sharī’a.52

In March 2002 there were 128 branches of banks and 1,335 Islamic banking schemes at commercial banks licensed under the BAFIA. In addition, there were eight full-fledged branches of commercial banks licensed under the BAFIA using Islamic banking. According to Malaysia’s ten-year Financial Sector Masterplan, it is expected that Islamic banking will constitute 20 percent of the overall banking market in Malaysia by 2010. In October 2010 the multinational Islamic Financial Services Board established an International Islamic Liquidity Management Corporation in Kuala Lumpur with strong support from the Malaysian authorities. The corporation will deal with liquidity issues created by the financial crisis. Malaysia recently also unveiled plans to open its Islamic finance industry further by luring larger overseas banks to provide services that comply with Muslim tenets. Malaysia’s central bank also raised foreign ownership limits at local Islamic banks and insurance companies to 70 percent on April 27, 2009.53

50 Sect. 124 BAFIA.51 Takaful is a system of Islamic insurance in Malaysia based on cooperation and

mutual help. See Report on International Conference on Takaful 2003. Available at: http://www.islamicbanking.com/takaful/takaful_keynote-.htm (accessed August 31, 2005).

52 Available at: http://www.gov.my?index.php?ch=174&pg=467&ac=371 (accessed June 24, 2005).

53 Malaysia to seek large Islamic bank for international reach. Reuters Press Review, February 10, 2009.


Range of Islamic Banking Products and Services in Malaysia

The Islamic financial system in Malaysia now boasts an Islamic banking and capital market, including an Islamic equity market, an Islamic unit trust, an Islamic money market, and an Islamic insurance sector. Here we will concentrate on deposit, financing, credit card and other banking services, as well as some Islamic capital market instruments. Legally, these do not contain anything that could not be found in the laws of any western country; the difference between these financial mechanisms in Islamic countries versus western countries lies in the use of financial instruments complying with sharī’a.

Deposit

The products and services of deposits are savings and current accounts, and general and special investment accounts. Savings and current accounts are primarily based upon the trust of safe-keeping with guarantees. They are regulated by guaranteed safe custody contracts (al-wadīa yad dhamanah). This means that funds or goods are placed in a bank account or deposited with a trustee (wadīa). The bank or trustee invests the funds or goods in instruments approved by sharī’a, with express rights given by the depositor to utilize the amounts deposited. The depositor is not entitled to any share of the profit, but the depository may provide returns to the depositor as a token of appreciation.54 The liability of the trustee is limited to negligence or intentional misuse.55

Other accounts operate as investment accounts on the basis of profit-sharing (mudārabah). Mudārabah is an agreement between a capital provider and another party (such as an entrepreneur) enabling the latter to carry out business activities on a pre-arranged profit-sharing basis. Loss, however, is borne by the capital provider alone. Accounts operating on the basis of mudārabah offer no guarantee, as do guaranteed safe custody contracts, but they offer potential earnings on the agreed ratio of profit.

Financing

Financing, whether for personal purposes (financing houses or apartments, cash line facilities, or education) or business purposes (trade, equipment and land acquisition, leasing, or working capital) are the most important services financial institutions render. The Islamic banking services which follow here cater to these needs.

54 See Islamic Banking Concepts. (Online.) Available at: http://www.bnm.gov.my/index.php?ch=174&pg=-467&ac=368 (accessed June 24, 2005).

55 See F.E. Vogel and S. Hayes. Islamic Law and Finance: Religion, Risk and Return, 1998, 5–6.


Property Financing Properties, such as homes, are usually financed by deferred payment sale contracts (bai’ bithaman ajīl). The financier sells property to the customer on a deferred payment basis at a price that includes a profit margin to which both parties agree. Normally, the transaction is finalized in two steps: first, the customer enters into an agreement with the financier, under which the financier purchases property chosen by the customer for an amount specified by the customer. Second, the financier sells the property to the customer on a deferred payment basis at a price which is the aggregate of the amount paid by the financier and a profit margin agreed to by both parties. Normally, the payment is made in installments.

Trade Financing Several types of contracts are available for trade financing, including letters of credit issued on the basis of murabahah (sale plus cost). Murabahah is a sale with a disclosed mark-up in which the customer agrees to act as the agent of the financier in purchasing the goods financed, and the financier agrees to sell the goods at a jointly determined profit to the customer. Islamic banks often use LIBOR56 or other similar references as benchmarks to determine the amount of profit. Murabahah is also an instrument of trust receipt financing. But in practice the buyer in trust receipt financing is responsible for complying with all applicable laws and regulations, including those regulating the import of goods. Payments of penalties and fees for late payments, prohibited traditionally, are also allowed.57

Some conventional contracts are similar to certain Islamic contracts, such as letters of guarantee issued on the basis of the Islamic contract of kafāla. The term kafāla denotes a guarantee provided by a bank or other financial institution that meets the liability of an individual or entity in the event that they default on meeting their financial obligations. It is also an instrument of shipping guarantee.

Bay-al-dayn is another variety of Islamic contract similar to conventional debt financing (like bonds and debentures). This type of Islamic contract provides financing for business activities through the sale and purchase of trade documents (such as a bill of lading). However, only documents evidencing real debts arising from bona fide merchant transactions can be traded.

56 London Interbank Offered Rate.57 For example, the responsibility of the buyer is regulated in a murabahah contract

of the Faisal Islamic Bank of Egypt as follows: “The client is responsible for all other expenses, which are not included in the cost structure of this contract, and also for all costs arising from cancellation of a documentary credit, or refusal of the exporter to supply the goods. The client does not have any right to demand from the Bank any compensation in case the exporter refuses to supply the goods for any reason whatsoever.” See Moghul and Ahmed (2003), 26.


Equipment and Machinery Financing

A leasing contract (ijāra) followed by a purchase contract (al-bai) can finance equipment and machinery. Thus, leasing consists of a lessor leasing assets to a lessee for a specific period against a pre-determined rent. The benefit and cost to each party are clearly stipulated in the contract, which generally also includes a subsequent purchase contract under al-ijāra thumma al-bai. However, there are three fundamental differences between conventional leases and ijāra. First, with ijāra the lease begins with the delivery of the asset to the lessee and not with the signing of the contract; second, in ijāra the lessor must retain some risk of ownership, such as paying the property insurance and taxes, as well as maintenance costs.

Third, for goods that do not yet exist or must be built or constructed according to specifications, an istisna contract is used. Under the istisna contract the delivery of the goods at a future date is stipulated, and the payment is constructed on mutually agreeable terms, typically progressively as the manufacturing or construction develops.

Islamic Capital Markets Instruments

Islamic financial instruments in capital markets allow institutions the choice of issuing Islamic financial instruments, which eschew conventional lending structures and rely on methods other than lending on interest. Today, this market is mostly dominated by bai’ bithaman ajīl contracts (sale contracts with deferred payments).

Bai’ Bithaman Ajīl Structure: One popular type of Islamic bond issue is based upon a sale transaction with deferred payment terms. This is the same as the bai’ bithaman ajīl contract used in many home financing transactions under the Islamic Banking Act. Islamic bonds are often issued under this type of contract in accordance with a particular procedure.

First, the issuer of the bonds concludes a sale agreement with the financier according to which the latter purchases assets specified by the issuer, creating an obligation for the financier to pay the purchase price to the issuer. Second, the issuer then enters into another sale agreement with the financier according to which the financier sells the assets to the issuer. Third, the issuer owes the sale price to the financier, though this sale price is evinced through issuance of Islamic bonds setting out the deferred payment terms. Finally, the financier sells the Islamic bonds in the secondary market where previously issued securities are traded among investors.

Ijāra Securities Structure: Another possible Islamic securities structure is based on the ijāra contract. In this structure, the securities issued represent the right to the property generating revenue flow from lease income, which income is structured on specific payment dates and formulae. These rights to property are coupled with the express right to a specific portion of the revenue. These certificates can then be valued on expected revenue flow.


Ijāra securities structures consist generally of two parts. The first relates to revenue flow generated from the object leased under the ijāra contract, while the second relates to creating the right to the property evinced by certificates which are then issued. But bai’ bithaman ajīl also serves to procure cash line facilities, for club membership financing, education, revolving credit, share facilities, syndicated financing, term and tour financing, and working capital financing. Istisna contracts, like bai’bithaman also serve to finance services already mentioned, such as cash line facility, education, and personal and working capital financing.58

Treasury and Money Market Investments

The most important treasury and money market investment instrument is the bai’ al-inah. Through this investment instrument the financier sells an asset to the customer on a deferred payment basis and the financier then immediately repurchases the asset for cash at a discount. This instrument is used for BNM negotiable notes, government investment issues, Malaysian Islamic treasury bills, and sell and buy-back agreements.

On the other hand, investments in commercial papers are made by murabahah and the negotiable instrument of deposit by mudāharabah. Bai’ bithaman ajīl is also used for negotiable debt certificates.

Malaysia in 2002 issued a government-backed USD 600 million five-year global sukuk (Islamic bonds) with a yield of 0.95 percentage points over LIBOR. The underlying transaction consisted of a sale and lease-back involving state-owned land located around Kuala Lumpur. Since then, sukuk issuers have included real estate, aviation, construction, and petrochemical companies in Malaysia, Pakistan, the UK, Singapore, Bahrain, the UAE, and others. The Securities Commission of Malaysia announced that in the first six months of 2009, sukuk worth USD 4.8 billion were issued, compared to around seven billion for the whole of 2008.59

Card and Banking Services: Applicable concepts for card services are bai’bithaman ajīl (for credit cards) and ujr (for debit cards). Ujr means “fee” and refers to commissions or fees charged for services. It is also applicable for banking services such as cashier’s orders, demand drafts, standing instructions, stock broking services, funds transfers, travelers’ checks, and telebanking or foreign exchange.

Partnership Venture Capital

A partnership is called musharakah and involves the financier providing a portion of the capital needed for an entrepreneurial business undertaking with the

58 Range of Islamic Banking Products and Services in Malaysia. (Online.) Available at: http://www.bnm.gov.my/index.php?ch=174&pg=467&ac=370 (accessed June 24, 2005).

59 Malaysia paves the way forward. Poised to Lead the Global Sukuk Recovery. Advertising of Malaysia International Islamic Financial Centre (MIFC). Available at: www.mifc.com (accessed July 20, 2009).


agreement that both the financier and the entrepreneur will share the profits and losses on the basis of their equity participation. Venture capital transactions are called mudārabah and involve, like musharakah, a business undertaking where, unlike in musharakah, the financier provides all of the capital to the entrepreneur and bears all the risks of monetary loss against an agreed percentage of the profits.

Islamic Banking and Finance in the United States

Over one billion people worldwide are believed to be followers of the Islamic faith. In the United States, Islam is the fastest growing faith; the number of Muslims is estimated at five to six million. Islamic banking is estimated to be growing 15 percent per year in the United States,60 which is seeing a growing number of financial institutions lending in accordance with sharī’a.

One of the oldest is the American Finance House LARIBA, founded in 1997 and based in Pasadena, California. It offers home, auto, and small-business loans in 32 states, using the ijāra style of financing.61 In addition, global corporations such as Citicorps, ABN Amro, American Express, ANZ Grindlays Bank, and Chase Manhattan have in-house Islamic finance units. Also, the Bush administration placed significant importance on promoting Islamic finance for evident political reasons, hosting several “Islamic Finance 101” conferences in Washington D.C.62

In 2003, the year the Iraq War started, the United States created the Partnership for Financial Excellence (PFE), which consists of regulations from the Middle East and North African countries to promote greater transparency and cooperation between these nations and create regulatory guidelines to allow a free functioning market while maintaining safety and soundness in Islamic finance in the United States. In 2009, General Electric (GE) was one of the first western companies to issue a sukuk (Islamic bond), raising USD 500 million to finance the leasing of aircrafts.

Though it was expected that 2011 would see some companies follow GE, the presence and role of the Islamic finance market in the United States remains small and marginal compared with other western countries. To make the situation worse, debate on Islamic law fueled political contention in Oklahoma in November 2010, when a state constitutional amendment forbidding state judges to consider international or Islamic law in deciding cases passed with 70 percent of the vote. Judge Vicki Milles-LaGrange found that a lawsuit against the amendment had

60 However, anti-Muslim sentiment in the USA in the aftermath of September 11 has led many Muslims to withdraw their investments from Islamic alternatives. See B. Maurer. Articulating Islamic knowledge to an American dream: Islamic home financing alternatives after September 11, 2001. PoLAR 26(196), 2003, 2.

61 J.E. Carpi. Insuring Title under Islamic Restricted Financing, PLI/Real, 497, 2003.62 McMillen (2009), 2.15.


merits because the amendment’s “primary purpose inhibits religion,”63 but the amendment nevertheless demonstrates the mental attitude against Islamic finance in some areas of the United States.

There are two major problems for Islamic banking and finance in the United States. First, traditional restrictions on commercial banks’ abilities to own property for investment purposes effectively restrict the availability of murabahah, bai’bithaman ajīl, and istisna contracts, although ijāra agreements are permissible. Nonetheless, while musharakah and mudarābah appear to violate restrictions preventing commercial banks from engaging in partnerships or owing common stocks,64 the Controller of Currency has recognized that a commercial bank may take “as consideration for a loan a share in the profit, income, or earnings from a business or enterprise of a borrower.”

Second, banks assure the retail public on one hand that the instruments offered do not bear interest, while on the other hand they assert to tax authorities that the instruments do bear interest. This not only poses serious ethical problems but also leads to incoherent rulings.65 This latter problem is, of course, not limited to the United States but is also present in the EU. In addition, the Sarbanes-Oxley Act forces Islamic financing to comply with regulations that incur for these banks considerable costs.66

But Why Go Islamic in the EU?

About 20 million Muslims live in the EU. Thus, interest in Islamic financial products should be even higher in the EU than in the United States. In fact, the Department of Economics at Loughborough University in the United Kingdom offers a Masters of Science in Islamic Economics, Banking, and Finance. In addition, there are 55 colleges and professional institutions in Britain dealing with Islamic financing—more than anywhere else in the world.67 Finally, the number of potential Islamic banking and finance customers in the EU is high, particularly in Germany and France.

63 J.C. McKinley Jr. Debate on Islamic law fueled political clash in Oklahoma. The New York Times, November 16, 2010.

64 Though in 1999, the Gramm-Leach-Bliley Act (15 U.S.C.A. § 6712 or 6713(c)) significantly reduced restrictions imposed on American banks after the Great Depression For more on Islamic banking and finance’s problems in the United States, see also H. Ahmed. Not interested in interest? The case for equity-based financing in U.S. banking law. Entrepreneurial Bus. L.J., 2(479), 2007.

65 Moghul and Ahmed (2003), 14.66 C. Walsh. Ethics: interest in Islamic finance through Sharī’a law; resisted in

American business despite Sarbanes-Oxley. Fordham J. Corp. & Fin. L., 12, 2007, 753.67 Islamic finance in Britain is bigger than Pakistan’s. Reuters Press Review, February

10, 2009.


In the United Kingdom there are now five “fully sharī’a-compliant” banks, while another 17 leading financial institutions, including Barclays, RBS, and Lloyds Banking Group, have set up special branches or subsidiary firms for Muslim clients. The USD 18 billion in assets in Britain’s Islamic banks dwarfs the volume of such assets in some states where Islam is the main religion, including Pakistan, Bangladesh, Turkey, and Egypt. In addition, there are in the United Kingdom twenty sukuk issuances listed on the London Stock Exchange raising USD 11 billion, a sum exceeded only by the Dubai Nasdaq, which boasts seven sharī’a-compliant exchange-traded funds, twenty law firms supplying services in Islamic finance, and advisory services provided by professional service firms.

There is a considerable Turkish business community in Germany; the financial turnover of Turkish business in Germany was DM 3.45 billion in 1995 and this amount was expected to rise to EUR 100 billion in 2010.

In 1995, the annual income of some 1.85 million Germans of Turkish descent (this number according to other estimates is 2.5 million) was DM 18 billion, of which 97 percent was spent in Germany. Additionally, 20 percent of German Turks drive a Mercedes compared with only 7.6 percent of Germans.68

These figures clearly suggest a high volume of potential customers for Islamic financial products in Germany. Probably for these reasons, the eastern German state of Saxony-Anhalt used the ijāra structure in 2004 when it issued EUR 100 million worth of five-year Islamic bonds. The underlying transaction involved a sale of a special-purpose vehicle and leaseback to Saxony-Anhalt of several state-owned real-estate assets. Certificate holders are getting returns derived from the rent payments. However, the financing of homes, trade, vehicles, and equipment by Islamic rules has been less successful in Germany.69

The German Commerzbank set up an Al-Sukoor Fund to offer shares to the public in 2005. Shares of companies producing weapons, tobacco, or alcohol, those whose debt rate is higher than 30 percent, and those whose income from interest is higher than 5 percent are not included in this Fund.70 Further, the Bahrain-based Islamic lender Al-Baraka Banking Group is planning to enter the French market to tap into Western Europe’s largest Muslim community.71

The Union Bank of Switzerland adopted a similar approach in the choice of investments for its Islamic Investment Fund.72 However, restrictions like those above are not necessarily detrimental to the profitability of Islamic banking in Europe, as the case of Al-Dar Islamic Fund of the Pictet Bank in Geneva shows.73

68 A. Caglar. Encountering the State in Migration-Driven Transnational Social Fields: Turkish Immigrants in Europe. Habilitation: Freie Universität Berlin, 2002, 97–8.

69 Islamic Bonds Are Booming. The Wall Street Journal Europe, May 30, 2005.70 Zinsen verboten. Die Welt, July 1, 2005.71 Bahraini Islamic Bank Eyes French Operations. Reuters Press Review, April 22,

2009.72 Wilson (1990), 2.73 Zinsen verboten (2005).


In 2009, France amended art. 2011 of the Civil Code in order to attract investors from Islamic countries and boost the sukuk market.74

Despite attempts to introduce Islamic banking and finance in Europe, there is considerable legal uncertainty with respect to Islamic finance in Europe, as shown by the case Investments Company of the Gulf (Bahamas) Ltd. (“IICG”) v. Symphony Gems N.V. & Others (“Symphony”),75 the first case brought before a United Kingdom court that concerned the construction of an Islamic financial transaction.76

In this case, claimant IICG in January 2000 entered into a murabahah financing agreement (the “Contract”) with the defendant Symphony. According to the Contract IICG would provide a revolving purchase and sale facility to enable Symphony to purchase precious stones and gems. Thus, the Contract contained a Purchase Contract whereby IICG would purchase the gems from a supplier and sell them to Symphony upon an irrevocable offer made by Symphony. The offer identified the gems to be financed, the supplier, the date IICG was to pay the supplier (the “Settlement Date”), the purchase price payable by IICG to the supplier, and the sale price payable by Symphony to IICG. The Contract was intended to comply with sharī’a, but English law governed and the dispute was subject to the exclusive jurisdiction of the English courts.

In February 2000, Symphony identified Precious Ltd. (“Precious”) as the supplier of a very large quantity of rough diamonds. IICG proceeded to make payment to Precious in full, without having obtained any payment from Symphony. When Precious failed to deliver the rough diamonds, Symphony refused to pay IICG, asserting non-delivery of the goods, claiming that the contract was illegal because some parts of the transaction were subject to the laws of the Kingdom of Saudi Arabia, where the Contract would be prohibited, and finally arguing ultra vires77 according to the laws of Bahamas where IICG was chartered.

The court rejected the claimant’s defenses and held that the absence of delivery could only arise because Symphony failed to make the necessary arrangements, and that the portion of the transaction subject to Saudi Arabian law was so minor that the principle of illegality could not be invoked.

Besides the general legal uncertainty pertaining to Islamic finance in the EU, there are at least four other obstacles to applying Islamic banking and finance law in the EU: mandatory consumer protection regulations of the EU, tax issues, dispute resolution, and the activity of the sharī’a supervisory boards.

74 See http:// www.nortonrose.com/knowledge/publications/france-changes-its-civil-code-to-attract-islamic-finance-23125.aspx (accessed December 27, 2011)

75 See Q.B. com.ct. 2002 WL 346969. February 13, 2002.76 According to Moghul and Ahmed (2003), 27 as of yet, no commercial case

involving Islamic finance has appeared in a US court. But as far as we can see the same is also valid for other European countries than the UK.

77 The doctrine in the law of corporations that holds that if a corporation enters into a contract that is beyond the scope of its corporate power, the contract is illegal.


Here, we will focus on the legal comparison between the United Kingdom and Germany.

Mandatory Consumer Protection Regulations

Offering Islamic retail products in the United Kingdom and Germany means that these products must both comply with the principles of sharī’a and conform to consumer protection, banking, tax, and other regulations of these countries. From this point of view, the application of sharī’a poses certain problems in these two countries as well as other European countries. The legal systems of the United Kingdom and Germany—as well as other European countries—provide for very few financial products. It seems unlikely that more exemptions will be given in the near future. For this reason offering Islamic retail products poses challenges in different legal areas. Here we will focus our attention on consumer protection, tax issues, and dispute resolution, which is, in this context, tightly connected to consumer protection.

One of the most popular, and also typical, Islamic retail products is financing of cars and other chattels, as well as real estate. Some difficulties arise in these areas, however, though they are not insurmountable from a legal point of view.

In Islamic countries the financing of cars, for example, is based on a murabaha contract.78 In this transaction, car defects could create difficulty since European banks are unwilling to take responsibility for potential defects because their core business is far from such activities. This kind of difficulty could theoretically be avoided by transferring to the buyer the right to claim against the car dealer, as is done in financial leasing. However, in financial leasing the financier (the bank in this case) remains the owner, unlike in the murabaha structure. Thus, financial leasing cannot always avoid the bank assuming responsibility for potential defects of the car.

The murabaha structure raises even more problems with respect to EU consumer protection rules. According to Article 3 of the EC Directive 1999/44 of May 25, 1999 (Sale of Consumer Goods), a commercial seller (in this case the bank) may not avoid its warranty obligations if it sells a new chattel to a consumer. It cannot avoid these obligations or transfer them to another party, even if the party and the bank agree. Thus the bank, under the murabaha structure, must assume full responsibility for the car during the warranty period, should the car become defective.79

Nevertheless, in the United Kingdom, as well as Germany, there are options for car financing according to sharī’a. In the United Kingdom there is the communal option and the commercial option. The first is an association to which the buyer makes regular contributions, and upon expiry of a fixed period of time, takes out a quard hasan (interest free loan). This kind of financing resembles nineteenth-century credit cooperatives. The disadvantage of the communal system is that it

78 K. Balz. Islamic finance for European Muslims: the diversity management of Shari’a-compliant transactions. Chicago Journal of International Law, Winter 2007, 551.

79 Balz (2007), 551.


is not suitable for the community at large. The commercial scheme offered by Islamic Bank of Britain is based on a tawarruq structure, the Islamic legitimacy of which is disputed. The tawarruq structure is a sharī’a-sanctioned compliant financing solution designed to provide liquidity needed for a transaction. It consists of buying goods with delayed payment and reselling them in order to obtain cash money immediately. In both cases, however, the economic advantage compared to traditional financing is doubtful.

In Germany, one may undertake financial leasing with a purchase option (murabaha-ijāra structure), ijāra being a contract of hire and lease. However, the difficulty of reconciling financial leasing with sharī’a has already been discussed.

Tax Issues

In light of the difficulties of reconciling Islamic finance with Western legislation, some writers suggest that legislatures should give exemptions to Islamic finance, at least for schemes based on murabaha transactions. The reason is that in murabaha transactions the bank acquires ownership of goods, and by reselling them to end-users, the title transfers again; thus triggering transfer taxes twice, though the bank will own the goods only for a moment.

So far, neither United Kingdom tax regulations nor the German Real Estate Transfer Tax Act have provided for tax exemptions for such transactions. However, the United Kingdom has amended its tax laws to exempt Islamic home finance from the double stamp duty, though other activities do not enjoy the exemption. Thus, the United Kingdom Finance Bill of 2009 introduced measures for Stamp Duty Land Tax, Capital Gains Tax, and capital allowance rules for land transactions involved in the structuring of sukuk instruments; these measures are intended to remove existing tax barriers in these areas.80 No such exemptions exist in Germany. Only the Animal Welfare Act (Tierschutzgesetz) provides for an exemption for ritual slaughtering (Das Schächten), which could be, theoretically at least, understood as a precedent for exemptions to be provided for financial activities based on religious consideration.81 France is currently changing its tax system to allow Islamic financial institutions to provide services to France’s five million Muslims.82

80 G. Walmsley. Another year of growth and development for the London Stock Exchange market for Islamic finance. Available at: http://www.londonstockexchange.com/specialist-issuers/islamic/downloads/islamic-finance-review2010-11.pdf. (accessed March 15, 2012).

81 Balz (2007). 82 Reuters Press Review (April 22, 2009).


Dispute Resolution

The field of dispute resolution is another where Islamic financial issues remain unsettled, because in retail matters parties may enter into Islamic transactions with the expectation that these transactions conform to sharī’a. How would the courts react in the United Kingdom and Germany in cases where the contracting parties agreed on sharī’a as applicable law? The first possible solution would be to vest state courts with authority to rule on Islamic financing disputes. This would be consistent with the general approach in consumer matters. However, at least in Germany, judges possess little knowledge of sharī’a, though there is some precedent in family law where the judges took serious efforts to determine the content of disputes according to sharī’a. The same cannot be said for commercial disputes. A state court will, when in doubt, always apply state law.83

The Beximco case is a good example of this.84 In this case, the customer, Beximco, defaulted, and Shamil Bank, an Islamic bank, sued for payment. The murabaha agreement contained the following provision on applicable law: “Subject to the principles of the Glorious Sharī’a, this Agreement shall be governed in accordance with the laws of England.” Beximco argued that this provision means that the principles of both sharī’a and English law must be observed and that the agreement violated Islamic law because the agreement was invalid and, therefore, the borrower is not obliged to pay.

The English Court upheld the decision of the London High Court, explicitly rejecting Beximco’s argument by finding that the agreement was subject solely to English law. It referred to the Rome Convention of the Law Applicable to Contractual Obligations, which states that “[a] contract shall be governed by the law chosen by the parties.” Article 1 of the Rome Convention, however, states that the Convention “shall apply to contractual obligations in any situation involving a choice between the laws of different countries.” This means that only a national legal system is a valid choice of law, as the Rome Convention does not contemplate the choice of a non-state legal system such as Islamic law. In addition, the Court characterized the principle of sharī’a as representing a socio-religious code of conduct, something different from, and at the same time, more and less than a classic state legal system. The Court concluded that English law is distinguished internationally for its popularity and high quality should therefore not be diluted by religious principles.

In Germany, conflict of law rules do not permit Islamic law to be chosen to govern agreements. This stems from Article 27 of the EGBGB,85 which prohibits cumulative choice of law. Consequently, one may assume that German courts would reject the choice of Islamic law as submitted to the London High Court

83 Balz (2007).84 Ibid.85 Einführungsgesetz zum Bürgerlichen Gesetzbuch (Introductory Law to German

Civil Code).


to the extent it is not codified in state law. However, according to some writers, the contracting parties may incorporate into the contract individual principles of Islamic law, but they must do so in a concrete, specific manner.86

An option different from submitting disputes to state courts would be referring the dispute to arbitration, as arbitration tribunals have more freedom regarding the rules they apply to the dispute. Thus, if the parties wish, arbitration tribunals may decide a dispute according to the principles of sharī’a. Some writers suggest that this pattern has worked well. However, in most jurisdictions consumer matters are exempt from arbitration. Legislatures in most countries are concerned that arbitration tribunals may not properly protect the weaker party in a dispute, because, according to recent experience, arbitration tribunals are reluctant to apply consumer protection rules, or else apply them arbitrarily. Some writers therefore suppose that members of Muslim communities would not receive full consumer protection by arbitration tribunals as intended by the legislature.

Therefore, a further option could be to set up a permanent appellate body dealing with Islamic financial disputes whose decisions are subject to scrutiny and review by the courts, as suggested by Kilian Balz. As an arbitration tribunal, it could be less restrained with respect to the legal principles it applies and more flexible with respect to the judges it appoints. Banks involved in Islamic finance and staffed with specialists in Islamic law could establish this appellate body.

The Sharī’a Supervisory Boards’ Activities

Islamic financial institutions are advised on religious matters by committees known as the “Sharī’a Advisory Committees” or the “Religious Supervisory Boards.”87 However, the pronouncements of the boards of various financial institutions differ, so that a similar financial product approved by the board of one financial institution may be rejected by another. Also, a product accepted as sharī’a-conforming in one country may, confusingly, be rejected in another.

This situation is caused, in part, by the lack of uniformity in the religious principles applied by sharī’a scholars in different financial institutions and various countries. However, these differences may also be partially explained by disparities among the four different legal schools of thought. For these reasons and others, such as the shortage of sharī’a scholars, payments of exorbitant consultation fees to sharī’a scholars, and the potential problems of conflict of interest, conflict of duties, breach of confidence, and insider dealing, the composition and activities of sharī’a supervisory boards are not without problems.

These problems may, however, be circumvented by establishing a universally accepted central religious authority representing the different schools of thought.

86 Balz (2007).87 H.S.F.A. Jabbar. The Sharī’a supervisory board: a potential problem in Islamic

finance. Comp. Law, 2008, 29–32.


Harmonization efforts made by the sharī’a boards of the Accounting Organization for Islamic Financial Institutions, the Fiqh Academy of the Organization of the Islamic Conference, the Islamic Jurisprudence Institute of the Islamic League, the Islamic Development Bank, Bank Negara Malaysia, and Suruhanjaya Sekuriri (Securities Commission of Malaysia), among others, move in this direction.88

Conclusions

Obviously, at least some will choose Islamic banking and finance for religious reasons. For European banks, offering Islamic financing is certainly an additional means of advertising and attracting a certain segment of customers. However, if such customers would compare the competitiveness between purely commercial banks and Islamic banks, it would be necessary for them to have full information not only about credit terms but also about legal consequences of the kind of financing chosen. However, in practice choosing will not always be easy, even choosing among Islamic banks.

Thus, with murabahah, though the mark-up may easily be calculated on a percentage basis, competing banks may offer varying credit amounts for different terms of credit.89 Also the comparison between an ijāra leasing contract containing installment payments and a murabahah contract with straightforward calculations of fees and their terms of payment may be cumbersome for many clients. The comparison between financial products offered by Islamic and ribā-based banks would even be more difficult. In addition, legal consequences between Islamic and ribā-based financing should be taken into consideration. Thus, for example, in the case of default on installment payments, the payment of interest will not fall due in Islamic financing, unlike in ribā-based financing.

For many Islamic banks in countries offering both Islamic and non-Islamic finance, the problem of attracting depositors is less important than finding customers for murabahah, mudārabah or musharakah contracts. The reason may lay in the uncertainty of religiously acceptable alternatives to ribā-based financing.

Apart from simple financing of housing and vehicles, complex financing in the EU by Islamic legal methods faces the difficulties discussed above. Also, depositors could not expect lucrative state orders as compensation for their interest-free deposits as is often the case in some Islamic countries. Here, the problem of transplantation of legal institutions from one legal system to another becomes obvious. The Islamic banking and finance systems are, for European lawyers, too confusing, contextual, and complicated to make sense in their new environment.90 For many scholars it therefore remains a “clumsy device” which “disguises a

88 McMillen (2009), 108, 11.89 Wilson (1990), 21–2.90 N. Martin. The role of history and culture in developing bankruptcy and insolvency

systems: the perils of legal transplantation. B.C. Int’l & Comp. L. Rev. 28(1), 27.


loan at interest as a double sale and an unredeemed pledge.”91 Thus, for these scholars, the interest-free loan is “naïve utopianism,” an “idealistic conception,”92 because there is no Muslim state today that would have the courage to introduce the prohibition of interest.

91 Imber (1997), 145.92 Rodinson (1997), 153.

Part IV Extremism and Security

Chapter 11

The Danish Cartoons Crisis Revisited1

Lisbet Christoffersen

The Danish cartoons controversy of 2005–2006 provides an interesting case study for examining a number of tensions long simmering below the surface of the religious-secular dialogue. On the surface, dearly held European and Western values of free speech and expression came into conflict with equally valued Muslim religious sensitivities to insults to their religion and to their prophet Mohammed. Below the surface, the controversy has provided a fertile field for scholarly debate about a number of other competing values, and about how the matter might have been handled differently. As tensions have escalated, deescalated and escalated again, however, there has been hesitation about whether it is possible to analyze the situation in meaningful ways for people outside of Denmark, all of whom have their own understandings of not only what the problem is, but also what the Danes must be like that they should cause such difficulties.

The story of the cartoons’ genesis is important. Apparently at a social event, a Jyllands-Posten editor was chatting with a Danish author who was having trouble finding an illustrator for a children’s book about Mohammed. All those he contacted had flatly refused to draw any picture of Mohammed, for fear of provoking violent repercussions from Muslims. The murder of Theo van Gogh only one year earlier and several other then-recent incidents of Muslim violence were fresh in their minds.2 The conversation about this author’s search for an

1 This chapter builds on a book the author has co-edited with Professor Jørgen S. Nielsen on Sharī’a as Discourse (Ashgate 2010) as well as a book in Danish, published with the author as editor, published while the cartoons crisis was still running, and a third book, also sponsored by the Copenhagen research program “Religion in the 21st Century,” written by a group of scholars in Law and Religion in Multicultural Societies. Edited by H. Petersen et al. Copenhagen: DJØF Publishing, 2008. Her contribution there analyzes the question of “religion as a factor in a multi-layered European union legislation,” that is to say, within the context of the European constitutional ideas of freedom of religion, equal treatment, common political regulation of relations between religious and secular dimensions of life, and religious influence on political life.

2 J. Hansen and K. Hundevadt. The Cartoon Crisis—How it Unfolded. Jyllands-Posten, 2008. Available at: http://jp.dk/udland/article1292543.ece (accessed March 15, 2012). The same authors published (in Danish) a more detailed analysis of the affair in a book entitled “Provoen og Profeten” (The Provocateur and the Prophet) in 2006. The cartoons as they originally are available at: http://s7.photobucket.com/albums/y300/Demian_w/Cartoons/-?action=view&current=DanishCartoons.jpg (accessed March 15, 2012).


illustrator was carried back into the offices of Jyllands-Posten, and over the next several days it enlarged into a debate over free speech and self-censorship to avoid confrontation with Islam. The editors were aware of several other instances of Danish institutions self-censoring in an effort to avoid offending Muslims, and of Muslim violence to enforce that self-censorship. Kurt Westergaard, who drew one of the most offensive cartoons, later explained that

In the months leading up to the publication of the cartoons, Islamists had launched one attack on Danish free speech after another. A well-known author had been unable to find an artist who would dare to illustrate a children’s book on Muhammad. A concert was stopped by radical Muslims who claimed that music is un-Islamic. The culmination of these events occurred when a lecturer of Jewish descent at Copenhagen University was abducted in broad daylight by a gang of Arabs and severely beaten for having recited from the Koran as part of his course.3

The editors decided to respond to these incidents by making a statement about free speech in Denmark. They invited about forty members of the Danish cartoonists’ guild to draw cartoons depicting Mohammed as they saw him, and received 12 cartoons in response. The cartoons were published on September 30, 2005,4 along with an essay by editor Flemming Rose that explained the paper’s purpose:

Some Muslims reject modern, secular society. They make demands for special treatment when they insist on special consideration for their religious feelings. That stance is irreconcilable with a secular democracy and freedom of expression where you have to be ready to accept insults, mockery and ridicule. It’s not always pleasant and nice to experience, and that doesn’t mean religious principles should be made fun of at all costs, but those considerations are secondary in this context.5

Some of the cartoons were innocuous, and some actually made fun of the editors of Jyllands-Posten themselves, referring to them as “reactionary provocateurs” or suggesting that the paper was engaged in a “publicity stunt.” Others depicted Mohammed in an unflattering light. Perhaps the most controversial of these was Westergaard’s portrait of Mohammed himself, with his turban supporting a round bomb, the fuse alight and burning. Another provocative scene depicts a line of newly-blown up suicide bombers, clothes tattered and still smoking, approaching

3 K. Westergaard. Why I Drew the Cartoon—The “Muhammad Affair in retrospect.” The Daily Princetonian, 1 October 2009. Available at http://www.dailyprincetonian.com/2009/10/01/23967/ (accessed March 15, 2012).

4 The Cartoons are widely available on the internet, and can be viewed, for example, at: http://www.aina.org/-releases/20060201143237.htm (accessed March 15, 2012).

5 See http://www.aina.org/releases/20060201143237.htm (accessed March 15, 2012).

The Danish Cartoons Crisis Revisited 219

Mohammed in the heavens above. He apologizes, hands stretched forth in chagrin that they have “run out of virgins”, a clear poke at the oft-reported Muslim belief that those who die in suicide bombings will receive such a reward.

The editorial debate over self-censorship and free speech was promptly followed by a debate within Copenhagen’s Muslim community over how to respond to them. Some imams were offended but not overly so; others wanted a spirited response. At length, Muslim embassies in Copenhagen were enlisted in the affair, and protests were made to the Danish government, the United Nations, and the Organization of the Islamic Conference (OIC). The Danish Prime Minister, Anders Fogh Rasmussen, declined to meet with a delegation of ambassadors from Muslim countries who wanted him to punish the paper, saying that while blasphemy was an offense under Danish law, their recourse should be through the courts. The publication of the cartoons also provided fresh fodder for a long-standing effort by the OIC to pass a UN Resolution prohibiting insult to any religion, and especially to Islam.

Not satisfied with the results of their efforts in Copenhagen, some Danish imams flew to the Middle East to enlist support there, with copies of the offending cartoons in their hands. In addition to the 12 cartoons that had been published, they carried several other, more offensive cartoons that had been received privately by individual Muslims. Some of these unpublished cartoons reportedly depicted Mohammed as a pig, or having sexual intercourse with a dog.6 Middle Eastern media outlets apparently reported that a Danish newspaper had published all of these images and more, as well as a report that a Qur’an was to be burned in the public square in Copenhagen. A firestorm began to brew. Muslim imams and press outlets not only exaggerated the facts but fanned the flames, and violence broke out on February 4, when Danish and Norwegian embassies7 and commercial buildings in several Middle Eastern capitals were attacked and burned; flags were torn down and burned; Danish products were boycotted; and some 150 people lost their lives. Most of the dead were Muslims.8

Now this case must be revisited in order to report how it, along with the national discussions which followed, has changed understandings of law and religion, and, perhaps more importantly, how it has also changed understandings of freedom of religion. Since the crisis, academic analysis of religion and society has changed, and it has become apparent that religion and security may be intertwined. The

6 Westergaard (2009). 7 The Norwegian embassy was targeted because a Norwegian newspaper had

re-published the cartoons in a show of solidarity with Jyllands-Posten’s point about free expression of ideas. In fact, many other newspapers around the world republished the cartoons. List available at: http://en.wikipedia.org/wiki/List_of_newspapers_-that_reprinted_Jyllands-Posten%27s_Muhammad_cartoons (accessed March 15, 2012).

8 M. Gerstenfeld. The Muhammad-Cartoon controversy, Israel and the Jews, A Case Study. Jerusalem Center for Public Affairs, 43, 2006. Available at: http://www.jcpa.org/phas/phas-043-gerstenfeld.htm (accessed March 16, 2012).


nature of religion as a national security issue has become the subject of analysis in ways unforeseen before the cartoons were published. As a result of these 12 small cartoons in a Danish newspaper, Islam has become identified as a security threat in such a way that it is difficult in the public debate, in academic analysis, and in individual reflections, to understand and to solve the attendant problems.

Was the Crisis in Copenhagen or in Pakistan and Damascus?

The first dichotomy has to do with which crisis we are talking about. Who caused the crisis? In the Danish language the case is called “the Mohammed crisis.” In English it is most often called the “cartoons crisis” and in some references, including in the programs of some academic conferences, it has even been called “the Danish cartoons crisis.” This of course has to do with language—a direct translation of “the cartoons crisis” is odd in the Danish language—but the language also reveals the Danes’ understanding. Were the real problems created by the cartoons published in Copenhagen, or by Muslim masses and governments in the Middle East and elsewhere, which exaggerated or misrepresented the facts, used the issue to gain political points with their populations, and ultimately allowed embassies to be burned down? Could a more receptive Danish response have averted the rage that ultimately built to such a violent head? Did the crisis occur in Copenhagen, in Damascus, or in Pakistan?

Some scholars have analyzed the cartoons case as a question of a prohibition against imagery generally—pictures and images of not only the holy, but of all living creatures. The roots of this prohibition are found not only in Islam, but also in the Jewish faith and several confessional dimensions of Christianity. Scholars have shown that the prohibition has not been absolute, but that it has been contested historically, as well as currently. The prohibition is widely understood to be still in force when it comes to imagery of not only God (as in Judaism and maybe Christianity) but also of the Prophet Mohammed in Islam. For example, the pre-eminent Danish book on the cartoons crisis9 displays on its cover a miniature of Mohammed, veiled but present, in order to ask whether a prohibition against imagery is really still upheld in the modern age of globalization and, therefore, whether it really was the making of pictures which caused the problems. Was it the mere depiction of Mohammed itself or the more insulting cartoon of Mohammed with a bomb in his turban that really caused such deep offense—or were the cartoons used politically in the Middle East?

The general view nationally as well as internationally has been that it is the cartoons themselves which caused the problems. Mohammed is a holy prophet in Islam, and in Denmark they have made jokes about him.

9 Lisbet Christoffersen (2006) (red.): Gudebilleder. Ytringsfrihed og religion i en globaliseret verden. København: Tiderne Skifter.


Freedom of Speech vs. Blasphemy

The reaction to the cartoons also raises the question of whether it is reasonable to criminalize blasphemy in modern democratic societies. At present, Section 140 of the Danish penal code provides a broad prohibition against blasphemy in these terms: “Those who publicly mock or insult the doctrines or worship of any religious community that is legal in this country, will be punished by a fine or incarceration for up to four months.”10 This statute has a very long history in Danish criminal law, but only three cases have been brought under its provisions in the last 70 years.

One of the first cases involving this statute arose in 1938, and involved blasphemous Nazi attacks against the Jewish faith in Denmark. After 1938 there were other attempts to try to bring cases against extremely offensive pictures, films and so forth, but none of them resulted in convictions. The most recent case tried under Section 140, from 1971, resulted in acquittal.11

Alongside the constitutionally-based freedom of religion that has existed since 1849, Section 140 clearly expands the definition of “blasphemy” to cover all religions. It is thus not correct to interpret the Danish blasphemy ruling as a protection of Christianity. It is an effort to protect public peace in Danish society by protecting members of all faiths from such conduct.

This means that Danish Prime Minister Anders Fogh Rasmussen was legally correct when he told Danish Muslim leaders, in a letter dated October 21, 2005, that “Freedom of speech is the very foundation of Danish democracy. Freedom of speech is far reaching and the Danish government has no means of influencing the press,” and that “according to the Danish constitution, complaints against statements in the press are matters for the courts.” This was his reaction when the ambassadors of several Middle Eastern countries wanted him to take action against the publisher, with the result that a half year later portions of the Middle East burned for several days, all supposedly because of the publishing of 12 cartoons in a Danish newspaper and a Danish prime minister who would not take any action towards the newspaper. The question seen from the Danish perspective was: What action was the government supposed to take? Even though freedom of speech is not unlimited, in Denmark any possible limits are set by the courts, not

10 Section 140, Danish Penal Code. See The Director of Public Prosecutions. Decision on Possible Criminal Proceedings in the case of Jyllands-Posten’s Article ‘The Face of Muhammad’, March 15, 2006. See also http://www.rigsadvokaten.dk/media/bilag/afgorelse_engelsk.pdf (accessed March 16, 2012) for a legal evaluation of the cartoons as a violation of the blasphemy provision of Danish law. The Danish Constitution of 1849 establishes the Danish Lutheran Church as Denmark’s official church, supported by the state. Freedom of religion is granted in § 67 and official discrimination based on faith is forbidden in § 70.

11 See Director of Public Prosecutions (2006).


by the government. Here, at least, almost all Danish observers agree that a right to a legal ruling is also a basic democratic value.

After the publication of the cartoons, various Muslim organizations in Denmark tried to bring a case in the Danish courts. Such a case can only be brought, however, if the public, through the attorney general, allows the case to be heard before the courts. Based on a very sound legal analysis, however, the attorney general found that because the cartoons and their accompanying text indicated that the editors’ purpose was to exercise their right to free expression, to respond to the various violent actions by Muslims that had caused fear among the Danish population, and to stimulate public discourse about an important political issue, the publication did not amount to an “insult to the doctrines or worship” of Islam.

The prosecutor’s analysis also cited several decisions of the European Court of Human Rights for the proposition that the right of free expression is a fundamental freedom that should be liberally construed, and that national authorities had a special role to play in balancing “decisive regard for the freedom of expression” with the duty to avoid, as far as possible, “expressions that are gratuitously offensive to others.” Therefore, no prosecution for blasphemy took place. The argument for upholding the broad blasphemy rule was that it protects religious groups that might be subjected to a political movement such as Nazism. More recent propositions suggest that the state should simply uphold laws against racist and hate speech and widen them to cover religious groups as well.

Majority vs. Minority

The question of the blasphemy ruling being in force for all religious groups also has to do with the dichotomy of the Minority vs. Majority. In a society where more than 80 percent of the population not only belongs to the majority church, but where this church is also built into the administrative and governmental structures of the state,12 it is very necessary to protect religious minorities from being viewed as the cause of the problems. In the early nineteenth century, when Denmark was already deep in debt and reeling from war with Britain, when the state had gone bankrupt, and when Norway had gained its independence, to be shared with the Swedes for the following 100 years, Copenhagen had to face another deep scandal in the form of riots against the Jewish community. At that time in 1814, Denmark was still a Lutheran absolutist monarchy, but Catholic and Jewish communities, among others, were recognized. The public started to attack the Jewish community, not only in words, but also physically. Here, the government could have done as the Danish government did during the first cartoons crisis and simply declared it to be a problem for the courts.

12 The Evangelical Lutheran Church shall be the Established Church of Denmark, and, as such, it shall be supported by the State. Danish constitution of 1953, Section 4. Available at http://www.servat.unibe.ch/law/icl/da00000_.html (accessed February 12, 2010).


At that time they were wiser, however. The government instead suggested to the Jewish community that Jews could gain citizenship on the condition that they give up their own legal rules and processes and follow the law of the land. In other words, the government relieved some of the tension about “Jewishness” coming from both sides, the side of the minority (by granting them citizenship) and from the side of the majority (by upholding a common legal ruling).

The Danish government did also eventually become wiser in regards to the cartoons crisis. Neither the prime minister nor the foreign minister continued to engage in high-level public arguments that the offended parties could go to the courts. Instead, public diplomacy became more subtle and clever.

Facing Real Problems vs. Hate Speech

The next question is whether one of the cartoons in particular—Mohammed with a turban in the shape of a bomb—was problematic, maybe even constituting hate speech, since it could be seen as identifying Islam with terrorism and with bombing innocent people. On the other hand, was it precisely that cartoon that was confronting most directly the issues, as evidenced in the Danish Embassy case in Pakistan, by illustrating, as many Danish observers would argue, that some Muslims were in fact making terror in the name of Mohammed and on the basis of Islamic ideas?13 Was that not precisely what this cartoon was warning against? Other cartoons warn against parallel abuses within other religions in manners which could be understood as hate speech towards religious people, but they too, on the other hand, could be seen as a warning against the abuses of religion.

What concepts and understandings are we dealing with here? One is that there is a difference between the real world and the world as it is perceived or constructed through the media. This knowledge works both ways. I have previously noted, for example, that, following the crisis, the Middle East was “burning.” But that is exaggerated. Not all people living in the Middle East, by any measure, were trampling on the Danish flag and burning Danish embassies, and not all authorities in Middle Eastern countries tolerated such happenings. Likewise, not all Danes—not even all non-Muslim Danes—are anti-Islamic, and the fact that most Danes accept political cartooning as a way to confront authority—all authority—and especially all religious authority—may indicate that many Danes are anti-authoritarian, but it does not mean that all Danes are anti-religious or anti-Islamic.

13 This is precisely why Kurt Westergaard drew this cartoon. In his words: “My picture was an attempt to expose those fanatics who have justified a great number of bombings, murders and other atrocities with reference to the sayings of their prophet. If many Muslims thought that their religion did not condone such acts, they might have stood up and declared that the men of violence had misrepresented the true meaning of Islam. Very few of them did so.” Westergaard (2009).


Understanding this, however, also leads one to understand that there is no such thing as a restricted meaning of “freedom of speech.” This in turn suggests that what one says in Denmark is exclusively a Danish question; how people understand relations between religion and freedom of the press in Syria is a Syrian question; and so forth. However, for good or ill, this is no longer possible in the globalized world. Today the global media, especially the internet, make it possible for a local—even private—issue to remain visible for a very long time.

But not only is the media going global—people themselves are going global. In an interesting manifestation of globalization, people are carrying their nationalistic religious convictions and practices with them wherever they go in order to uphold their national roots through religious and cultural institutions. For example, Danes working and living outside of Denmark may build and sustain Danish churches as possibly their last link to “the old country.” On the other hand, those who remain in Denmark, who perhaps travel around the world but always return to their homes, in some dimensions of life are changing themselves as they adjust to other ways of living. At the same time they uphold their old hymns in the national language, for example, and thus combine reflections on the content of religion with national memories.

The cartoons crisis has thus been understood by some as a conflict about hate speech towards Muslims. Seen in a Danish context, it is much more a conflict about the role of religion with what could be seen as the Danish mentality. Even though—or as some would say, precisely because—Denmark has a state church including more than 80 percent of the population, religion does not play a crucial role in the Danish society. And those who take their religious identity too seriously are often ridiculed in order to teach them how religion is perceived “here in our country”—in Rome, do as the Romans; in Copenhagen, do as the Danes.

Islamists vs. “Nativists”

The dilemma of confronting real, deeper problems as opposed to just hate speech, however, has another, more complicated dimension. We may see the cartoons crisis as the starting point, but also base this understanding on various other incidents: the Rushdie crisis in England (and the Danish part in it where the prime minister did not know whether he dared to invite Salman Rushdie to Denmark); the murder of Theo van Gogh in Holland over his film which discussed religiously legitimized violence towards married women; and the situation of Ayaan Hirsi Ali, the Dutch-Somali female politician, who was awarded a political prize by the leading Danish political party that controlled the government 2001–2011—all of these situations together have formed a political dichotomy of Islamists vs. “Nativists.” This argument suggests that there is a war of values taking place, that Islamism in practice is widespread in Europe as well as in Denmark, and it hopes to take over from within by being friendly and seemingly democratic until the day


of the takeover, be it brought on by a democratic majority or through a forceful overthrow, or a combination of these.

The book Islamists and Naivetists14 presents this notion. It is written by a female politician, member of the liberal-conservative government 2007–2009 (after having earlier been minister in a socialdemocratic government), and her husband, a political analytical journalist for the same newspaper which published the cartoons. In their book, they draw on examples of takeovers in recent European history—for example, the National Socialist takeover in Germany in 1933, the communist takeover in Prague in 1948, and the Hungarian situation in 1956—and they examine how these takeovers have been understood in other cultures afterwards. Concretely, they use the play of Max Frisch, Biedermann und die Brandstifter (The Fire Raisers), with Biedermann as an example of a Dane who just wants to live in peace and be friendly with those around him and who therefore does not react when real terror presents itself. Terrorism and the academic concept of Islamism are seen as the new threats in this context and are compared with Communism, Nazism, and Fascism, which in Denmark are currently being analyzed and written about by groups of researchers, especially in Aarhus. The concepts are very vague; there is no real way to grasp or identify who is an Islamist, who a terrorist, and who is just a firm believer. It has become part of the political as well as the academic discourse that those who do not understand the concepts of Islamism and extremism are simply naïve fools, helping the revolution by doing nothing.

This anxiety over Islamism, terrorism, security, and so on, has meant that large amounts of economic resources are being transferred to the police and other security systems in order to protect society. Sometimes it appears that the whole issue is just a pretense for job creation: someone earns his or her money by producing techniques and technology which are seen as protective for everyone, and therefore society must find an enemy to fear—in this case, terrorism—to justify these efforts. Religion, and specifically Islam, is seen as the enemy from which we need protection and thus there is a securitization taking place.

On the other hand, most scholars lack the information and skills required to evaluate whether a real danger exists. The academic community must ask if it is possible to acquire research which is not bound up by these dichotomies, and not ordered by, for example, police forces looking for more money, research which could help us to truly and reliably understand the religious dimensions of modern terrorism.

Related to the need for reliable research is another scientific struggle which has again emerged since the cartoons crisis, namely over the question of what religion is and how we can investigate it. Is religion something people do, which means that the only relevant phenomena to investigate are the behavior of those who claim to be religious? And, if necessary, can and should their behavior be changed, so that we can understand religion as a social construct? Or are there

14 Karen Jespersen and Ralf Pittelkow (2006). Islamister og Navister. Et anklageskrift (Islamists and Naivetists. An indictment). Copenhagen: People’s Press.


normative cores which themselves cause the followers to act in specific ways, which means that it is relevant to research the normative content or possible normative contents of different religions? This has come to be known as the essentialist vs. constructivist dichotomy, and its consequence has been not only academic animosity that is appearing in many places, but also a continued lack of understanding of the phenomena to be examined.

Secularists vs. Religious Autonomy

The final group of dichotomies this chapter examines has to do with the arguably forced and false construction of two opposite positions revealed in European and Danish public and personal life. Europeans and Danes are to an increasing extent conceptualized as if they were either secularists or religionists. Reality however is, e.g. in Denmark with 80 percent of the population as members of the national church, that people intertwine religious and secular approaches to life. There exist broad populations who are members of and enjoying the use of religious communities—churches, mosques and the like—as part of their life without letting church leaders decide matters in their lives which they see as entirely private or belonging to the secular sphere. These broad groups of Europeans are finding themselves increasingly marginalized while both the secularists and religionists argue the existence of this dichotomy.

The secularists see the dichotomy as an attempt to privatize all religious practice and self-understanding, leaving these dimensions of life out of the labor market and other aspects of social and political life. Religion, in this view, becomes a private matter. The religious communities see the dichotomy as an attempt to secure legal autonomy for the leadership of the communities so as to rule over their members in all matters, on the basis of religious norms as they are interpreted by the same leadership.

This view raises the question of to what extent Islam’s legal code, that is, sharī’a, is a valid legal system in Europe? It stirs questions of individual rights vs. group rights. It examines religions as parallel societies within multicultural societies, as opposed to another set of legal norms intertwined with one common legal system. This addresses, for example, recommendations within the Danish parliament to dissolve Hizb-ut-Tahrir as being an undemocratic, violent association, and suggests that only religious communities loyal to Denmark should receive public acknowledgment. It has also led parliament to decide that judges in courts are prohibited from wearing head scarves or any other religious symbols while performing their duties. These suggestions were followed by suggestions that head scarves should also be prohibited for teachers and others working within common popular institutions, which however did not lead to any legislation. All these political suggestions are new, meaning they did not appear until shortly before the cartoons crisis, meaning again that part of the reaction within the Danish Muslim population towards the drawings had to do with the fact that the Danish society


is changing from a practice of not interfering in the religions of others to one of trying to clear the public sphere from religious practices. And this again opens the question of whether there will still be space for reasonable mutual acknowledgment from the two sides of the discussion.

Conclusion: Changes vs. Exportations?

It has been observed that constitutional laws are often changed as a result of revolution or war. One might add that church-state relations in any given society are difficult, if not impossible, to export. Even if possible, it is not clear who would export and import those relations and their subsequent adaptations.

Often, it seems as if the private-public dichotomy in the field of law and religion is upheld in the interest of organized religion, not necessarily in the interest of the people. In the Danish and academic discourse that followed the cartoons crisis, many argued for a privatization of all religions. But is that necessarily the right way to go? Or could it be that more “publication” of religions, meaning more transparency for them, and more public religions in public spaces than private religion in private rooms, also legally speaking, would bring more gains for society in the end and more likely prevent new wars in the name of religion? Professor Rik Torfs has called this a contract model. Another way to describe it would be as “intertwinement,” that is, an intertwinement between public human rights norms and religious normative understandings in order to provide for religious groups a place as contributors in society as a whole.

If this could be brought about, many others might join many Danes in coming to understand that religious pluralism in a globalized world needs to focus more on diplomacy in order not only to maintain security, but also good relations all around.

Chapter 12

Islam, Muslims and Islamism: On Culturalization and Securitization

Petra Weyland

The Rising Interest in Islam

In the last three decades or so, interest in Islam and in Islamism, its politicized version, has grown tremendously. The origin of the increasing concern was the Islamic revolution of Iran in 1979. Then the West’s major adversary, the Soviet Union, imploded. There were already observers at that time who predicted that Islam and Muslims would soon be seen as the West’s new opponent, as the old communist foe had become history. Huntington’s Clash of Civilizations between the Islamic and the Western cultures, among others, which was published in 1993, did much to support this assessment. And yet, until the beginning of the nineties, his analysis was hardly adequate to describe reality. The attack of 9/11 and its aftermath, however, have done much to turn Huntington’s thesis into a self-fulfilling prophecy. From that time on, the Muslim and Western worlds have increasingly seen each “Other” as a monolithic entity with whom peaceful relationships are impossible to maintain. The events of 9/11 also added a new term to the vocabulary: Islamic terrorism.

Although interest in Islam and Islamism has risen greatly during the past few decades, only a minority of observers has developed a genuine and open-minded curiosity about this religion and its political counterpart. Surveys show that the large majority of Western media and people see the Islamic religion and even Muslims negatively. A recent opinion poll by PEW Global Attitudes project clearly demonstrates this negative stance, as the authors conclude that

Ethnocentric attitudes are on the rise in Europe. Growing numbers of people in several major European countries say they have an unfavorable opinion of Jews, and opinions of Muslims also are more negative than they were several years ago.

The authors found that

Fully half of Spanish (52 percent) and German respondents (50 percent) rate Muslims unfavorably. Opinions about Muslims are somewhat less negative in Poland (46 percent) and considerably less negative in France (38 percent).


About one-in-four in Britain and the United States (23 percent each) also voice unfavorable views of Muslims.1

Similarly, the introduction to an anthology about Islamophobia in Germany states that “Islamophobia in Germany is not a theoretical construct, there is evidence of it every day” and that “Islamophobia is broadly based and pervades all layers of society.”

It may come as no surprise that the public’s negative opinions are also reflected in the media. Hafez/Richter2 in a study about public television stations in Germany

have shown that reports about Islam tend to be much more negative and conflict-oriented than accounts about other topics. Most of the statements related to Islam and Muslims concentrate on conflict, violence and international terrorism, and only rarely do they feature positive aspects of Muslim life. Media coverage, at least in Germany,3 therefore mirrors—and strengthens—the general public’s biased attitudes towards Islam and Muslims.4

Since 9/11 and the terrorist attacks in European cities, besides negative views and Islamophobia, other emotions are haunting the Western mind: fear and the feeling of being threatened. Fear is on the rise because of global jihadism and Islamist movements like Hezbollah, Hamas and the Taliban. “Sleeper cells” and “home grown terrorism” are stoking the Westerners’ nightmares. These negative feelings have become rampant since Europeans became aware of the Muslim immigrant communities in their very midst—Muslim immigrant communities which are also more and more assertively demanding equal rights.

Given the predominance of these negative attitudes and fear it comes perhaps as no surprise that Muslims and Islam are perceived as potentially putting security at risk. The Muslim population and certainly political Islam are seen today as major security concerns because they are thought to harbor considerable potential for radicalism, extremism, and hatred of the West. Accordingly, this view is also reflected in national security doctrines and the agendas of transnational organizations.

1 On Islamophobia in Europe, see: EUCM (2006); see also Königseder (2008). For a similar analysis in the US see Caindar (2008) and Hagopian (2004).

2 On the same topic and similar conclusions, see also Schiffer (2005).3 The situation in the US seems to be similar, as Morlino’s study (2004: 73) indicates:

His in-depth case study about mainstream American media shows “the rush to judgment and assumption of guilt when reporting on Muslim and Arab Americans; the failure to report all the facts when they were readily available; the reluctance or outright refusal to correct erroneous reporting; and the indulgence in speculation and defamation informed strictly by bias and ignorance.”

4 Here is a recent example from Bavaria`s leading daily. A commentary about an assault in Cairo`s tourism area stated: “It is certainly correct that in Islam the inhibition threshold for violence is lower and the tendency toward violence is higher than in a Christian environment … ” Münchner Merkur. February 24, 2009, 2.

Islam, Muslims and Islamism 231

Consequently, the military, intelligence, police and Muslim immigrant communities themselves have been tasked with going after the Islamist threat.

Culturalization, Islamization, Securitization

To be sure, many parts of the Muslim world are today suffering from considerable degrees of violence. Immigrant communities are also facing severe problems, which sometimes find expression in radicalism. In the overwhelming majority of cases, the root causes of these problems must be seen in adverse political, social, and economic developments in the post WWII era. Globalization has also negatively affected living conditions of large segments of the population in the Middle East. In the overall public discourse, however, these structural root causes are seldom addressed. Rather, problems are thought to stem from a Muslim religious mindset which is supposedly incapable of accommodating itself with the modern secular world. By seeking the reasons for societal, economic or political crises, as well as for radicalism and extremism in the Islamic culture and religion, problems are culturalized and Islamized. According to this understanding, the very essence of Islam is enshrined in its holy book, the Qur’an. And as long as Muslims adhere to this holy scripture of the early seventh century, Islam will be incompatible with secularism, and Muslims will be caught in their opposition to modernity. An often quoted case in point of this conception is sharī’a law, which is seen as irreconcilable with universal human rights. The common verdict in the West, therefore, is that as long as Muslim believers insist on the essence of their religious tenets as enshrined in the Qur’an and sharī’a law and do not make them compatible with the standards of modernity, Islam and Islamism will be a danger for Western societies.

Islamization5 in our context means that every aspect of the interrelationship between the Muslim world and the West is seen through the prism of the religion of Islam and even more, as a matter of scriptural interpretation of a holy text from the early seventh century. Islamization is a mechanism by which societal problems are understood to emanate from the specifics of an Islamic culture which never went through a period of enlightenment as Christianity did. This perception also regards Muslims as a homogeneous entity with no internal differentiation among themselves as to their attitudes towards religion and politics. Islamization thrives on a simple mechanism: human beings who are very diverse in terms of their social and cultural characteristics, with regard to their ethnic background or their relation to the religion of Islam, are reduced to a kind of homo islamicus. If not modernized, the homo islamicus’ belief and living practices are irreconcilable with life in the twenty-first century.

5 See on Islamization of Islam al-Azmeh’s groundbreaking study (1993). For the Islamization of the Muslim immigrant communities in Europe, see Tiesler (2007).


Furthermore, the homo islamicus is “securitized” because he is understood as posing a security threat to Western societies: headscarves, mosques and minarets, the burka—all undermine Western Leitkultur. Hamas’ Katyushas are a serious threat for Israel because this organization believes that Israel eternally belongs to the House of Islam. “They” hate and fight “Us” for what we are, not for what we do.

Creating the “Self” and the “Other”

One important reason for the Islamization and securitization of people living in the Middle East and of immigrants to Europe might be seen in the general feeling of insecurity and loss of control and identity growing among all peoples since the beginning of the new century. With material conditions worsening at an ever increasing pace, the lower classes and large segments of the middle class all over the world are facing deteriorating living conditions. Globalization has tremendously enlarged the poverty strata everywhere in the world. The UN’s millennium aims of 2001 of cutting in half the number of those suffering from hunger have not been achieved; on the contrary, neoliberalism and the financial crisis of 2008 have not only enlarged the percentage of the poor and pushed them further below the poverty line, but they have also led to the downward mobility of considerable parts of the middle class. This is a global trend from which the Muslim population has not been exempt.

Whenever states withdraw from providing basic services in the realms of health, education, welfare, justice and security, the population is forced to look for alternatives. Those who can afford it will buy these services from private enterprises. Those who cannot will eventually see no other option than to rely on ethnic or religious networks, and sometimes also extremist political parties. In this process, the ethnic/national or religious community is (re)invented. This to a considerable degree explains why Islamic religious identity has been on the rise and with it, Islamism—Islam turned into a political ideology and an alternative socio-cultural vision. Because secular nationalist ideologies have failed to deliver, because immigrants have been denied equal participation, the nearby alternative is to identify with the Islamic umma, a strictly Islamic morality or—for the more active elements—with a politicized version of Islam. Relief is found in alternative and Islamic forms of modernity. This explains the success of Islamist organizations in the Muslim world which, contrary to state administrations, have been largely free of corruption and provide professional social welfare programs.

Comparable forms of “Othering” are taking place in Western societies. In Europe, for example, globalization has made identification with national and even local identities more important. A significant case in point is resistance against any further EU enlargement, and especially against Turkey becoming a member of the EU. And where radical Islamism accommodates the demand of an extremist potential on the fringes of Muslim societies, in secularized Europe, the extreme right is flourishing and providing a new sense of identity to its adherents.


In all these struggles to re-stabilize an individual’s or a society’s “lifeworlds,” the mechanism of “othering” is key, as it draws on an (often fictitious) common racial or religious heritage. By creating an outsider, an “Other” who, because of racial or religious background, is alien to “Us,” one’s own identity is buttressed. The uncertainties of life in a globalized world become easier to endure when the reason for one’s predicament can be projected on an Other. In this way, intangible anxieties become a face, a Muslim face, and the energy encapsulated in such feelings can be transformed into fear of Islam, an energy which may then be channeled into activity: by monitoring and fighting the perceived Islamic threat, by voting against the building of mosques and minarets, by creating laws against the burkas, by fighting honor killings.

That which makes this image of the Muslim Other particularly strong in Europe is the fact that it is well engraved into the European historical narrative. Most Europeans vaguely remember history lessons in school where they learned that it was only as a result of Karl Martell’s victory on the battlefields of Tours and Poitiers in 739 that Europe did not fall to Islam. They recall that the Ottoman Turks conquered large areas of Europe’s east and were only stopped at Vienna, which was under Muslim siege twice. They have a faint memory of Martin Luther fighting not only the Catholic pope, but also the “false prophet.”

Historian Jean Delumeau (1978), in his history of fear in the Occident, describes in great detail how fear was prevalent in Europe during the age of the Renaissance. As in today’s world, people then were suffering from great insecurity. At that time, people were facing tremendous difficulties to which there were no simple solutions: plague epidemics, crop failures, hunger, the advancement of the Ottoman army, wars, and religious schisms. Delumeau narrates how at that time, “Others” were constructed as the source of evil responsible for these crises. The “Others” at that time were either Jews, who were the “murderers of Christ,” or women witches, and Muslims, who believed in a false prophet. They were all supposedly part of a conspiracy with the devil and therefore had to be fought against.

As a matter of fact, there were many instances where Islam and Europe cooperated and were on friendly terms—the merchant state of Venice and its relationship with the Muslim world being only one example. There also have been times when Europeans indulged themselves in romantic fantasies about the Orient—Mozart’s operas to this day give proof of that. Today a “positive” mode of “Othering” may be found in the tourist business where a folklorized “Orient” with its belly dancers and Bedouin tents is staged. However, these positive forms of othering fade away in the face of the centuries-old negative representations of Muslims and Islam. It is Europe’s collective memory of Islam as its perennial adversary which allows the image of the Muslim Other to be so easily accepted today.

To be sure, Europe has, in its history, created other Others that it has been far more obsessed with—the obsession with the Jews found its culmination in last century’s Holocaust. After the Second World War, the communists were for a while the most important Others. Eventually, migrant laborers originating from the borders of the Mediterranean became “othered.” Interestingly, at that time,


the focus was not on the Islamic Other. Instead, attention since the early 1960s has focused on the “Gastarbeiter” from Turkey, on the “foreigner,” and not on Muslims as a group. Seidel, taking Germany as a case study, makes this point:

In the 1980s and 1990s the debates regarding the influx of migrants did not revolve around the religious issues; instead the debates focused on questions about the influx of foreign crime, development of parallel societies, and immigration due to marriage. These issues defined the media discourse. Describing the cultural and social differences between immigrant groups and the majority population, science, politics and journalism largely renounced consideration of the religious context. 6 (Author’s translation, P.W.)

Nor did xenophobia during that time focus on Islam; rather, it focused on ethnicity and race. According to Seidel, this would change only with the murder of Dutch filmmaker Theo van Gogh by an Islamist extremist in November 2004. Since then, voices critical of Islam have seen a sharp increase in Europe7—and they are even honored with freedom awards: Thus, for example, German Chancellor Merkel awarded Kurt Westergaard, the creator of the controversial “Muhammad cartoons” a Media Award for his contributions to freedom of opinion. Debates about integration have become increasingly Islamized. “Guest workers,” “asylum seekers,” and “foreigners” have reappeared as “Muslims.”

To conclude, the processes of creating the “Self” and the “Other” run parallel, and they gather momentum at an ever increasing pace.

Racism and the Duty of “Never Again”

Schiffauer provides an interesting explanation of why until the nineties the majority of ethnic Germans showed no particular interest in the religion of Islam as a source of “Othering.” He explains why Germans during the eighties took to the streets in large numbers to protest when the homes of Turkish families and asylum seekers were set on fire by the extremist right, even though they were far from welcoming the presence of guest workers and asylum seekers. The reason, according to Schiffauer, has to be seen in a particular form of reasserting German identity. German national identity is built on the historical obligation of the children of the Nazi regime: preventing the return of history. Never again should Germans turn a blind eye to attacks against minorities. People taking to the street in protest with candles were a visible sign of how seriously this historical responsibility was being taken.

6 See Tezcan 2007:55 for a similar observation with regard to Germany, Great Britain and France.

7 See, for the situation in France: Silverstein (2008) and for the situation in Austria: Bunzl (2008).


Two decades later, Schiffauer observes, this aspect of German national identity no longer finds expression in the obligation to protect minorities. Instead, today it is Germany’s constitution and identity which must be protected from the Islamic “Other” which is determined to impose its alien values on Germany, values which are supposedly irreconcilable with Germany’s secular constitution.8

As much of the political mainstream would subscribe to this understanding, it comes as no surprise that right-wing political organizations see themselves at the forefront to defend Germany’s Christian-Jewish heritage. Not surprisingly, spokespersons of this trend have become quite prominent in the media and public, where they appear as the “critics of Islam” (“Islamkritiker”).9 According to Widmann, “Posing as concerned observers, their representatives exploit debates about Islam in general and anti-Semitism among Muslims in particular in order to amplify the influence of populist extremists, right-wing intellectuals, and Christian fundamentalists in public discourse.” (Author’s translation.)

The critics of Islam present this religion as the greatest danger of our times, because for them, Islam is an ideology of violence and of enmity towards Jews, women, homosexuals, and democracy. In their eyes, Islam equals Islamofascism. Preventing Europe from turning into “Eurabia” therefore is their way of fulfilling the obligation of “never again.”10

8 Schiffauer (2007) mentions another reason why protecting the constitution from the encroachment of the Muslim Other has recently become so important in Germany. The reason is the increasing self-assertion of second generation immigrants. As a growing number of well-educated children of the guest worker generation in Germany is no longer willing to accept the inferior status German society has placed on them, they are increasingly demanding equal opportunities in the shaping of German society and politics. Germans, Schiffauer argues, still find it hard to accept that people who are not ethnic Germans, who even insist on their Muslim identity, should be given equal rights. Making it one’s duty to protect our secular constitution from Islam is a way out of this challenge. Instead of redefining the German identity in such a way that it includes immigrants as part of the German nation, efforts are concentrated on the endeavor to preserve the old German national identity built on ius sanguinis. This may explain why the German public has become so obsessed with preventing the building of mosques or with public school teachers wearing a head scarf.

9 See http://www.pi-news.org and http://www.akte-islam.de (accessed July 18, 2011); Ye’or, 2005.

10 Other nations have developed similar attitudes towards Muslims, but the narratives are different. In the US, for example, the focus is on the notion of patriotism, Caindar (2008), 13 argues. She observes how in the wake of 9/11, “the idea that Arab and Muslim terrorists were hiding in America under a veneer of normalcy, just waiting to attack, struck fear into the hearts of Americans. … Since terrorists were alleged to be Arabs and Muslims posing as normal persons residing inconspicuously in “our communities,” close observation of them was not only necessary but also possessed of an air of patriotism.”


A specific group category of the “critics of Islam” are this religion’s renegades: the self-proclaimed, activist ex-Muslims,11 especially women.

It is interesting to note what valuable objects young, intellectual, (ex-)Muslim women have become for the mainstream media. Born into Muslim families where they experienced severe repression by male family members, they have turned their backs on Islam and made it their mission to tell the world their dire, authentic experiences of growing up in a Muslim environment. As the anti-Muslims’ darlings they have been given ample opportunity to alert the public to the potential dangers of multiculturalism and its willingness to concede ever greater space to the Islamic religion. A telling example in this respect is Necla Kelek, a sociologist researching Muslim immigrant communities, who in November 2010 was awarded the freedom prize by Germany’s Liberal Party.

Questioning the disproportionate attention women like Necla Kelek in Germany or Ayan Hirsi Ali in the Netherlands have been given does not at all put into question personal traumatizing experiences. Many immigrant women do indeed suffer from extreme hardship with which lawyers, researchers and social workers are all too well acquainted. What is to be criticized, however, is that these experts Islamize the traumata of immigrant women, by seeking the reasons in (traditional) Islam: The bomb is not searched for in adverse social conditions, but in the Messenger of Islam’s turban, as Westergaard’s cartoon insinuates. These young, well-educated, and articulate modern women, who were born into Muslim families, are invaluable for the media’s sensationalism and for a Western public that is in need of reassuring its own fragile identity: after all “we” do not treat “our” women the way Muslims do. In fact, we even assist those who fight the suppression of Muslim women. If ethnic Germans openly voiced their anti-Islamic sentiments, they run the risk of being labeled racists. Supporting these women and racist cartoonists, however, means taking seriously one’s commitment to preserve Germany’s and Europe’s liberal constitutions and its “Christian-Jewish heritage.”

Social Capital, Political Power: Capitalizing on “Othering”

Needless to say, the attractiveness of Islam’s renegades for the media and the general public certainly also has its advantages for the critics themselves. Ayan Hirsi Ali would probably be no more than a migrant from Africa suffering from all the forms of open and disguised racism that a young, black female refugee faces, had she not reinvented herself as an authentic, female, ex-Muslim voice telling the public the truth about Islam. This perhaps is a rare opportunity, where an immigrant woman may turn her gender, color of her skin and religion—which are only too often a severe obstacle for participation—into a resource for the accumulation of cultural and social capital.

11 http://www.ex-muslime.de (accessed July 18, 2011).


Renegades, when they become spokespersons for the “Muslim community,” play significant roles in the process of Islamization. So do organizations claiming to represent the Muslim community in their countries of immigration. State authorities are increasingly opening their eyes to the fact that immigrants are suffering from a number of structural problems, like poor educational levels or high percentages of unemployment. They are afraid that an increasing number of youths turn their back on their “host” societies because they feel they are not given a chance to participate anyway and therefore become increasingly hostile towards their non-immigrant environment. Authorities are therefore increasingly looking for counterparts in organizations representing immigrants. These counterparts have been found, among others, in Islamic umbrella organizations. Interestingly enough, research has shown that these umbrella organizations represent only a minority of Muslims: Halm observes that the public effect of these groups quite obviously is out of proportion to the size of their clientele. Also, immigrants originating from Muslim countries have never conferred any democratic legitimacy on these religious organizations. The result again is that whatever the problem is, be it the media, state authorities or spokespersons claiming to represent the community—they all culturalize and Islamize by putting the focus on Islam. This, of course, gives considerable social and cultural capital to those self-proclaimed speakers of the “Muslim community,” capital which may be converted into political power.

Securitization: “Germany’s Security is Also Defended at the Hindukush”

It does not come as a surprise that since 9/11, the intelligence services, the law enforcement, the interior ministries, and the military have all, in their respective fields of responsibility, become increasingly active in monitoring Muslim communities and in countering Islamism.12 An ever growing number of experts on Islamic terrorism are offering their services. Other institutions, which until recently have not dealt with extremism, have joined this effort, such as ministries of development and agencies dealing with immigrants. In addition, transnational organizations, not just the UN and NATO, but also the EU, have become engaged in the war on terrorism committed in the name of Islam.

12 All these agencies make a point of emphasizing that their activities are not directed against the religion of Islam or against Muslims per se, but against Islamism. Free practice of one’s religion, after all, is a human right guaranteed by virtually all Western constitutions. In the spheres of politics, the security business, the media, and public opinion, this distinction often appears as a kind of Mantra constantly repeated but without much practical relevance. It also is highly questionable whether this kind of abstract, binary distinction between Islam as a religion and Islamism as political Islam can be drawn in the reality of social practices where myriads of different combinations exist. It would therefore be more appropriate to conceptualize a continuum ranging from cultural and religious to political, radical and finally extremist expressions of Islam.


Concomitantly, definitions of security have become much more encompassing. During the Cold War, security meant preventing a Warsaw Pact attack on West European territory. Today the West has adopted an “enlarged concept of security,” comprising anything from weapons of mass destruction (WMD), trafficking of drugs and human beings, to illegal immigration, pirating, climate change, pandemics, cyber-attacks and failing states. Terrorism, in fact, figures prominently on these agendas, and though it is nowhere explicitly stated, terrorism most often means Islamic terrorism.

As a result of redefining a wide range of structural problems as security related issues, security agencies have been given the primary responsibility for dealing with all these questions. So far, however, they have scarcely been able to prove that they are actually able to solve them. On the global scale, this is particularly true with regard to the “global war on terror.” Over the years, it has become increasingly clear that current efforts of counterterrorism and counterinsurgency have aggravated rather than solved this issue. Nowadays, it is in fact often stated that the military is not able to find a solution for the terrorist threat. This practical experience, however, has not led to any significant redefinition of security or to any substantial reallocation of resources to other agencies deemed more apt to engage with terrorism. Even more so, the general public today puts great trust in the security assessments of their political elites, and by and large, it consents to the security measures implemented to prevent and counter terrorist acts—even if it infringes on the freedom of liberal democracies.

Speaking in the theoretical framework of the Copenhagen School,13 Muslims are not only culturalized and Islamized, but they are becoming increasingly securitized. According to this school of thought something becomes a security problem not because the empirical reality determines something to be a danger, but because experts declare something to be a security risk. Conventionally, defining something means giving a name, or describing a certain preexisting empirical reality. The Copenhagen School, however, points to the importance of speech acts: what on the surface appears as a sound description of a preexisting dangerous reality actually only becomes a security related issue when a speech act defines it as such. For our discussion this means that Muslim societies are harboring a potential threat to Western societies because it is the security experts’ judgment—their speech act—which renders Muslim communities a security threat. These experts’ definitions also become speech acts because they are not dismissed as irrelevant, but on the contrary are acted upon by politicians and security agents, and widely accepted by the general public. Principally, alternative definitions of Muslim countries and communities would be possible—they could be described as suffering from enormous developmental problems, from the effects of a failed immigration policy, from the downsides of globalization—but this is not the predominant way of seeing them. Rather, they are today understood as a threat to the modern world because they have been defined as such by those with the

13 See, for Copenhagen School: Buzan et al (1998).


power of definition. The fact that such speech acts are accepted by the public, and that law enforcement agencies act upon them, gives proof of the power of those who define. A good example of this mechanism is the former German Minister of Defense declaring that the Taliban in Afghanistan pose a threat to German security and that consequently, the German military must defend Germany’s security at the Hindukush. This assessment was largely accepted by the German public, and the German Parliament afterwards mandated the deployment of German soldiers in Afghanistan. Similar definitions have been accepted in other countries.14 Whether, in which sense, and to what degree Islam, Muslims and Islamism—or the Taliban, for that matter—de facto endanger us is only rarely debated: the experts’ definition is taken for granted and acted upon.

These definitions typically have been designed by experts working in the security business, experts who have, therefore, come to play an important role for the securitization of Islam, Muslims and Islamism. Schiffauer shows that when it comes to expertise on Islamism, the German public today puts greater trust in security professionals than in academics. Social scientists who remain outside of the security business are seen as naïve, too theoretical, too distanced from reality, and as playing down the threat. Experts who work for the security establishment, on the contrary, are believed to be more realistic and knowledgeable. Brannan et al. made a similar observation when they stated that terrorism studies increasingly rely on secondary sources supplied from governments, intelligence agencies, law enforcement, and “anti-extremism” watchdogs. They conclude that the bulk of research done in this field is not neutral but relies on agenda-driven information.

Threat and Risk

Securitization finds expression in a mushrooming security and anti-terrorism industry that detects, monitors, describes, measures, debates and counters the terrorist threat wherever it may appear.

14 Interestingly enough, Delumeau (1978) has described a similar process of securitization in his book on the history of fear in Europe. He shows that over time large segments of society have lived with a general fear of hunger, devastation and death. But he also shows that initially these fears were not linked to a specific Other. This changed when the powerful Catholic Church began to canalize this faceless anxiety into fear by constructing the hostile Other—Jews, Muslims and women as the source of all evil. Interestingly enough, the general populace at that time did not view Islam negatively, on the contrary: people’s experiences with Islam at that time, Delumeau shows (vol. II, chapter 8.2), were quite positive—often contrary to their experiences with Catholicism in power. What is largely unknown today is that at that time many people actually converted to Islam. Therefore, the Catholic Church had an interest in changing people’s minds about Islam and hence depicted Islam as evil. Securitization in fact is a timeless method of exerting power.


Van Munster in this respect convincingly argued that we are dealing here with risk, a term, he argues, which is far more encompassing than danger and threat. Risk means that something which at present does not constitute a threat might at any time deteriorate into an imminent danger. What is needed, therefore, is not only defense but prevention, preemption, and risk management. If the security assessment is not founded on the notion of enemies posing an immediate threat, but draws from a conceptualization of Muslim communities as harboring an unknown risk with an inherent potential to develop into a threat at any time, then the range of people and activities to be monitored expands, distinctions between what and who has to be monitored become blurred, and countermeasures become amplified. In the final analysis, risk management includes everyone, until proven not dangerous. A case in point is the notorious “Muslim Test” introduced in Germany to test those applying for German citizenship. Risk management also implies that security is no longer the responsibility of only security professionals. In fact, as any neighborhood, any crowded area, any airplane or train station might harbor some unidentified risk, it becomes the duty of each citizen to be watchful.

The flourishing of risk management in the wake of 9/11 is also apparent in the flood of new legislation that has been introduced to monitor the population. These new laws and regulations range from biometric control devices, such as computerized passports and digital fingerprint registration, to the introduction of full body scanners, and to surveillance and storage of all telephone and internet traffic and transaction data, including bank operations. As a result, civil rights have been sacrificed at the altar of homeland security and the so-called war against terror, observes Heribert Prantl, a former district attorney in Munich and now leading editorial commentator at the Sueddeutsche Zeitung newspaper. The principle of the presumption of innocence is no longer viable.

Governmentality: Calling upon the Muslim Community to Meet its Civic Duties

Given the poor results of counter-terror efforts in the past, a substantive minority within the circles of security professionals and state administration is searching for new approaches.

Tezcan draws attention to a specific technique of power implemented in the framework of securitization: Today Islam and Muslim communities are not only defined as a security risk, but they are increasingly explored as a resource which can be put to use for risk reduction. Thus, the Islamic community’s capacity to integrate immigrants of Muslim descent into Western societies, its potential as a resource to make multicultural society governable, is explored, Tezcan argues. Drawing on Foucault, Tezcan introduces the term “governmentality” to show how Muslim communities are increasingly called upon to actively participate in modern Western societies. Governmentality means that modern state elites govern by directing, by restricting themselves to defining the population’s boundaries


of lawful behavior, rather than to govern by reigning or controlling. Within the margins of lawful behavior, citizens are free to organize their lives and to play a citizen’s role in the functioning of the system. Governments therefore seek to integrate migrant communities by furthering self-management and practices of self-control.

In this vein the potential of community building powers inherent in the religion of Islam is being tested. “True” Islam is against violence. The power of definition should not be left to the fanatics and their false interpretations of the Qur’an. Instead, the Qur’an has to be interpreted in a way that de-legitimizes violence. Moderate Muslims need to be encouraged to spread their message. The potential of peaceful Muslims and moderate Muslim dignitaries should be tapped to curb extremist tendencies in their midst.

Different approaches of governmentality have recently been developed in this respect. The US Department of Defense, for example, has crafted “Countering Ideological Support for Terrorism” (CIST).15 This concept builds on the precept that violence results from perception and ideas, from a wrong understanding of the Islamic religion and a wrong theology. The US administration is therefore making an effort to encourage moderate Muslim forces to counter violence perpetrated in the name of Islam by offering alternative interpretations of the Qur’an which de-legitimize violence.

Governmentality is also at work in Europe. In Germany, the Minister of the Interior initiated the “Islam Conference,” where representatives of German politics and administration come together with representatives of selected Muslim groups to discuss issues of security, societal integration, and inclusion of Islam in Germany’s constitutional order. The German institutionalization of a university-level education for school teachers instructing Muslim pupils in the Islamic belief is another example.

Another illustration of governmentality might be the Quilliam Foundation, an anti-Islamist extremism think-tank created in May 2008 by ex-Hizb-ut-Tahrir members. Its aim is to free Muslim communities from

Westophobic ideological influences and to facilitate the organic growth of Western Islam. It aims to generate creative thought paradigms through informed and inclusive discussion to counter the Islamist ideology behind terrorism, whilst simultaneously providing evidence-based recommendations to governments for related policy measures.16

Raising one’s voice against extremist acts committed in the name of Islam is one way of demonstrating that one qualifies to be accepted in and by modern society. Another way of giving proof of one’s eligibility is by incessantly demonstrating one’s adherence to a modernized and moderate interpretation of Islam. It is only

15 See, for details about CIST: Cross et al. (2007).16 www.quilliamfoundation.org (accessed March 15, 2012).


when these obligations are judged as sufficiently met that governmentality grants full participation in a Western society. Here is how former German Minister of the Interior Wolfgang Schäuble defined the requirements Muslims must meet in order to be fully accepted as part of German society:

We will have to learn to accept Islam as a part of our daily reality … At the same time, the Muslims in Europe have to face the challenge to modernize their understanding of their belief. This process is central for the acceptance of Muslims in modern European society. Islam must become a bit more European if Muslims want to be brought into the European and German milieu. (Author’s translation.)

“Modernizing one’s Islamic belief,” here appears as a tool of governmentality. Because the notions of “moderate” and “modernized” Islam are political rather than analytical categories, Islam must transform in a way that Europe’s political elites understand as modern and moderate. Abiding by the European understanding of moderate or modernized Islam is a fundamental prerequisite for immigrants of Muslim descent to be granted the status of European Muslims.

Modernization here becomes another word for the domestication of Muslims—a price they are expected to pay if they want to be admitted to the club—mission civilisatrice revisited at the beginning of the twenty-first century.

Conclusion

A systematic examination of comparable developments in the Muslim world whereby “the West” has similarly been culturalized, sometimes even “Christianized,” remains outside the scope of this chapter. Nonetheless, the following examples may give us an idea that culturalization can also be observed in the Muslim world. Discussions on both sides often center on the same issues, but their value is assessed in diametrically opposed ways. This is most apparent with regard to the issue of women. While the West praises itself for according to women equal rights, the “Muslim world” decries the West’s treatment of women as sex-objects. Another example is secularism. While in the West secularism is seen as the best guarantee for good governance and human rights, the Muslim world thinks that secularism has led to the loss of all positive values.

And information technology has made it possible to be instantaneously informed about the latest rhetorical spins of the other side. It was this mechanism that turned Huntington’s prediction of a clash of civilizations into a reality. While on the surface the terms “Islam” and “Christianity” are used to denote religions, they have actually become political battle cries to rally one’s own troops in defense of the threatened homeland.

It is also here that the security dilemma inherent to securitization becomes apparent: the more Islam and Muslims are defined as security risks, and the more


measures are taken to ward off this risk, the more Muslims will inevitably feel that they are threatened, and that their own security is at risk. It therefore comes as no surprise that many Muslims and Islamists think that “the West” is at war not with the terrorists, but with their very religion. The more Muslims feel that they are under attack, the higher the number of people who are ready to commit themselves to violent forms of self-defense.

What is really needed, therefore, is a dedicated effort to “de-securitize” Islam, Muslims and also Islamism. Instead of speech acts turning Muslims into security risks who need to be acted against, root causes for extremism and violence within both worlds, in the Muslim world as well as in the Western world, need to be unearthed. Instead of culturalization and securitization, what is needed is a dedicated effort to solve the very real problems we all face in this globalized world.

Chapter 13

Countering Extremist Ideological Foundations for Terrorism:

Some Reflections1

Sharyl Cross

The United States policy community has defined countering ideological support for terrorism or countering violent extremism as a vital priority in the overall effort to combat terrorism worldwide.2 In the aftermath of the tragic bombings in London and Madrid and the school hostage incident in Beslan, policymakers and scholars in Europe also devoted greater attention to examining the significance of the “battle of ideas” for responding to challenges posed by radical religious extremism within their respective nations.3 Any successful effort to combat the ideological foundations for contemporary terrorism will demand unprecedented levels of agreement regarding major objectives, communication, and coordination among nations committed to protecting the world community from the devastation incurred as a result of terrorist acts.

This chapter attempts to define a number of considerations that are important to building a broad international effort to combat militant extremism/terrorism in the coming decades. A strong international anti-terror alliance can help to deter threats, but any fracture or perceived division should only be expected to encourage terrorists to exploit weaknesses. It is important to forge greater unity in

1 The views expressed in this article are those of the author and do not reflect the official policy or position of the George C. Marshall European Center for Security Studies, the US European Command, the Department of Defense or the US Government. Portions of this article were published previously in S. Cross. U.S./NATO-Russia and Countering Ideological Support for Terrorism: Toward Building a Comprehensive Strategy. V, 4; Connections, Winter Supplement 2006 and Conference Report: Exploring Military Dimensions in Countering Ideological Support for Terrorism, Marshall Center and Center for High Defense Studies, Rome, 2008.

2 See National Security Strategy of the United States of America, March 2006, 9–11; National Military Strategic Plan for the War on Terrorism. Chairman of the Joint Chiefs of Staff. Washington DC, 1 February 2006, 24–25 and author’s briefing/interviews, United States Department of State, November 2006.

3 See The European Union Strategy for Combating Radicalisation and Recruitment to Terrorism. Council of the European Union. Brussels, November 25, 2005. Also, see O. Roy. Europe’s response to radical Islam. Current History, 2005.


the transatlantic community in reaching out to partner nations with predominantly Muslim populations in supporting efforts to counter the appeal of religious extremist ideology.

The Transatlantic Community and the Question of Countering Ideological Support for Terrorism/Violent Extremism

In the aftermath of the 9/11 attacks, the US took a comprehensive global approach to combating terrorism, while European nations tended to place greater priority on utilizing resources to address domestic terrorist threats. Nevertheless, international collaboration among members of the transatlantic community in counterterrorism continues to advance on multiple levels, including intelligence sharing, intercepting terrorist financial networks, and homeland defense. In the aftermath of terrorist assaults in the last decade in Europe and Russia, there has been ever greater realization that effective strategy can no longer address domestic and international aspects of the threat separately.4

In 2005, the European Union issued The EU Strategy for Combating Radicalization and Recruitment to Terrorism, which specifically addressed the issue of extremism:

Radicali[z]ation of certain Muslim individuals in Europe is a relatively recent phenomenon. Even those areas of Europe where radicalization is not a major issue at present, or where large Muslim communities do not exist, could become targets for extremists. The EU will continue to develop its collective understanding of the issues, listening to Muslims, and others, comparing national situations and establishing a European picture … The key to our success will be the degree to which non-governmental groups—communities, religious authorities and other organizations—across Europe play an active part in countering the rhetoric of the extremists and highlighting their criminal acts.5

The White Paper on Domestic Security against Terrorism issued in 2005 outlined France’s doctrine for dealing with terrorism and included an entire section devoted

4 See J. Wither. A Work in Progress: the United Kingdom’s Campaign against Radicalization. Paper to the Countering Ideological Support for Terrorism/Lessons Learned and Future Policy: Interdisciplinary, Theological, and International/Regional Perspectives, Marshall Center, Garmisch-Partenkirchen, Germany, September 25, 2006. Author’s interviews conducted with officials at the Ministry of Foreign Affairs, Russian Federation, October 27, 2006.

5 The European Union Strategy for Combating Radicalisation and Recruitment to Terrorism. Council of the European Union. Brussels, November 25, 2005.

Countering Extremist Ideological Foundations for Terrorism 247

to the “Battle of Ideas.”6 While the French reject references to “war” on terrorism, the “fight” or “battle” of ideas includes a strategy focused on promoting the basic values of the democratic tradition as a foundation for countering religious extremism. Professor James Wither observes that the UK strategy concentrates on addressing the inequalities and lack of opportunity that contribute to Muslim radicalization, devising legislation to combat radicalism, and engaging the Muslim community.7

Russian officials have emphasized the importance of avoiding a “clash of civilizations.” The perspective from Moscow tends to identify the unique cultural contribution that Russia can make to “bridge” conflict between Western and Islamic nations. Russian officials and policy analysts recognize that it is important to engage Muslim communities in shaping perceptions and countering terrorist narratives. V.I. Moltenskoy, Yu. A. Martsenyuk, and S.G. Chekinov argued in a 2005 article published in Voennaia Mysl that the “main efforts” of anti-terrorist government activity should include

[I]n the ideological and religious sphere … active cooperation with religious and spiritual leaders who stand for aiding the state in the war on terrorism and on spreading with their assistance the idea that no religion in its pure form accepts the methods of struggle used by the terrorist.8

Anatoly Saffonov, who held the position of special envoy of the Russian Federation President on issues of international cooperation in the struggle against terrorism and international crime, had advocated preventing the misuse of religion by terrorists and countering the appeal of terrorist ideology as a major topic for international collaboration.9 Addressing the ideological foundations of terrorism is consistent with the focus of the Russian counter-terrorism policy community on the importance of addressing the “root causes” of terrorism.10

Major conferences have increasingly been held in Europe exploring the sources of extremism and potential remedies. The George C. Marshall Center

6 Winning the Battle of Ideas. White Paper on Domestic Security Against Terrorism. France, 2005, 113–23.

7 Countering International Terrorism: The United Kingdom’s Strategy, Cm. 6888, July 2006; see Wither (2006), 12.

8 V.I. Moltenkoy, Y.A. Martsenyuk, and S.G. Chekinov. Ob organizatsii antiterroristichiskoy deyaten’nosti gocydarstva. Voennaia Mysl, 1, 2005, 22–7.

9 Author’s interview with Dr. Vladimir Andreev, Deputy Director, Department of New Threats and Challenges, Ministry of Foreign Affairs of the Russian Federation, October 27, 2006 and discussions with officials of the US State Department, November 2006. This position was created following the Beslan tragedy in 2004, and Anatoly Saffanov was the first appointment to the position.

10 Author’s interview with Dr. Igor Neverov, Director, North America Department, Ministry of Foreign Affairs of the Russian Federation, October 27, 2006.


sponsored a series of conferences devoted to countering ideological extremism in cooperation with the Center for Excellence—Defense Against Terrorism (COE-DAT) in Ankara, the Center for High Defense Studies (CASD) in Rome, the NATO-Russia Council, and the Royal Jordanian National Defence College, involving participants representing more than sixty nations throughout the world community.11

Although there are certainly differences among the US and European nations with regards to areas of emphasis, terminology, and strategies in addressing the ideological foundations of terrorist movements, there is a growing consensus that ideology is perhaps the most important dimension of the overall global counter-terror effort. Through greater collaboration and discussion of issues and actual cooperation in the coming years, these nations should be able to improve coordination and effectiveness in countering violent religious extremism. In addition, we must approach the complex issue of developing strategy aimed to dissuade populations from turning to fanatic violent ideologies by seeking the involvement of those familiar with local conditions, social traditions, and values.

A Containment-like Strategy

The containment strategy introduced by career Foreign Service Officer and diplomat George F. Kennan in 1947 provided an overarching direction for countering the Soviet threat on a global scale. The containment doctrine formed the essence of US strategy for the Truman Administration and for every succeeding administration during the decades of the Cold War. The notion of countering Soviet expansionism ultimately to counter the influence of communism focused strategic planning, attention, and resource allocations toward a single threat objective. Kennan’s approach called for integrating military, political, socio-economic, and psychological instruments to achieve the aim of opposing expansion “whenever” or “wherever” the Soviets attempted to advance. The distinguishing features of the strategy identified in Kennan’s seminal “Mr. X” article, published in

11 For conference publications, see Connections. The Quarterly Journal of the Partnership for Peace Consortium for Defense Academies and Security Studies Institutes. Vol. I and II, Winter 2006, Conference Report: Advancing International Coordination in Countering Ideological Support for Terrorism (CIST), Toward Building a Comprehensive Strategy, Marshall Center and Center for Excellence Defense Against Terrorism (COE-DAT), Ankara, May 2007; Conference Report: Exploring Military Dimensions in Countering Ideological Support for Terrorism, Marshall Center and Center for High Defense Studies, Rome, 2008, and conference report Exploring Dimensions in Countering Ideological Support for Terrorism, George C. Marshall European Center for Security Studies, Garmisch-Partenkirchen, Germany, and the Royal Jordanian National Defence College, Amman, Jordan, 2010.


Foreign Affairs in 1947, included a “long-term,” “patient,” “firm,” and “vigilant” commitment directed to counter a clearly defined threat.12

While policy communities on both sides of the Atlantic recognize that combating terrorism and countering ideological support for terrorism may present the most significant and daunting strategic challenge of our time, what is lacking is a unified and integrated approach to “contain,” or more ambitiously, to “rollback” the appeal of militant extremists. The strategy should be “containment-like” in that it must include careful coordination of multiple instruments aimed to support an overarching comprehensive strategy, and include sustained commitment over a period of not just a few years or a single administration, but the next several decades. This approach must be broadly orchestrated to include information, political/economic/social, religious, moral/ethical, and policy dimensions. Such a strategy will have to be well integrated and coordinated not only within the US government agencies (State, OSD, and so forth), but also internationally among nations that share the strategic assessment assigning priority to countering religious extremism legitimizing terrorism.

It must be recognized that countering ideological support for terrorism/countering violent extremism will involve much more than simply public diplomacy responses. An adequately funded and skillfully orchestrated public diplomacy effort can offer one means, but only one component, of an overall strategy. As we work toward developing a comprehensive strategy, we should begin with the fundamental assumption that perception, and every element that might influence perceptions, must be considered. We must constantly evaluate and re-evaluate how our actions, behavior, messages, and policies are interpreted.

Compared with the period of the Cold War, in the increasingly transnational security environment of the twenty-first century, dialogue within the US government and especially in international forums may become even more necessary to build consensus on terminology, objectives, and execution of policy. No single nation working alone will be able to confront and defeat the worldwide threat of ideological extremism fueling terrorism. Strategy must be developed and coordinated among multiple international partners. Maintaining excellent communication will be integral to forming and refining strategy and sustaining the robust network necessary to deal with this complex challenge.

Any “hearts and minds” strategy coordinated among multilateral or bilateral international groups must involve reaching out to Muslim nations and communities. Engaging partners familiar with local cultures and traditions will be critical to achieving progress. We should promote greater appreciation for the potential contributions of NGOs, clerics and religious leaders, educators, and the private sector to challenging the ideology perpetrated by extremists. As collaboration develops at the traditional state-to-state level and among communities, there

12 See G.F. Kennan. American Diplomacy, 1900–1950. Chicago: University of Chicago Press, 1950.


should be an accompanied momentum toward addressing this issue on the basis of shared strategic objectives.

Building an Actionable Agenda in Countering Ideological Appeal of Militant Extremism

In attempting to build a comprehensive “hearts and minds” strategy, every effort should be made to clearly communicate that we reject any notion of a “clash of cultures” or “clash of civilizations” that would ultimately lead to violent confrontation. There are fundamental differences between non-Muslim and Muslim cultures, values, and traditions. However, the consequences of allowing these distinctive features to descend into a large-scale, religion- and civilization-based war as in the past would likely result in unthinkable losses given the greater availability of tools of mass destruction in the contemporary international security environment. It is imperative to work to foster consensus among non-Muslim and Muslim nations committed to protecting civilian populations from harm by those who distort the teachings of Islam for political purposes.

There have been some reported successes in reforming young recruits of terrorist movements through the intervention of religious authorities, but for the most part there is little hope for negotiating with or altering the fundamental objectives and convictions of the committed militant extremist. The fanatic core adherents are driven by a vision of a glorious past and an international order that they deem unjust, immoral, and fundamentally divorced from God and all that is sacred. The author of several books on Muslim radicalism, Syed Abul Ala Mawdudi, set the foundation for transforming the international order decades ago:

The objective of Islamic jihad is to eliminate the rule of a non-Islamic system and establish in its stead an Islamic system of state rule. Islam does not intend to confine this revolution to a single state or a few countries; the aim of Islam is to bring about universal revolution.13

Because justification for violence can be found among radical clerics and in differing interpretations of references in the Qur’an, both secular communities and Muslims face difficulties in challenging the extremist agenda.14

13 S.A.A. Mawdudi. Jihad in Islam in Voices of Terror: Manifestos, Writings and Manuals of Al Qaeda, Hamas, and Other Terrorists From Around the World And Throughout the Ages, edited by W. Laquer. New York City: Reed Press, 2004, 398.

14 Osama Bin Laden was reported to have obtained approval from a Saudi cleric for the use of a nuclear weapon against the United States. Al Zawahiri offers the rationale for killing innocent bystanders in his book entitled Healing the Breast of the Believers referencing the following Quranic verse: “Fight against them so that Allah will punish them by your hands and disgrace them and give you victory over them and heal the breasts of


This should not suggest that secular open societies are locked in an irreconcilable clash with Muslim communities throughout the world. “Sacred terrorists” have emerged throughout history to distort the teaching of religious traditions in many faiths and cultural contexts. Influential representatives of the world’s Muslim communities openly reject the tactics and vision offered by the militant extremists. King Abdullah II of Jordan has called for the “quiet majority of Muslims” to “take back our religion from the vocal, violent and ignorant extremists.”15 The Grand Sheik of the al-Azhar Mosque in Cairo, Sheik Muhammad Sayyed Tantawi, has consistently spoken out against acts of terrorism. Representing the highest spiritual authority for Sunni Muslims, the Sheik has condemned suicide bombings against Israelis and characterized “extremism” as “the enemy of Islam.”16 Pew public opinion data indicate substantial declines in the percentages of Muslims who support suicide bombing and other forms of violence, with the percentage change in Jordan particularly significant in the aftermath of the terrorist attack in Amman in 2005.17 The fact is that the militant radical message is largely rejected within Muslim societies as inconsistent with the most fundamental teachings and values of Islam and as lacking relevance for the realities of modern life.

A strategy to counter ideological support for terrorism should entertain no illusions of influencing the hardcore, radically inspired terrorist, but rather should identify and then discredit and isolate those purporting extremist ideology. Partnering with Muslim communities in supporting efforts to thwart the attempts of extremists to attract additional recruits holds the most promise for addressing this challenge. Bin Laden attempted to characterize this conflict as a religious war, referring to “a new crusade led by America against Islamic nations,” and calling for the umma to “unite to defend Islam.”18 The enemy should be clearly defined; the threat comes from the small extremist core, not from Islam or most of the Muslim world. Failure to distinguish the source of the threat will make it easier for

the believing people, and remove the anger of their believers’ hearts … ” Surah 9: 13–15, translated by M.A. Gabriel. Journey Into the Mind of an Islamic Terrorist. Lake Mary: Front Line, 2006, 56–7 and see O.B. Laden. Jihad Against Jews and Crusaders. World Islamic Front Statement. February 23, 1998.

15 Jordan’s King Abdullah Pushes for Moderation. Washington Post. September 14, 2005.

16 See Grand Sheikh condemns suicide bombings. BBC News. December 4, 2001 and Cleric condemns suicide attacks. BBC News. July 11, 2003.

17 Prior to the terrorist attack in Amman in 2005, 57% of Jordanians viewed suicide attacks as “often” or “sometimes” justified with the figure declining to 27% in the aftermath of the attack, see Europe’s muslims more moderate: the great divide: how westerners and muslims view each other. The Pew Global Attitudes Project. Washington DC, June 22 , 2006.

18 Correspondent meets with opposition leader Bin Laden. Channel 4. London. Feb. 20, 1997 and Pakistan interviews Osama Bin Laden. Islamabad. March 18, 1997 cited in C.M. Blanchard. Al Qaeda: statements and evolving ideology. CRS Report for Congress, 2006.


extremists to manipulate greater numbers within Muslim societies to advance their political aspirations by depicting the nature of this conflict as a war against Islam.

Terminology: Importance of the Proper Choice of Words

The importance of appropriate terminology cannot be underestimated. Language or terminology must be carefully assessed with the intention of advancing cooperation and consensus in executing policy. References to the “War on Terror” or “Islamofascists” may have a certain resonance or a particular meaning on the domestic front, but such references have surely been misunderstood by our traditional allies, potential partners, and will not help to win “hearts and minds” among Muslim communities. Even in instances in which European and North American allies share a high degree of substantive compatibility with respect to addressing the ideological agenda of terrorists, the use of such references can be polarizing and hinder cooperation.

This issue arises repeatedly in Western scholarship and policy discussion, and it is no easy task to find the right descriptive language, particularly when these terrorist movements refer to the Qur’an, jihad, and their faith as providing the ideological impetus for their violent actions and world vision. Professor Sherifa Zuhur has argued that references to the “Caliphate” in Western defense discussions can only heighten conflict.19 However, given that the institution of a global “Caliphate” imposing an extreme version of sharī’a law is the stated objective for Al Qaeda and affiliates, it would be difficult to speak seriously about the intentions of these terrorist groups if there can be no mention of their ultimate aims. At the very least, employing the term “Islamist” to establish the political orientation of these groups is preferable to referencing “Islam” in a negative context. Muslims find references such as “militant extremism/terrorism,” “Bin Ladenism,” or “Qutbism” less objectionable in disassociating their religion with the extremist zealots who have attempted to interpret the teaching of one of the world’s major religious faiths to serve their political ends. Certainly, citizens of Muslim communities throughout the world are potential victims of these terrorist networks, and their support has and will continue to be critical for achieving any progress in the overall global counter-terrorism effort. Western societies cannot expect to build security cooperation with Muslims by alienating their communities with references casting the Islamic religious faith in a negative light.

Strategic Communication

Strategic communication, while not the only element in developing an overall strategy for countering extremism, is nonetheless an important component of

19 S. Zuhur. Precision in the Global War On Terror: Inciting Muslims Through the War of Ideas. US Army War College, Strategic Studies Institute, 2008, 31–3.


strategy. Dr. Ben Mor, a professor of political science at the University of Haifa, has argued that nations must think about “impression management” as a vital component in supporting broader strategic objectives.20

Even within a single country (the United States), it has been difficult to integrate and coordinate all instruments of communication toward achieving shared objectives. US government efforts in public diplomacy and public affairs (the State Department) and strategic communication must be coordinated and directed toward developing a common and coherent information strategy. Mechanisms have been established for periodic discussion of approaches, themes, and messages between various agencies sharing responsibility for countering ideological support for terrorism (the State Department, DOD, intelligence, and so forth). Joint seminars and routine consultations between the Pentagon, the State Department, and other US government agencies have and will continue to facilitate better coordination and understanding of issues. The US Congressional Smith-Thornberry Amendment to the 2009 Defense Authorization Bill (H.R. 5658) mandating the creation of a comprehensive interagency response for strategic communications and public diplomacy represents one major step implemented to achieve better coordination. Developing an effective strategy for countering ideological support for terrorism or countering violent extremism will require not only optimal domestic agency coordination, but also should lead to the next step of inviting greater international involvement in US government intra-agency forums.

Above all, governments must serve as reliable and honest sources of information.21 Communications specialists stress that trust in the credibility of the messenger cannot be underestimated in developing an effective strategic communication effort. The objective of a coordinated and multinational strategic communication effort should be to convince local populations that the terrorist agenda will not advance their interests. Strategic communication should be aimed at exposing and discrediting the message of militant extremists. Drawing attention to the atrocities of the terrorists and the plight of victims could help shift perceptions.

In developing any effective strategic communication campaign, it cannot be assumed that the information presented will necessarily be interpreted in the way it was intended within diverse cultural circumstances.22 Strategic communication

20 See B.D. Mor. Public diplomacy in grand strategy. Foreign Policy, 2, 2006 and Conference Report: Exploring Military Dimensions in Countering Ideological Support for Terrorism. Marshall Center and Center for High Defense Studies. Rome, 2008.

21 See M.K. Eder. Toward Strategic Communication. Military Review, July–August 2007.

22 Dr. Steven Corman, Professor of Communication Studies and Director of Consortium for Strategic Communications at Arizona State University, argues that the twentieth-century “message influence model [no] longer conforms to contemporary realities, and is doomed to fail as a basis for the global war of ideas.” Dr. Corman offers a “pragmatic complexity model” concluding that the message intended is not always received. Corman suggests that meanings are not simply transferred, but that “listeners will create messages


should be coordinated with the assistance of those quite familiar with local contexts in order to minimize the likelihood of misunderstanding. We must use the same language and cultural images and references that the target population uses in order to avoid a “branded in the USA” image.

Terrorists are effectively using the internet and chat rooms to disseminate propaganda, recruit participants, and to coordinate attacks. The international community currently lacks any legal means for managing the use of the internet. As Major General Mari K. Eder observed, “more than 4,000 websites” controlled by militant extremists/terrorists operate in a “virtual battle space,” which is “unhampered by law, free press rules, or censorship.”23 We can use this venue to monitor and learn more about these groups, but the international community must also find common means for controlling terrorist use of the internet.

Discrediting the Militant Extremist Agenda

A global “hearts and minds” strategy must offer acceptable alternatives to the totalitarian vision and violence purported by Al Qaeda and its affiliates. Democracy, justice, rule of law, and economic opportunity may have wide appeal even for societies that are divided by ethno-religious loyalties and suffering relative economic disadvantage. The channels for participating in the political process or resolving grievances available in established democratic systems can provide appropriate and effective alternatives to violence and terrorism for those seeking to achieve political objectives. Nevertheless, building democratic nations in cultural contexts that lack such traditions will involve a long-term, patient commitment and require much more than just holding elections. The primary impetus for democratic transition must come from within the society; the creation of democratic institutions and a civic society will mature over a period of decades, not a few months or even years.

One of the major challenges is that in many respects, secular societies are fundamentally inconsistent with Islam. As Professor Seeyed Hossein Nasr of Tehran University observes:

If Muslims were to accept in principle the separation of religion from the domain of public life (which would then become secularized, as it has in the West to an

based on local contexts, history, culture, language symbols, power relations, and immediate personal needs.” In crafting a strategic communication strategy, Corman argues that we must recognize this reality and embrace complexity. In short, Corman’s research suggests that “we may never be able to predict the impact of messages.” See S.R. Corman. Complex systems problems in the war of ideas. Perspectives on Terrorism, Vol. II, #3, February 2008 and Conference Report: Exploring military dimensions in countering ideological support for terrorism. Marshall Center and Center for High Defense Studies, Rome, 2008.

23 See P. Seib. The Al Qaeda Media Machine. Military Review, 2008; Eder (2007).


ever greater degree since the Renaissance), they would have to abandon the doctrine of Unity that lies at the heart of the Islamic message. They would have to act against the Sunnah of the Prophet and fourteen centuries of the unfolding of the Islamic tradition.24

Secularist and modernist forces within the Muslim societies face the challenge of balancing adherence to Islamic values, traditions, and institutions with introducing concepts of democratic governance.

Rather than adopting a rigid checklist to measure progress in democratic development based on the Western experience, it seems more realistic and potentially more productive to recognize that democratization must advance in a manner that will be consistent with the unique circumstances of the particular society. Attempting to impose democratic practices or standards on reluctant societies is likely only to engender greater resistance. Specialists from Muslim societies often refer to the overwhelming sense of “humiliation” or “resentment” that exists in the “encounter with the West.”25 Democracy should be encouraged, but it is critical not to further aggravate these sentiments by attempting to impose a system of governance before the society is prepared to accept change.

European and other democratic societies will also encounter conflict in enlisting the support of semi-authoritarian nations that would have a great deal to contribute to combating terrorism on the ground but would not lend legitimacy to promoting ideas and values to counter the message of terrorists. We will have to work together with partners throughout the world to find the proper balance between protection of civil liberties and securing free and open nations against the terrorist threat. At what point do nations undermine the basis for a democratic society by attempting to manage religious extremism?26 How far can nations go in regulating websites, for example, when those sites are used to recruit terrorists and organize violent attacks? The cyber sphere will continue to present new challenges for democratic societies in weighing the appropriate levels of control when the technology is manipulated for purposes of bringing about destruction and violence.

In an effort to de-legitimize ideological underpinnings, it is critical to expose the vision offered by Al Qaeda and its affiliates for the future of the international order. The ideological mindset includes a crisis worldview which seeks redemption by violence. Their agenda is not restricted to any national domain; rather it is

24 S.H. Nasr. Islam, Religion, History and Civilization. San Francisco: Harper Collins, 2003, 113.

25 L. Boroumand and R. Boroumand. Terror, Islam, and Democracy. Journal of Democracy, 13, 2002, 16.

26 French Political Scientist, Dr. Sebastien Peyrouse, argues that vestiges of authoritarianism remain in certain Central Asian nations with respect to religious freedom and tolerance of extremist tendencies in Islam. Sebastian Peyrouse, lecture delivered on Islam and Politics in Central Asia: A Response to Globalization. Woodrow Wilson International Center for Scholars. Washington DC, November 21, 2006.


global in scope and objectives. As Walid Phares accurately notes, the Islamists believe that they are leading an international struggle of “dar el Islam,” or the house of Islam, against the entire worldwide “dar el harb” or the war zone.27 Turkish scholar Bassam Tibi argues that Bin Laden and other groups affiliated with Al Qaeda sought to impose Nisam Islami (an Islamic system) by employing tactics of irregular warfare challenging the contemporary Westphalian order. Tibi describes the attempt to ultimately resolve the current crisis in the Western secular order by imposing “Islamic dominance” through a “permanent Islamic world revolution,” finally leading to world peace as envisioned by Hassan al-Banna, Sayeed Qutb, and others.28 While there are surely common objectives among these militant groups, it is also certain that imposition of a fanatic totalitarian theocratic order hardly seems realistic for today’s diverse international community and would be rejected by most of the world’s Muslim population.

Women in Muslim communities hold a great deal of potential to contribute to democratization and countering support for terrorism. Muslim women are increasingly represented in the professions and are critical in fostering the values of society through their influence in the family. Bin Laden repeatedly argued that Afghanistan had become a model Islamic state under the Taliban.29 Despite differing Western and Muslim perceptions regarding the issue of “respect for women,” there is no debate that women suffered tremendous injustice, deprivation, and humiliation under the Taliban order.30 The experience of women under the Taliban is fortunately not illustrative of the conditions of women throughout Muslim communities, and it is important to appreciate that the realization of the core aspirations and objectives of the self-proclaimed jihadists would be unacceptable to most women of the twenty-first century international community. Muslim women should be supported in discrediting the oppressive extremist agenda and its tactics of violence and suicidal destruction.

Nations committed to combating terrorism must continue to devote attention and resources to addressing the underlying societal forces which create the

27 W. Phares. The War of Ideas: Jihadism Against Democracy. New York: Palgrave, 2007, 44–7.

28 B. Tibi. Countering Ideological Terrorism. Defence Against Terrorism Review, Vol. I, 2008.

29 Al Jazirah program on Bin Laden. Al Jazirah Television, Doha. June 10, 1999 cited in C.M. Blanchard. Al Qaeda: statements and evolving ideology. CRS Report for Congress, 2006, 3.

30 In response to the question “Are Muslims Respectful of Women?” non-Muslims in Great Britain replied 26% yes and 59% no; United States, 19% yes and 69% no; France, 23% yes and 77% no; Germany, 17% yes and 80% no. In response to the question “Are Westerners Respectful of Women?” Muslims in Jordan replied 38% yes and 53% no; Pakistan, 22% yes and 52% no; Indonesia, 38% yes and 50% no; and Turkey, 42% yes and 39% no. Europe’s Muslims more moderate/The great divide: how westerners and muslims view each other. The Pew Global Attitudes Project. Washington DC, June 22, 2006.


environments that fuel terrorism. Much of the appeal of Hamas and Hezbollah results from their ability to meet the desperate social service needs in war-ravaged societies. Socially responsible private industries can create the economic opportunities, training, and alternatives for those in despair. We must provide an alternative path for potential recruits to terrorist movements.

Educational efforts underway at every level throughout Muslim societies hold tremendous promise in de-legitimizing terrorist recruitment and indoctrination. In 2008, a new program was introduced in Indonesian boarding schools (pesantren) providing wide access to the internet in classrooms as a means of ensuring adequate information sources and cultivating critical thinking skills.31 That same year a new program was also initiated in Morocco to train female Muslim clerics to counter the ideology of Al Qaeda.32 The prison rehabilitation programs conducted by leading Islamic clerics have been quite effective in persuading terrorists to return to a positive path away from violence and consistent with the teachings of their faith.33

Disseminating messages that emphasize the common positive values (family, dignity, justice) shared by both Muslim and Western or non-Muslim societies can contribute to building common ground and improving impressions. Messages should promote an appreciation of shared respect for the accomplishments and contributions of diverse societies and practices. Television, media, and cyber/internet technology should be fully utilized to focus public attention on the atrocities suffered by the victims of terrorism. Revealing the plight of the victims can help to develop global norms stigmatizing terrorist acts. Public exposure of the vision and behavior of Islamists should gradually contribute to unifying world opinion, eroding the potential of extremists for gaining greater influence.

Engaging Muslim Communities, Limitations, and Responsibilities

Many Western scholars and analysts working on this issue have reached the conclusion that violent extremism is most likely to be defeated by the resolve of Muslim societies to expose and discredit the ideology. Responsibility for scriptural interpretation and managing teaching in educational institutions must rest with designated leadership and religious authorities in Muslim communities. Success in the competition of ideas will depend on the discernment, guidance, and response of the current and future generations of Muslim communities.

31 E-Learning for Indonesian Pesantrens. IslamOnline.net News, April 8, 2008.32 Women clerics counter Al-Qaida teachings. UPI. May 6, 2008.33 See Deradicalization’ and Indonesian prisons. Asia Report, 142, November 19,

2007; M.A. Hakeem. Britain Plans to Copy Saudi Program. Gulfnews.com, June 19, 2008; US working to reshape Iraqi detainees: moderate Muslims enlisted to steer adults and children away from insurgency. Washington Post. September 19, 2007, A01; Hardline Imams sought to fight terror. The Australian. February 18, 2008; Perks of pennance for Saudi jihadis. BBC News. July 9, 2008.


Again, it must be emphasized that Muslim societies have repeatedly condemned terrorism and violence in all forms. The Amman Message issued in 2004 with the authority of King Abdullah of Jordan and widely endorsed by leading Islamic scholars clearly disassociates Islam with the aggression and violence of terrorism.34 In 2008, hundreds of Islamic scholars gathered in the leading Islamic seminar in India passing an edict declaring all acts of terrorism as “un-Islamic.”35 The major effort underway in Turkey by the nation’s religious scholars to reinterpret the authenticity of the Hadith is likely to yield conclusions condemning acts of violence.36

Leading specialists on politics and Islam share the assessment that the spiritual foundations and traditions of Islam provide the solution for countering the ideology of terrorism. Dr. Mustapha Benchenane, Professor of Political Science at Université René Descartes in Paris, contends that Islam should be used to discredit Islamism. He argues that the scriptural teachings of Islam are inconsistent with the violence and hate characterizing the message and behavior of the Islamists.37 Similarly, Dr. Abdeslam Maghraoui, Director of the Muslim World Initiative at the United States Institute of Peace, argues that “the problem of ‘religious extremism’ in the Muslim world is an ideological challenge best confronted by drawing on Islam’s humanist and progressive traditions.”38 Iranian scholars Ladan Boroumand and Roya Boroumand, writing in the Journal of Democracy, argue that there is “in the history of Islam no precedent for the utterly unrestrained violence of Al Qaeda or the Hezbollah.” They assert: “To kill oneself while wantonly murdering women, children, and people of all religions and descriptions—let us not forget that Muslims too worked at the Trade Center—has nothing to do with Islam.”39 Recent public discussions held in London and other cities among Islamic clerics and leading figures among the Islamist extremists expose the sharp divide within Islam regarding the interpretation and teachings of the Qur’an.

34 Message de Amman and the Official Website of the Amman Message, available at: http://ammanmessage.com (accessed March 14, 2012).

35 India: Muslim scholars at seminary pass edict declaring terrorism un-Islamic. CNN-IBN. February 25, 2008.

36 Revising the Hadith. The Guardian. February 26, 2008; A. Maher. Turkey classifying not revising the Hadith. Islam Online. February 29, 2008.

37 Presentation by Professor Mustapha Benchenane (and discussion with author) delivered at the conference entitled Countering Ideological Support for Terrorism/Lessons Learned and Future Policy: Interdisciplinary, Theological, and International/Regional Perspectives. Marshall Center, Garmisch-Partenkirchen, Germany, September 15, 2006.

38 Presentation by Dr. Abdeslam Maghraoui delivered at the conference entitled Countering Ideological Support for Terrorism/Lessons Learned and Future Policy: Interdisciplinary, Theological, and International/Regional Perspectives Marshall Center, Garmisch-Partenkirchen, Germany, September 15, 2006; A.M. Maghraoui. American foreign policy and Islamic renewal. United States Institute of Peace. Special Report 162, July 2006.

39 L. Boroumand and R. Boroumand. Terror, Islam, and democracy. Journal of Democracy, 13, 2002, 6.


Again, in order to avoid creating further divisions or misunderstandings, any counterterrorism initiatives that address ideological support for terrorism on the part of the transatlantic community must include collaboration with Muslim communities. Secular nations with large Muslim populations may have a particularly important contribution to make in bridging ties with Islamic nations. There are certainly limitations in engaging Muslim communities. It is often difficult to discern the legitimate source of authority in Islam. Islam has no equivalent to a single religious authority, such as the Pope of the Roman Catholic Church. The diffuse nature of authority in Islam leaves the faith vulnerable to exploitation by self-appointed extremist clerics and complicates the work for legitimate and responsible religious authorities in discounting distortions or misinterpretations of sacred teachings. In addition, Muslim religious leaders must have a certain reluctance to cooperate with Western or secular nations because such association can always risk compromising their credibility or even security. A highly visible transatlantic campaign promoting moderation over extremism in Muslim societies is likely to be counterproductive. The challenge is to strike the appropriate balance in supporting Muslim communities committed to countering extremism without in any way assuming an excessively intrusive role.

Traditional Religions and Interreligious Dialogue

The potential positive contributions of the world’s major religions to resolving conflicts have been underestimated in the state-centric diplomatic community.40 Bassan Tibi, Raymond C. Taras, Rajat Ganguly and other scholars have noted that the field of international relations may be ill-equipped to address contemporary security realities given the lack of attention to religion, ethnicity, and culture during the decades of the Cold War.41

40 In a major edited volume entitled Religion, the Missing Dimension of Statecraft, Oxford University Press, contributors argue that traditional religions have an important contribution to make in resolving the identity-based conflicts of the post-Cold War period. One of the editors, Douglas Johnson, concludes that: “As one looks at the end of the century and beyond, the challenges of preventing or resolving conflict are likely to prove even more formidable than they have in the past. The problems posed by today’s ethnic and nationalistic hostilities, whether inter- or intrastate, have shown themselves to be peculiarly resistant to diplomatic compromise. If the goal of achieving peace in meaningful terms is to prove any less elusive, different approaches will be required—approaches that key to deep rooted human relationships rather than state-centered philosophies. Far greater insight into the human dimension of conflict and its resolution will be required on the part of foreign policy and religious practitioners than has been demonstrated to date … ” see D. Johnston. Introduction: beyond power politics in Religion, The Missing Dimension of Statecraft, edited by D. Johnston and C. Sampson. Oxford: Oxford University Press, 1994, 7.

41 See B. Tibi. Countering Ideological Terrorism. Defence Against Terrorism Review, Vol. I, 2008; R.C. Taras and R. Ganguly. Understanding Ethnic Conflict: The International


Political officials throughout the world have acknowledged that traditional religions through interreligious dialogue could have an important role in addressing the terrorist challenge. In conjunction with the G-8 Summit held in St. Petersburg, Russia in July 2006, Russia’s President Vladimir Putin called for “broad dialogue between religions to ward off extremists.”42 Similarly, Philippine President Gloria Macapagal-Arroyo, citing recent progress in reducing the terrorist threat and negotiating peace in Mindanao, has stated that interfaith dialogue is the best “antidote to terrorism.”43 Former US Undersecretary of State for Public Diplomacy and Public Affairs, Karen Hughes, emphasized the importance of interfaith dialogue in an interview in Prague:

The world’s major faiths have many things in common. The world’s major faiths all believe that we should try to live in peace and love for each other, that we should love God and love our neighbor. All believe and teach that life is precious and that the taking of innocent life is wrong. It’s important that we talk about these things. Sure, we have differences. We have important theological differences. But we also have much in common. And I think it is very important that we foster that kind of dialogue.44

The credibility of terrorists can be undercut by higher authorities challenging the misuse of religion for political purposes. While the 2006 G-8 meeting was in session, the leadership of major world religions (Christianity, Islam, Judaism, Buddhism and others) signed a joint statement which included the following reference to terrorism and extremism:

We condemn terrorism and extremism of any form, as well as attempts to justify them by religion. We consider it our duty to oppose enmity on political, ethnic or religious grounds. We deplore the activities of pseudo-religious groups and movements destroying freedom and health of people as well as the ethical climate in societies. Using religion as a means for rousing hatred or an excuse for crimes against individuals, morality and humanity present a major challenge today. This can be addressed only through education and moral foundation. School, mass media, and preaching by religious leaders should return to our

Dimension. New York: Longman, 1998.42 Russia’s Putin calls for interfaith dialogue to oppose extremism. RIA Novosti, July

3, 2006. Putin noted that “ … ignorance of the fundamentals of religious history makes a man, particularly a young one, vulnerable to dangerous extremist movements … ”

43 Philippine president promotes interfaith dialogue to fight terror. Manila Times. January 28, 2006.

44 U.S. Undersecretary of State pushes for more interfaith dialogue. RFE/RL. June 11, 2006.


contemporaries the full knowledge of their religious tradition which call them to peace and love. 45

Pope John Paul II acknowledged the potential contribution of interreligious dialogue in overcoming terrorism: “ … I am convinced that humanity’s great religions should cooperate among themselves to help eliminate the social and cultural causes of terrorism, by teaching the grandeur and dignity of the human being and by favoring an increasing awareness of the unity of the human race … ”46 Pope Benedict XVI’s first visit to Istanbul, Turkey in November 2006 was an important step to improve the relationship between the Christian and Muslim communities, and to create a basis for cooperation in meeting the most pressing security challenges for the international community in the twenty-first century.

The ideological foundations of contemporary violent religious extremist groups must be de-legitimized by theological refutation. Inter-religious dialogue can focus the attention of the communities of the world on the distortions of scriptures and the inconsistencies of heinous terrorist acts with the shared peaceful teachings of the world’s major religions. The responsible leadership of religious authorities working together can help in preventing the escalation of a major twenty-first century conflict based on religious-ethnic/cultural distinctions.

At the international level, it would be important to include representation from religious communities in forums seeking solutions for countering the “hearts and minds” appeal of terrorism. Perhaps no single security issue is more suited for government-religious cooperation than countering extremist-motivated terrorism.

Dialogue, Lessons Learned and Best Practices

No nation has the resources to support “talk shops” for endless discussion that fails to yield measurable outcomes. However, working through the development of an effective strategy for countering ideological support for terrorism or countering violent extremism will not be achieved without a commitment to ongoing international discussion and consultation. The progress made by the international community in moving toward a common definition of terrorism resulted from honest and open discussion of assumptions and perspectives in the United Nations and other international forums. Russia’s Foreign Minister, Sergei Lavrov, reinforced the need to “fight terrorism with a single standard … ”47 Arriving at

45 Moscow summit statement read at G-8 meeting. Catholic World News. July 18, 2006.46 Interreligious dialogue can help counter terrorism, Pope says. Catholic World

News. December 12, 2003.47 States harboring terrorists should comply with UN Acts. Novosti. December 10,

2005. For an excellent discussion concerning the need for an internationally accepted definition of terrorism, see B. Ganor. The Counter-Terrorism Puzzle: A Guide for Decision Makers. London: Transaction Publishers, 2005, 1–24.


a “single standard” or a well-coordinated strategy can only be achieved through encouraging routine and sustained dialogue.

For the United States and its allies, devoting time and resources to promoting such discussions demonstrates a respect for the potential contributions of partner nations and helps to facilitate the common understanding of perspectives and professional associations that will be so valuable in dealing with this challenge in the years to come. Such exchanges can contribute to overcoming the lack of trust and suspicion of Western intentions so prevalent today, especially among Muslim communities.

Convening gatherings of military/security counter-terrorism professionals from around the world to exchange experiences in countering ideological support for terrorism promises to be among the most effective methods. These discussions tend to be quite concrete, offering specific recommendations based on actual experience in dealing with religious extremist-motivated terrorists in different nations. Such collaborative exchange can contribute to building “best practices,” providing guidance to military/security counter-terrorism professionals in techniques for countering ideological support for terrorism. Also, collaboration is a critical dimension that will contribute to better intelligence sharing, which will bolster efforts to combat radicalism. Again, these military/security counter-terrorism networks provide the collaborative foundation for managing the day-to-day business of successfully countering terrorism worldwide.

Intercultural Research/Educational Cooperation

Terrorism has not been a major area for focus in academic security studies in the United States. During the years of the US-Soviet confrontation, tremendous resources were invested in cultivating academic centers for studying the former Soviet Union. There were a number of leading academic specialists that could be tapped for directing research and offering support in the development of policy/strategy. Terrorism was subsumed within other academic disciplines, and there were few programs or centers in the United States or in other nations devoted to terrorism such as the Centre for the Study of Terrorism and Political Violence at the University of St Andrews in the UK. Limited resources channeled to the study of terrorism resulted in producing a scarcity of experts and scientific work in the area.

In formulating a “hearts and minds” campaign, we need greater clarity on the motives of terrorists. The current academic and policy literature offers a range of explanations: rational actor; group cohesion; low self-esteem or compensation; religious inspiration; educational background and training.48 While there may

48 J.M. Post. Psychological operations and counterterrorism. Joint Force Quarterly, 37, 2003; M. Sageman. Understanding Terror Networks. Philadelphia: University of Pennsylvania Press, 2004; M. Crenshaw. The logic of terrorism: terrorist behavior as a product of strategic choice. In Origins of Terrorism: Psychologies, Ideologies, Theologies, States of Mind, edited by W. Reich. Washington DC: Woodrow Wilson Center Press and


in fact be multiple profiles for terrorists, it is still necessary to understand what motivates terrorists to act or to voluntarily engage in acts of suicidal martyrdom when we attempt to formulate responses to counter ideology.

Additional objective and rigorous case-study research across different national/cultural contexts will provide a basis for assessing the success of various measures implemented to counter extremism. Institutes, such as the Combating Terrorism Center established at the United States Military Academy at West Point are improving understanding of the sources of terrorist motivation and support policy formulation.49 The US military community has acknowledged the importance of enhancing educational efforts to strengthen understanding of differing cultures and traditions and preparing military leadership for working constructively in diverse societies.50 Lt Col Fred T. Krawchuk, former Director of Strategic Communication for Pacific Command, emphasizes the importance of enhancing cultural adeptness in forming an effective strategic information campaign.51 In the aftermath of September 11, the Fulbright Council for the International Exchange of Scholars established the Visiting Specialist Program and the Understanding Contemporary Islam programs to facilitate the hosting of scholars from nations with significant Muslim populations in US-based universities. These programs improve understanding of Islam in American educational institutions and communities and promote ongoing collaborative research with Muslim scholars.

Importance of Consistency of Intentions in Messages and Policy

Whether in the US, Europe or any other democratic region, it is critical that the effort to “win hearts and minds” not be perceived as an attempt to manipulate societies or “spin.” The importance of trusting the messenger cannot be underestimated for any successful strategic communication effort. To be effective, public diplomacy

Johns Hopkins University Press, 1998; R.A. Pape. Dying to Win: The Strategic Logic of Suicide Terrorism. New York City: Random House: 2005; M. Bloom. Dying to Kill: The Allure of Suicide of Terrorism. New York: Columbia University Press, 2005.

49 The Center recently released a major study, for example, which “identifies who the most influential people are among the Jihadi thinking class, what they are thinking, and where the movement is most vulnerable ideologically.” See J. Brachman, edited. Militant Ideology Atlas. West Point: Combating Terrorism Center, November 2006.

50 Lt. Col. Andrew W. Stewart of the US Army War College argued in a recent article that “Success in promoting the US worldview, and winning the Global War on Terrorism (GWOT) specifically, rests in Americans recognizing their own cultural uniqueness and developing a high level of cultural savvy in dealing with more traditional cultures.” See A.W. Stewart. Friction in US foreign policy: cultural difficulties in the world. Carlisle Papers in Security Studies, Strategic Studies Institute, US Army War College, Carlisle, PA, June 2006.

51 F.T. Krawchuk. Strategic communication: an integral component of counterinsurgency operations. Connections, Vol. 5, #3, Winter 2006.


or the messages delivered must be consistent with substantive policy and behavior. Otherwise, any public diplomacy or communication effort is likely to be dismissed as simply propaganda or attempts to manipulate perceptions. Implementing a comprehensive strategy for countering ideological support for terrorism or violent extremism must include constant assessment of the impact of policy priorities and choices. The legacy of US policy that assigned greater priority to regional stability over democracy in the Middle East during the years of the Cold War and beyond has left many in the region skeptical regarding US intentions.52 Striving for consistency in stated intentions and actions will weaken charges of hypocrisy or pursuing double standards, and contribute to favorably influencing the “hearts and minds” of the next generation.

Discussions devoted to countering ideological support for terrorism with colleagues from the Middle East will invariably turn to seeking a sustainable resolution of the Israeli-Palestinian crisis. There may be some truth to the claim that reaching a settlement for this issue would not bring an end to terrorism, but it is also true that progress on the Israeli-Palestinian problem could help to improve the psychological climate in the region and eliminate a major source supporting terrorist recruitment. Renewed international attention to addressing critical policy issues, such as the Israeli-Palestinian settlement and integration of Muslims in European and other communities, will demonstrate the sincerity of intention that exists for countering the sources of militant religious extremism that threaten the security of free societies throughout the global community.

52 Stephen A. Cook, writing recently in Foreign Affairs, observes that ranking democratization beneath the interests of preserving security and stability has led to pervasive skepticism throughout the Arab world. See S.A. Cook. The right way to promote Arab reform. Foreign Affairs, 84(2), March-April 2005.

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Index

9/11 (terrorist attacks of), 23, 26, 30, 38, 51, 229–30, 237, 240, 246, 258, 263

adoption, 60, 89, 91–2. See also Kafalaadultery, 63. See also divorce; marriageAfghanistan, 26, 50, 256aggiornamento, 26, 31Al Qaeda, 25, 252, 254, 255–6, 257, 258.

See also terrorismAlbania, 50, 79, 151, 170Alevism. See under IslamAlgeria, 25, 26, 71, 91, 92, 94, 97, 99,

100–101, Ali, Ayaan Hirsi, 62, 224, 236alimony, 101–2. See also divorceannulment, 88. See also divorceanti-Semitism, 38, 42, 43, 235. See also

racismArab Spring, 1, 3Armenia, 147, 150–51assimilation, 34, 36, 39, 62. See also

immigrationasylum, 50, 51, 234. See also immigrationAtatürk, Mustafa Kemal, 154, 156, 157,

160. See also Kemalismatheism, 15, 33, 178Austria, 38, 48, 59, 61, 108

Otto-Preminger-Institut v., 41, 42

Bahrain, 204, 207Balkan War, the, 171Balkans, the, 50, 69Bangladesh, 36–7, 207Bank Negara Malaysia, 199–200banking, 59, 189–214. See also gharar; ribāBanking and Financial Institutions Act of

1989, 199–200Bavaria, 63Belgium, 24, 99, 110, 112

General Assembly of Muslims in, 76–82

Marckx v., 96

Muslim population in, 71–85, 111religion in, 72–5

Bencheikh, Kebir, 79Benjelloul, Kissi, 79, 80 Beyazgül, Coskun, 80–81Bible, the, 195bigamy, 97blasphemy, 42–3

and Christianity, 41and Islam, 40, 218–22

Bosnia and Herzegovina, 50, 66religious education in, 165–87

Bouhna, Brahim, 79Boulif, Mohamed, 77, 78–9, 80Buddhism, 260burka, 232, 233. See also hijab; niqab

caliphate, 17–18, 63, 66, 151, 153, 252Catholicism. See under ChristianityCenter for Excellence—Defense Against

Terrorism, 248Center for High Defense Studies, 248chaplain, 113, 73, 80, 82–3China, 38–9, 195Chirac, Jacques, 30, 126Christ, 13Christianity, 21, 25, 27, 32–3, 49, 54, 64–5,

150, 160, 220, 231, 242, 260Anglican, 72Catholic, 12, 13, 16–17, 26, 39, 42, 71,

72–4, 75–6, 83, 85, 94, 108, 174, 180, 182, 184, 222

Chaldean, 148Church of Jesus Christ of Latter-day

Saints (Mormon), 74Greek Orthodox, 147Jehovah’s Witness, 74Lutheran, 222Nestorian, 148Orthodox, 72, 94, 174, 180, 185–6Protestant, 71, 72, 76, 83–4


secularism and, 7, 8, 13–15symbols of, 128Syriac, 148

Church of Jesus Christ of Latter-day Saints. See under Christianity

coexistence, 34, 37, 38, 187. See also immigration

Cold War, 87–8, 238, 248–9, 259, 262, 264communism, 225, 229, 233, 248Comte, Auguste, 11–12conscience, freedom of, 30–32, 41, 123–6,

128, 133–8. See also religion, freedom of

Conseil d’Etat (of France), 120, 121, 123–4, 129, 131, 134–7, 139, 141

Countering Ideological Support for Terrorism, 241

Croatia, 166Crusades, the, 27, 32–3, 34, 36, 39, 64Czech Republic, 225

Dahlab v. Switzerland, 160darūra, 57, 64Darwin, Charles, 11Dayton Peace Accords, 174, 175DD v. France, 95democracy, 69–70, 144, 166, 178–9, 221–2,

224–6, 254–6, 263Islam and, 22–3, 24–7, 55, 61–5, 235secular, 10–11, 21–2, 40, 61–5, 66, 115,

155, 158, 218 within religious groups, 15–16, 76–82,

83–4Denmark, 53, 217–27Department of Defense (of United States),

253discrimination, 94, 103, 111, 133, 161, 175,

178n55, 179, 183, 199, 235. See also equality; inequality

divorce, 47, 59, 60, 61–2, 88, 89–90, 95, 98–103. See also marriage

Diyanet, 147–53, 155–7, 162–3Diyanet Işleri Türk Īslam Birliği, 48–9dowry (maher), 90

ECHR. See European Convention on Human Rights

education, 34

bias in, 32–3, 36, 38–9cultural, 34, 109, 263of imams (see under imam)of immigrants, 51, 61, 110, 113–14religious, 20, 27, 54, 76, 77, 83, 107–9,

111, 147–8, 151–7, 165–87 (see also mekteb)

right to, 163secularism in, 117–45

Egypt, 1, 25, 26, 103, 190, 195, 207employment, 27, 51, 56, 57–8, 237equality, 8, 32–3. See also inequality

gender, 59, 61, 67–8, 85, 94–5, 96, 101, 103, 160–61

religious, 8, 49, 54, 72, 83, 150, 175–6 (see also religion, freedom of)

European Convention on Human Rights, 31, 55, 84, 95, 154–5

Article 9 of, 29, 52, 127 (see also religion, freedom of; conscience, freedom of)

Article 10 of, 41, 42European Court of Human Rights, 1, 31,

41–2, 53, 88, 95–6, 138, 139–42, 148, 154, 159, 160–61

European Union, 89, 189–214, 232, 237, 246

expression, freedom of, 41, 217–27extremism, 49, 51, 62–4, 70, 141, 217–27,

230–35, 237, 241, 243, 245–64

family, 87–93, 256. See also adoption; divorce; marriage

fatwa, 40, 58, 66finance. See bankingfiqh, 52, 112, 165, 189n3Fitna, 24, 31France, 25, 38, 113, 208, 210, 246–7

DD v., 95hijabs in, 29–31Muslim population in, 50, 68, 69,

88–100, 103, 107, 206, 229religion in, 12, 53, 67, 117–45 secularism and, 7 (see also laïcité)

Germany, 38, 99–100, 108, 207, 209–11, 225, 239

constitution of, 53–4

Index 283

immigrants in, 49–51, 240Muslim population in, 16, 20, 49, 107,

206, 229–30, 234–6, 241–2religion in, 10n12, 12, 20, 47–70 secularism and, 7, 235

gharar, 194, 197, 199globalization, 28, 220, 224, 227, 231–3,

237–8, 243van Gogh, Theo, 217, 224, 234Greece, 151Greek Orthodox Christianity. See under

Christianity

Hadith, 26, 112, 258Haeckel, Ernst, 11hajj, 58halal, 83, 112Hamas, 230, 232, 257Handyside v. United Kingdom, 42–3harām, 58, 160Hasan and Eylem Zengin v. Turkey, 154–5hate speech, 32, 222, 223–4. See also

blasphemy; expression, freedom of; racism

headscarf, Islamic. See hijabHezbollah, 230, 257, 258hijab (veil), 28–32, 102, 103, 232. See also

burka; niqabin Denmark, 53, 226in France, 29–30, 117–45pressure to wear, 88, 143–4, 160–61in Turkey, 139–42, 148–9, 157–61, 163

Hinduism, 36–7, 38Hizb-ut-Tahrir, 49, 63, 226, 241Holocaust, 233. See also World War IIhuman rights, 21–5, 27–9, 30–31, 36, 40,

49, 55, 70, 103, 119, 148, 150, 231, 242, 255

humanism, 11n14, 72, 75Hungary, 225Hussein, Saddam, 26

ijtihad, 23, 102, 192–3imam, 66–8, 77, 219

education of, 79, 80, 82, 85, 107–16, 152, 167, 170, 172–3

immigration, 15, 23–4, 30, 49–51, 56–7, 61, 63, 71, 89, 93, 107–11, 113–

16, 230–32, 234, 236–8, 240–42. See also assimilation; coexistence; integration

India, 36, 50Indonesia, 191inequality, 96, 247. See also equality

gender, 51, 60, 87–8, 92religious, 74–5

inheritance, 55, 59–60, 90, 92–8Inholland Hogeschool, 113Institut Catholique, 108, 113integration, 36, 37, 43, 107, 184. See also

immigrationinterest. See banking; ribāInternational Convention on Civil and

Political Rights, 141–2International Covenant on Civil and

Political Rights (ICCPR), 8n4intolerance. See discriminationIran, 26, 27, 28–9, 50, 89, 190, 191, 229Iraq, 25, 26, 116Iraq War, 205Islam

Alevi, 148–9, 155–6, 162authoritarianism and, 17banking and (see banking)defectors from, 62–4, 236–7Hanafi, 148, 162, 165modernization of, 23–7, 28, 31–2, 64,

100–102, 151–3, 159, 190, 241–2 (see also democracy; secularism)

perceptions of, 51–2 (see also Belgium, Muslim population in; France, Muslim population in; Germany, Muslim population in; United Kingdom, Muslim population in)

political. See Islamismrepresentative body for, 15–16, 75–83,

212–13, 259Shafii, 148, 162Shia, 19, 26Sufi, 52Sunni, 16–17, 27, 147, 155–6, 162symbols of, 49 (see also hijab; minaret;

mosque)and violence (see terrorism)

Islamic Cultural Center (of Belgium), 76Islamic Development Bank, 190


Islamism, 1, 3, 15–16, 22–8, 30, 32–3, 62–4, 172n34, 218, 224–6, 229–43, 252, 258

Islamophobia, 41–3, 51, 230Israel, 25, 27, 35, 39, 232, 251, 264Italy, 114–16

jahiliyya, 16. See also secularism, Muslim perspectives on

Japan, 38–9Jehovah’s Witness. See under ChristianityJesus Christ, 13jihad, 230, 250, 252, 256. See also

terrorismJospin, Lionel, 29Judaism, 21, 25, 27, 33, 38, 42, 49, 54,

72, 147, 160, 174, 180, 218, 220, 222–3, 229, 260

symbols of, 56, 128

Kaçar, Meryem, 78Kafala, 91–2kafāla, 202kalām, 165Kelek, Necla, 62, 236Kemalism, 151, 156–7. See also Atatürk,

Mustafa KemalKhilavet Devleti, 63Khomeini, Ruhollah (Ayatollah), 26, 28, 40Kiliciksen, Hilal, 135kosher, 112Kosovo, 50, 170Kurds, 148, 151

laïcité, 24, 29, 68, 93–7, 118–19, 121–5, 127, 133, 134–5, 138–9, 142–4. See also secularism

bin Laden, Osama, 27n14, 251, 252, 256Lebanon, 50Leyla Şahin v. Turkey, 139–41, 159–61London Interbank Official Rate, 202, 204Libya, 1, 25Luther, Martin, 233

Macedonia, 50, 170Maghreb, 23, 71. See also Algeria; Libya;

Morocco; TunisiaMalaysia, 189–214

Maloujahamoun, Nouredine, 77Marckx v. Belgium, 96marriage, 56–7, 59–60, 61, 87–9, 90, 93–5.

See also divorcepolygamous, 56–7, 87, 92–3, 97–8, 100

Marx, Karl, 196medresa, 166, 167, 169–73, 178, 181mekteb, 166, 167–9, 179minaret, 48–9, 232, 233Mohammed, 17–18, 22, 26, 102–3,

192n17, 217–20, 223, 234Mormon. See Christianity, Church of Jesus

Christ of Latter-day SaintsMorocco, 23, 26, 47, 71, 77, 79, 82–3, 91,

93, 94, 95, 97, 100–102, 107, 257mosque, 27, 48–9, 52, 54, 64, 77–8, 80,

82–3, 88, 113, 114, 166, 178, 232, 233

Moureaux, Philippe, 77mufti, 66murabahah, 202, 204, 206, 208, 213Murabitun, 49, 63Muslim Brotherhood, 26. See also Qutb,

Sayyid

Nasreen, Taslima, 36–9, 43Nasser, Gamal Abdel, 25Nasserianism, 25, 26, 31–2National Office of the International

Association for the Defense of Religious Liberty, 125

Nazism, 38, 221, 222, 225, 234Netherlands, the, 48, 62, 78, 110, 113, 224,

236niqab, 56. See also burka; hijabNorth American Trade Organization, 237Norway, 222

Otto-Preminger-Institut v. Austria, 41, 42Ottoman Empire, 25, 31, 149–51, 165, 195,

233

Pakistan, 36, 79, 190, 191, 196–7, 204, 207, 220, 223

pluralism, 14, 36, 47, 70, 110, 115, 123, 148, 155, 162, 227. See also secularism, political

Poland, 229

Index 285

polygamy. See under marriageprayer, 55, 57–8, 179prejudice, 23, 32–9, 41–2, 129, 175private international law, 47, 58–60,

87–103 Prophet, the. See MohammedProtestantism. See under ChristianityPutin, Vladimir, 260

Qur’an, the, 11n14, 26, 47, 54, 64, 69, 95, 102–3, 111, 112, 160, 179, 199, 218–19, 250,

and politics, 17, 22–3, 67, 88–9, 231and terrorism, 241, 252, 258

Qutb, Sayyid, 16, 26, 252, 256

racism, 23, 30, 32, 35, 41–3, 70, 222, 234–7al-Rāfi‛ī, Sālim Ibn ‛Abd al-Ghanī, 63, 64Ramadan, 168Refah Partisi, 88religion

autonomy of, 226–7freedom of, 8–10, 29–30, 48–9, 53–4,

57, 74, 84–5, 111, 122, 147–9, 162–3, 167, 178

separation of state and, 10–11, 13, 24, 53, 143, 167

Republic of Serbia. See Serbiarepudiation. See divorceribā, 59, 190–91, 193–7, 213Rushdie, Salman, 28, 40, 41, 224Russia, 27, 229, 246, 247, 260, 262

Sadat, Anwar, 190Şahin, Leyla, 138n43, 139–41, 142, 159–61Sarkozy, Nicolas, 24, 131Satanic Verses. See Rushdie, SalmanSaudi Arabia, 27, 63, 191secularism, 2, 7–20, 103, 112, 115, 129–30,

231–2, 239. See also laïcitédoctrinal, 11–12, 20 Muslim perspectives on, 15–20, 242,

254–6 political, 7–11, 12–19in Turkey, 151–4, 156–9, 161

security, 219–20, 225, 230–32, 237–40, 242–3, 245–64

freedom restrictions due to, 238

September 11, 2001. See 9/11Serbia, 171, 174, 175–6, 184sharī’a, 15–16, 23, 26, 28, 47–8, 54–61,

66, 69, 88, 166, 180, 189, 191–7, 199–201, 205–7, 208, 210–13, 226, 231, 252

Shia. See under IslamSikhism, 119, 133Singapore, 204Six Days War, 25social security, 52, 54–7, 63, 190Spain, 60–61, 107, 111–12, 229speech, freedom of. See expression,

freedom ofStasi Commission, 30, 126, 131, 138. See

also hijab, in Francestereotype, 2, 20, 23, 31–5, 43Sudan, 190Sufi. See under Islamsukuk, 204, 205, 207, 210. See also bankingSuleiman the Magnificent, 25Sunna, 67, 192Sunni. See under IslamSweden, 222Switzerland, 48, 53, 100, 207

Dahlab v., 160synagogue, 49Syria, 1, 25, 26, 50, 220, 224

Tablighi Jamaat, 63talak. See divorceTaliban, 26, 230, 239, 256terrorism, 3, 23, 32, 39, 80, 116–17,

218–19, 223, 225, 229–30, 237–40, 245–64. See also extremism

internet use for, 254Islamic actions against, 251, 257–8

theocracy, 12, 16–17, 18, 256Torah, the, 195. See also JudaismTrabelsi, Nizar, 80Tunisia, 1, 25, 88, 94, 103Turkey, 23, 50, 71, 77, 79, 82, 88, 107, 207,

232, 258constitution of, 147–8, 151–7constitutional court of, 157–63education in, 147–63grand national assembly of, 151Hasan and Eylem Zengin v., 154–5


Leyla Şahin v., 139–41, 142, 159–61religion in, 147–63, 261

Turkish-Islamic Union of the Institution for Religious Affairs. See Diyanet Işleri Türk Īslam Birliği

Ugurlu, Semsettin, 81ulama, 150, 165–6, 169, 172n34, 179, 182United Arab Emirates, 204United Kingdom, 25, 204, 206–7, 208,

209–11, 224Handyside v., 42–3Muslim population in, 50, 69, 230,

247United Nations, 101, 141, 149n3, 219,

237United States, 23, 26–7, 122, 205–6, 230,

245–6, 248–9, 253–4, 262–4constitution of, 149n3, 162

Universal Declaration on Human Rights, 8n4

Universite Catholique de Louvain, 79, 112usury. See ribāUzbekistan, 142

Vandeurzen, Jo, 80–81veil, Islamic. See hijab

weapons of mass destruction, 238Westergaard, Kurt, 218, 223n13, 234World War II, 38–9, 92, 231

yarmulke, 128Yemen, 1Yugoslavia, 71, 166, 167–71, 172, 176,

178, 187

Zionism, 25, 27

islam.and.political book

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