By Abdel Azziz Qaasim Illi

Student MA in Arts of History and Middle Eastern Studies at the University of Berne and board member of the Islamic Central Council in Switzerland

The question isn’t that new it may at first glance appear. The Austro-Hungarian Monarchy introduced a so called “Islam-law” 1912 after it annexed Bosnia-Herzegovina in 1908 and therewith incorporated around 600’000 Muslims into the kingdom. The law which initially was limited to the Hanfi school of thought (but extended to all Muslims by an additional Islam Act in 1988) did not only lead to the official recognition of Islamic communities, but granted them a restricted right of self-administration as well as the right to appoint Imams as army chaplains for Muslim soldiers. Article 6 of the “Islam-law” stated that “the doctrines of Islam, its institutions and customs” shall enjoy protection, unless they were “in contradiction to state law.” The Habsburg rulers obviously anticipated a systematic incongruence between parts of what they called “Islamic customs” and their state law, leading them to assign legal primacy to the latter.

In late 19th century Switzerland witnessed a fierce debate over Jewish kosher butchering, resulting by 1893 in a referendum, prohibiting the religious slaughter practice. Although it was directed at the Jewish minority historic sources prove the existence of a discourse trying to establish public awareness of religious determined “barbarian cults”, contradicting the moral code of the Christian society and allegedly even threatening the liberal state. Though in neither case we would find the term sharia or one of its common translations, references to Islamic concepts such as polygyny, made it clear, that there were indeed unbridgeable differences in regard to what was seen as morally appropriate.

The infamous case of Salman Rushdi didn’t only trigger heated discussions about the Iranian Revolution, the sharia and Islam as a potentially hostile entity in Western capitals, but more interestingly, it compelled the Muslim world, its governments as well as its scholars, to comment on the fatwa in order to clarify their stances. Established institutions such as Al-Azhar, the Islamic Jurisprudence Academy in Mecca or the OIC were quick to criticize Khomeini’s verdict on grounds of procedural flaws, most notably the lack of any trial. In addition, Khomeini’s cousin, Ayatollah Mehdi Ruhani, the former head of the Shiite community in Europe declined to implement the sentence of death, and argued that Europe wasn’t under the rule of sharia and therefore its application would contradict the respective national laws. In contrast, Khomeini acted upon the assumption that the sharia’s area of validity was universal and couldn’t be restricted to Islamic states whatsoever.

While some institutions refused to endorse the fatwa, there were not quite few to embrace it. In an open infringement to the national penal code the Union of Islamic Students‘ Associations in Europe even offered their assistance to the Iranians.  20 years later and under the shadow of Europe’s anti-migration discourse probably no established Muslim leader would dare to reaffirm the 1989 verdict. The question of the sharia’s applicability in non-Muslim contexts has in the meantime topped the agenda of Central European public discourses. The term itself is widely met with disapproval and in European minds most likely associated with the Hudud-punishments, i.e. stoning and flogging. Recent debates accompanying the minaret-ban in Switzerland or the niqab-ban in France have confirmed sharia’s throughout negative image amongst Europeans.

These examples or the coercion of the discourse force Muslim representatives and intellectuals into deeper reflections on how to deal with such questions in non-Muslim contexts in future. Since Muslim scholars have yet to reach a broad consensus on how to answer the historically new situation that large numbers of Muslims are living as minorities under non-Islamic rule, western Muslim organizations have tried for years to find their own way. Although the events of 9/11 have forced most associations to release either a certain “Islam Charta” or to enhance their bylaws by an act affirming the constitutional order of their respective country, the crucial point, what if state law and sharia law contradict, has never been exhaustingly discussed. Especially liberal Muslim representatives have in the past tended to spare the discussion by denying the existence of any disaccord between the two laws. In a pre-9/11 world this might have been a suitable way of bridging gaps. Even today, no doubt, it is a core task in all interreligious dialogues to emphasize common ground rather than difference. Nevertheless, the times when it was a convenient key to mutual understanding to turn a blind eye on difference has abruptly come to an end. Islam’s critics do not leave any stone unturned to construct public fear of Islam. The question therefore needs a more thorough approach examining the question on two layers: How would a religiously acceptable solution for Muslims look like and would the non-Muslims trust in it?

In order to clarify what aspect of the sharia is being discussed here, we have to divide it into the classical threefold pattern: public law, criminal law and private law. While public law currently doesn’t have any significant dimension in public discourse, criminal as well as private law certainly have.

When the Islamic Central Council of Switzerland (ICCS), meanwhile the most influential Islamic grassroots organization in the country, was founded, it had to deal with the question. Instead of merely enhancing its bylaws by flowery phrases, the general assembly introduced an innovative and comprehensive solution. It recognized at once that parts of the sharia were potentially eligible to antagonize corresponding values of the liberal democratic system, unless an elaborate set of theory was produced to deliver Swiss Muslims with a reasonable explanation leading to a comprehensible moral justification of the Swiss Muslims’ status within a possible conflict of different norms.

Board members found that the systems theory thinking might be a fertile initial approach. In fact, if we assume the existence of Islamic and non-Islamic systems as two sociological types, people may have less difficulty accepting its diverse premisses resulting in divergent moral and subsequently legal conceptions. While we admit our incompetence to positively define the ideal Islamic system, we may confidently claim that Central European states are not of that type. This methodology of thinking offers sane answers to both, Muslims and non-Muslims living together in a liberal democratic polity, which couldn’t accept parallel law structures for members of different confessions as it was practiced under the Ottoman Millet-System for instance.

Muslims who could not dissociate themselves from their divinely sanctioned laws may instead transcend its application and project it back to the Islamic system. In regard to the often discussed Hudud-punishments they would stress their moral justification inside the framework of an Islamic system, which of course doesn’t only define penalties but in fact sets the ethical premisses preventing its subjects from transgressing and therewith intrinsically limiting the necessity of the Hudud-application.

For many Muslims this approach may not come as a surprise. However, the topic in its very nature seems still or again too delicate to trigger an in-depth debate amongst European Muslim scholars. The question is for how long they may abstain, without risking once more to be defined by others rather than defining themselves.

*An Arabic version of this essay was published on November 1th by Ash-Shuruq Newspaper in Cairo.