Islam and Western Law

Council of Europe: "The Institution of Sharia Law and a Theocratic Regime [Are] Incompatible with … a Democratic Society"

The Council of Europe's new resolution about Sharia at home and abroad.

|The Volokh Conspiracy |

From Resolution 2253 (Jan. 22, 2019), "Sharia, the Cairo Declaration and the European Convention on Human Rights":

[4.] The Assembly considers that the various Islamic declarations on human rights adopted since the 1980s, while being more religious than legal, fail to reconcile Islam with universal human rights, especially insofar as they maintain the Sharia law as their unique source of reference. This includes the 1990 Cairo Declaration on Human Rights in Islam, which, whilst not legally binding, has symbolic value and political significance in terms of human rights policy under Islam. It is therefore of great concern that three Council of Europe member States—Albania, Azerbaijan and Turkey (with the limitation "so far as it is compatible with its laws and its commitments under international conventions")—have endorsed, explicitly or implicitly, the 1990 Cairo Declaration, as have Jordan, Kyrgyzstan, Morocco and Palestine, whose parliaments enjoy partner for democracy status with the Assembly.

[5.] The Assembly is also greatly concerned about the fact that Sharia law—including provisions which are in clear contradiction with the Convention—is applied, either officially or unofficially, in several Council of Europe member States, or parts thereof.

[6.] The Assembly recalls that the European Court of Human Rights has already stated in Refah Partisi (The Welfare Party) and others v. Turkey that "the institution of Sharia law and a theocratic regime were incompatible with the requirements of a democratic society". The Assembly fully agrees that Sharia law rules on, for example, divorce and inheritance proceedings are clearly incompatible with the Convention, in particular its Article 14, which prohibits discrimination on grounds such as sex or religion, and Article 5 of Protocol No. 7 to the Convention (ETS No. 117), which establishes equality between marital partners. Sharia law is also in contradiction with other provisions of the Convention and its additional protocols, including Article 2 (right to life), Article 3 (prohibition of torture or inhuman or degrading treatment), Article 6 (right to a fair trial), Article 8 (right to respect for private and family life), Article 9 (freedom of religion), Article 10 (freedom of expression), Article 12 (right to marry), Article 1 of Protocol No. 1 (ETS No. 9) (protection of property) and Protocols Nos. 6 (ETS No. 114) and 13 (ETS No. 187) prohibiting the death penalty.

[7.] In this context, the Assembly regrets that despite the recommendation it made in its Resolution 1704 (2010) on freedom of religion and other human rights for non-Muslim minorities in Turkey and for the Muslim minority in Thrace (eastern Greece), asking the Greek authorities to abolish the application of Sharia law in Thrace, this is still not the case. Muftis continue to act in a judicial capacity without proper procedural safeguards. The Assembly denounces in particular the fact that in divorce and inheritance proceedings—two key areas over which muftis have jurisdiction—women are at a distinct disadvantage.

[8.] The Assembly is also concerned about the "judicial" activities of "Sharia councils" in the United Kingdom. Although they are not considered part of the British legal system, Sharia councils attempt to provide a form of alternative dispute resolution, whereby members of the Muslim community, sometimes voluntarily, often under considerable social pressure, accept their religious jurisdiction mainly in marital and Islamic divorce issues, but also in matters relating to inheritance and Islamic commercial contracts. The Assembly is concerned that the rulings of the Sharia councils clearly discriminate against women in divorce and inheritance cases. The Assembly is aware that informal Islamic Courts may exist in other Council of Europe member States too.

[9.] The Assembly calls on the member States of the Council of Europe to protect human rights regardless of religious or cultural practices or traditions on the principle that where human rights are concerned, there is no room for religious or cultural exceptions….

[11.] The Assembly calls on Council of Europe member States and those whose parliaments enjoy partner for democracy status with the Assembly to:

[11.1] bolster pluralism, tolerance and a spirit of openness by proactive measures, taken by governments, civil society and religious communities, whilst respecting common values as reflected in the European Convention on Human Rights;

[11.2] design and implement educational and vocational programmes aimed at rooting human rights and fundamental freedom as enshrined in the Convention, and in particular the principles of gender equality and of non-discrimination based on religious beliefs, in the cultural and legal tradition of their countries;

[11.3] promote, within the multilateral organisations of which they are members or observers, the universal values of human rights without any discrimination based inter alia on sex, gender, sexual orientation, gender identity, and religious faith or the lack of it;

[11.4] engage in the process of revision of the Cairo Declaration launched by the Organisation of Islamic Cooperation (OIC) so as to ensure that the future OIC Declaration on Human Rights is compatible with universal human rights standards and the European Convention on Human Rights which is binding on all Council of Europe member States and a source of inspiration for those whose parliaments enjoy partner for democracy status.

[12] The Assembly calls on Albania, Azerbaijan and Turkey, to consider distancing themselves from the 1990 Cairo Declaration by:

[12.1] considering withdrawing from the Cairo declaration;

[12.2] making use of all available means to make declarations, so as to ensure that the 1990 Cairo Declaration has no effect on their domestic legal orders that may be inconsistent with their obligations as Parties to the European Convention on Human Rights; or

[12.3] considering performing some formal act which clearly establishes the Convention as a superior source of obligatory binding norms.

[13] The Assembly, while noting the legislative change in Greece which made the practice of Islamic sharia law in civil and inheritance matters optional for the Muslim minority, calls on the Greek authorities to:

[13.1] rapidly and fully implement the Grand Chamber judgment of the European Court of Human Rights in the case of Molla Sali v. Greece and in particular, to monitor whether the above-mentioned legislative change will be sufficient to satisfy the requirements of the Convention;

[13.2] allow the Muslim minority to choose freely its muftis as purely religious leaders (that is, without judicial powers), through election, thereby abolishing the application of Sharia law, as already recommended in Resolution 1704 (2010).

[14] The Assembly, while welcoming the recommendations put forward in the conclusions of the Home Office Independent review into the application of sharia law in England and Wales, as a major step towards a solution, calls on the authorities of the United Kingdom to:

[14.1] ensure that Sharia councils operate within the law, especially as it relates to the prohibition of discrimination against women, and respect all procedural rights;

[14.2] review the Marriage Act to make it a legal requirement for Muslim couples to civilly register their marriage before or at the same time as their Islamic ceremony, as is already stipulated by law for Christian and Jewish marriages;

[14.3] take appropriate enforcement measures to oblige the celebrant of any marriage, including Islamic marriages, to ensure that the marriage is also civilly registered before or at the same time as celebrating the religious marriage;

[14.4] remove the barriers to Muslim women's access to justice and step up measures to provide protection and assistance to those who are in a situation of vulnerability;

[14.5] put in place awareness campaigns to promote knowledge of their rights amongst Muslim women, especially in the areas of marriage, divorce, custody of children and inheritance, and work with Muslim communities, women organisations and other non-governmental organisations to promote gender equality and women's empowerment;

[14.6] conduct further research on "judicial" practice of Sharia councils and on the extent to which such councils are used voluntarily, particularly by women, many of whom would be subject to intense community pressure in this respect….

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

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  1. Odd. I thought the Greeks had abolished Sharia Law in West Thrace last year. (When they realised in Athens that it still existed.)

    1. I think that was just the European Court saying it wasn’t okay, overturning the prior Greek decision.

  2. Many hundreds of years ago, Islamic legal scholars considered the responsiblities of Muslims travelling outside of the Islamic world. First, it was asked whether it was acceptable for Muslims to travel to a place that did not follow Islamic Sharia. The answer was yes, with caveats. The believer was required to do his business, and get home as soon as possible. He was also allowed to forgo some Islamic requirements (such as the inability to attend a mosque), but to keep as much of his religious practice as he could.

    But it was clear that a good Muslim could not live a proper life in the long term outside the lands of the believers. To these religious scholars – the greatest of their age – it was inconceivable that a Muslim should not live under Sharia. Sharia was not to them a local legal standard. Rather, it was the only way for a person to live a good life and serve Allah.

    So what happened since then? I’m still waiting to hear who changed the rules of Islam, and how Mulsims can claim to follow their religion faithfully in the lands of the infidels. No one seems to want to talk about this – especially Muslims.

    1. Not being religious myself, I have limited knowledge and experience with these matters, but hasn’t Christianity had to similarly adapt itself? No more stoning sinners or Inquisition, no more wives controlled by husbands. Mormons had to eschew multiple wives; presumably Muslims in the West only have one legal wife if married in the West. I don’t know what happens when a Muslim with multiple legal wives from a Muslim country travels to the West; I’d guess tourists are ignored for simplicity’s sake, but what happens if they take up residency? What happens if their legal Muslim wives number below the limit but are still recognized in the West, and they want to take another who would be legal per Islam? It would seem pretty odd to consider the third or fourth marriage to be bigamy, but not the already existing second. What happened to the extra Mormon wives when their church changed its dogma? Were they grandmothered in?

      Interest on loans, all sorts of interesting problems.

      1. Of course, stoning sinners was supposed to have been right out for Christians from the beginning; “Let he who is without sin cast the first stone”, remember?

        The Old testament is a record of when Christianity was part of Judaism, remember. It wasn’t actually Christianity until the New testament.

        Sending the US military to force Mormons to change their scripture to reject polygamy was about as clear an example of a 1st amendment violation as you’ll find in the history of the US.

        I don’t know how the US treats legal polygamists traveling in the US from abroad, interesting question. Looking it up, apparently they turn a blind eye to it so long as it’s a visit. It’s a disqualification for immigration.

        1. I wonder when polygamists will start mounting legal challenges to bigamy laws.

          I understand that portions of the Utah bigamy law dealing with cohabitation were declared unconstitutional. It is apparently now legal for as many adults as want to to cohabitate and make whatever domestic relationships they wish, including child rearing, financial relationships and such.

          It has always seemed to me that like the LGBT community the right of individuals to marry whoever they want including more than one person (as long as the marriage is consensual on all sides) is equally valid.

          Of course many on the left think we should treat Muslim nations as equals and accept Muslims as member of our society, except of course when their beliefs conflict with political orthodoxy.

          But then I also wonder if we haven’t outgrown marriage as a legal institution..

          1. The polygamous have always had a much, much stronger legal case than the SSM people, as polygamy is a traditional form of marriage going back to prehistory, and practiced even today in many places.

            While SSM was basically invented at the turn of the century, and wasn’t legal or practiced anywhere until a sort of mania swept the world legal community.

          2. Even the most advanced courts, to my knowledge, aren’t treating polygamy like it’s as good as SSM.

            They’re saying polygamists can’t be put in prison just for being polygamists. Which is the rough equivalent of the Lawrence case in 2003 – an eternity ago – that adults can’t be put in prison for consensual noncommercial gay sex in private.

            It took a while to get from not imprisoning people to formally recognizing their preferences in law and compelling bakers to make gay cakes.

            It will probably take a while for polygamist rights to evolve, too. It may not happen at all unless they can figure out a way to make polygamy (or “polyamory” in general) to look more feminist and PC.

            1. Start with 3 lesbians married to each other.

              1. Gives me a thought …. if polyamory is made legal, and persons A and B are married …. can A marry C without B’s consent? Is that different from A and B marrying C as far as inheritance etc?

                This could get interesting.

                1. Not really. If B really objects, B can divorce A before A’s marriage to C.

          3. I think a lot of it is that polygamists don’t really need the government to recognize their additional marriages, as it wouldn’t really provide them any additional benefits from a legal standpoint (and it would in many ways defeat the government’s purpose in recognizing marriages in the first place) They just need the government to not fine or arrest them for having a purely religious marriage ceremony and calling more than one person their spouse. AFAIK Utah is the only state that still outlaws “polygamous cohabitation” and there was a recent case regarding it, but I don’t recall the outcome

          4. “I wonder when polygamists will start mounting legal challenges to bigamy laws.”

            At least 5 years ago.

          5. As an aside, it is slightly amusing that the laws outlawing polygamy are called bigamy laws. It seems to imply that we could have more than two spouses just fine, but clearly that isn’t the case.

    2. Interesting, if true. Perhaps these recommendations seemed necessary in the particular historical context. Who changed the rules? It seems it was these scholars hundreds of years ago, but the change did not last.

      Maybe that’s no surprise, since what you describe isn’t exactly a game plan for establishing the worldwide caliphate, or collecting jizya from the dhimmi.

    3. If you think Muslims don’t want to talk about it you must not have tried talking to many. The short answer is these were not “the rules of Islam” but rather the rules of man based on an interpretation of Islam, and of course interpretations change

      1. Pretty much the same as any Orthodox rabbi’s take on Rabbinical law.

  3. I wonder how much will change, even cosmetically. When discrimination is baked into the very heart and soul of a religion, and has been upheld for 1400 years, it’s kind of hard to disavow it. “My bad, so sorry, we’ll clean that right up” just isn’t in the cards. Will it ever be?

    One of my pet theories is that technology and wealth will continue freeing people from government and religious oversight, especially noticeably ever since the printing press. I wonder how Islam will adapt.

  4. The Assembly recalls that the European Court of Human Rights has already stated in Refah Partisi (The Welfare Party) and others v. Turkey that “the institution of Sharia law and a theocratic regime were incompatible with the requirements of a democratic society”.

    The Assembly and the European Court have a funny understanding of the word “democratic.” Instead of “having to do with rule by the people,” they seem to think it means “liberal” (in the broad sense). The examples the Assembly gives of things inconsistent with the requirements of a democratic society (discrimination on grounds of sex or religion, inequality between marital partners, violation of right to life, torture or inhuman or degrading treatment, punishment without a fair trial, disrespect for private and family life, denial of freedom of religion and expression, restrictions on the right to marry, violation of property rights, and capital punishment) are all things that could be conceivably emerge from the democratic process, either by direct vote of the people (i.e., pure democracy), or by legislation enacted by their freely elected representatives (i.e., representative democracy). That doesn’t mean they’re good things, but they are not inherently undemocratic.

    1. I’m not sure, but some human-rights guarantees in Europe have exceptions for limitations necessary in a “democratic society.” So they could be making clear that sharia isn’t one of those justifiable limitations.

      1. Indeed. “Necessary in a democratic society” has a specific meaning in the context of the European Convention on Human Rights. It’s a phrase that appears in many of the “justification clauses”, requiring not only that any interference with the stated right is for one of the purposes listed and prescribed by law, but also that it is “necessary in a democratic society”, i.e. proportionate.

        (It’s a bit of a clunky phrase, and it’s not even because of translation. It’s just as clunky in French and German, I checked. Eg. the French version of art. 9(2), concerning interference with the freedom of religion: La libert? de manifester sa religion ou ses convictions ne peut faire l’objet d’autres restrictions que celles qui, pr?vues par la loi, constituent des mesures n?cessaires, dans une soci?t? d?mocratique, ? la s?curit? publique, ? la protection de l’ordre, de la sant? ou de la morale publiques, ou ? la protection des droits et libert?s d’autrui. )

        1. It’s meant to give governing bodies excuses to intervene before member states introduce antidemocratic laws, implement majoritarian laws egregiously abridging human rights, or allow non-state actions that endanger the sense of “fraternity”. Hence, the over-broad free speech regulation in even the most democratic nations. Europe hasn’t always had a stable relationship with democracy and they recognize that shortcoming.

          1. Despite this sequence of posts, nothing has been brought up to challenge the original claim by Seamus.

  5. Choose reason. Every time.

    Especially over sacred ignorance and dogmatic intolerance.

    Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for backwardness, gullibility, ignorance, and bigotry. By ostensible adulthood it is no excuse.

    Choose reason. And education, modernity, science, inclusivity, and progress. This means avoiding insularity, ignorance, superstition, intolerance, and pining for good old days that never existed.

    Choose reason. Every time. Be an adult.

    Or, at least, try.

    1. Says someone who claims to be reverend lol

    2. Meh. Sharia law is essentially the secular law of the early Arab empire. The only problem with it is that it’s a bit difficult to change. But then so is the US constitution. Whatcha gonna do?

      1. The US constitution has a handy formal process for changing it. It just doesn’t get used these days because suborning judges is easier, and less subject to uppity states refusing to ratify changes.

        I have no idea how you go about changing sharia law.

      2. In the sense that it was the religious law, sure, why not call it something completely different like “secular”?

    3. “Be an adult.”

      Never! Hey Arthur, can you remind me what you were saying about he Florida Secretary of State the other day?

  6. Took those European liberals a long time to figure out that Islamic culture is largely incompatible with that of Western Society. Guess it literally took an invasion of a few hundred thousand illegals who don’t really care to be integrated into European society to pull away the blinders.

  7. “The Assembly is also concerned about the “judicial” activities of “Sharia councils” in the United Kingdom. Although they are not considered part of the British legal system, Sharia councils attempt to provide a form of alternative dispute resolution, whereby members of the Muslim community, sometimes voluntarily, often under considerable social pressure, accept their religious jurisdiction mainly in marital and Islamic divorce issues, but also in matters relating to inheritance and Islamic commercial contracts. The Assembly is concerned that the rulings of the Sharia councils clearly discriminate against women in divorce and inheritance cases. The Assembly is aware that informal Islamic Courts may exist in other Council of Europe member States too.”

    Are they worried that this is involuntary? Or would they deplore it even if it was totes consensual?

    1. “often under considerable social pressure, accept their religious jurisdiction”

      I’m not even sure why they included this phrase. People in the established justice system accept the secular jurisdiction of the courts, often under considerable social pressure. Is it to make sure that we know alternative dispute resolution is bad-wrong if it’s by Muslims? Are we going to get similar declarations about Jewish councils, or are they kosher because they discriminate against women less?

      1. I think the Jews are going to get theirs. They Europeans have already started going after circumcision and kosher slaughter.

  8. Hypothesis: The feminists scored a win here, overcoming Europeans’ generally accommodating attitude toward Muslims.

  9. Of particular concern is the statement’s antipathy towards private dispute resolution just because they don’t like Islam. Islam, having been part of Europe since the 700s, is hardly foreign to it. And private dispute resolution is based on the consent of the parties. To the extent the statement suggests people can’t “really” consent to Moslem dispute resolution, because, after all, they’re Moslem, it is simply expressing its dislike.

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