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Limits to the practice of religion - Sharia in Germany?

There has been frequent debate of late on the applicability of religious law in Europe.

The following questions have been central to this debate: Where does the religious freedom guaranteed by constitutional law stand in relation to foreign legal codes? Can Muslims in Germany apply Sharia?

No legal multiculturalism

From an academic point of view the following is to be noted with regard to German law: every legal system, including the German one, decides alone whether and to what extent foreign rules can be applied in its territory. There is no legal multiculturalism at this crucial level. On the other hand, German law acknowledges the need for foreign rules to be applied in specific cases.

Definition of the term "Sharia"

What does "Sharia" mean? As the term is used in very different ways, there is a great danger of misunderstandings. In the broader sense of the word, Sharia denotes all religious and legal rules of Islam as well as the instruments of its discovery and interpretation. This includes, for example, guidelines on ritual prayers, fasting and pilgrimage, but also on contract law, family and inheritance law, and criminal law.

Many understand Sharia in a narrow sense, essentially limited to the areas of family and inheritance law and of criminal law. This is where legal and cultural conflicts arise with traditional, and sometimes even with modern, interpretations: the draconian corporal punishments of so-called Hudud criminal law (still used today in some states shaped by Islam) contravene basic and human rights in the same way as those stipulations of Civil Law that provide for gender and religious inequality. The so-called ordre public, which enforces prevailing basic legal convictions in the face of any divergent codes, is directed against the application of provisions of this kind.

Areas of application for Sharia codes

Sharia codes may be practised in areas where German law itself provides for such: from the perspective of the legal system, it is simply a matter of applying its own laws. A basic distinction must be made between religious rules (prayer, fasting etc.) and legal rules (contract law, family law, criminal law etc.).

Religious rules

Religious rules enjoy the - not unlimited - protection of religious freedom guaranteed under constitutional law. Like adherents to other religions and ideologies in Germany, therefore, Muslims may build a suitable infrastructure (mosques etc.). To a certain extent, religious freedom also has an impact on relations under private law, e.g. on employment law. Here too, adequate attention must be paid to the religious needs of Muslims, whilst balancing the interests of business and individual requirements (e.g. prayer times).

Legal rules

In Germany legal rules can only be applied in cases that are closely defined by the law. Public Law, inclusive of criminal law, is excluded as far as possible. Application is therefore limited to the areas of International Private Law, dispositive German substantive law and social law.

International Private Law (IPL)

In certain cases of "international" (cross-border) circumstances, the law (cf. Art. 3 ff. Introductory Law of the Civil Code, EGBGB) stipulates that private legal relationships that have arisen with effect abroad continue to exist in principle when the persons concerned come to Germany. The same applies as long as they are foreign nationals living in Germany and the IPL rules that their private legal relationships must be judged in accordance with the law of their nationality. This also applies in principle for Muslim foreign nationals. Nevertheless, the ordre public also draws boundaries here: should the outcome of applying foreign codes be clearly incompatible with the basic legal concepts of Germany and there is adequate reference to the case here at home, then these rules shall not be applied. This affects, for example, the above-mentioned cases of unequal treatment of genders and religions.

The husband's right of repudiation

An example is the one-sided right of repudiation (so-called talaq) of the husband according to Islamic law, which contravenes the German legal code. If it is effectively practised abroad in accordance with the beliefs there, it depends whether the criteria for a divorce in accordance with German law would also have been present, or whether the outcome of the divorce serves the interests of the wife; the talaq can then also be recognised here at home, even though the institution as such is not accepted. It cannot however be recognised if the interests of the wife could not be protected during the procedure.

Dispositive German substantive law

Civil Law, which mainly regulates legal relationships between private individuals, opens many areas of (limited) individual freedom of scope, e.g. in contract law. For example, the German legal system approves in principle marriage contracts in which wives are promised a dowry in accordance with the legal concepts of Islam, and economic agreements that seek to avoid interest payments. The state of Saxony-Anhalt, for instance, has issued an Islamic loan to raise capital. However, unlike England, for example, approved religious divorce courts outside public courts may not rule on family law disputes in Germany, for good reason.

Social law

The application of foreign legal codes is possible only in exceptional cases outside the above-mentioned areas. One example is § 34 para. 2 Code of Social Law I, which results in a distribution of claims among surviving widows (or widowers) and thus also covers the traditional polygamous marriage under Islamic law.

Dealing with polygamous marriages

In Germany only monogamous marriages are effective in law. Entering into a polygamous marriage within the bounds of the marriage ceremony prescribed here at home is a punishable offence (§ 172 Criminal Code). This clearly expresses the German legal system's rejection of polygamous marriages (which are also rare in the Islamic world and banned in, for example, Turkey and Tunisia).
What however should be done about those marriages that have been entered into in accordance with the legal system in the country of origin of the persons concerned? German law makes a distinction between two case groups here: the first group are cases in which the persons concerned seek to derive privileges to which only married people are entitled. The polygamous marriage is not recognised in these cases. This applies, for example, to the easier subsequent immigration to this country of spouses or the inclusion of spouses in health insurance schemes.
The second group are cases in which wives invoke rights vis-à-vis the husband: here the German legal system has decided to grant such women protection, for example in maintenance and inheritance law or, as mentioned, in social law, as long as the rights are based upon contributions made by the husband. This in no way recognises the institution of polygamous marriage! The alternative would be to deny women the legal rights upon whose existence they have relied.

No basic contradiction between German law and Muslim attitudes

This information holds true for the application of foreign rules in general. One could defuse a considerable amount of the potential for conflict by a change in the law to adequately distinguish between domestic and foreign cases: the primary consideration of nationality instead of the usual place of residence in key parts of the IPL forces foreign rules to be applied on a massive scale, some of which contradict basic German convictions, and the effort of prevention by ordre public. An alignment to the regulations of typical countries of immigration, which seeks to avoid such clashes, would be desirable.
At the same time there is a need to educate Muslims: in many parts of the world shaped by Islam, and in the West above all, there are Muslims who on the basis of their religion find new interpretations that fit in to the essential framework of legal systems which are sensitive of a commitment to human rights. There is, on the other hand, still a need for information among the majority of the population on "unproblematic" aspects of Sharia and the principle of religious freedom for minorities as well. In this way it would become clear that German law and Muslim attitudes in no way have to contradict one another.

Prof. Dr. Mathias Rohe, M.A., University of Erlangen-Nürnberg, 17.03.2009

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