The Current Debate on Islam
Muslims have been present in Europe since the early Middle Ages. A widespread fruitful exchange between Muslims, Jews and Christians has contributed to scientific, economic and cultural progress on this continent. Nevertheless, in many cases and over centuries encounters between European Christian and Muslim realms and societies were overshadowed by hostility and warfare. The Muslim conquest of European territory as well as the re-conquest and the colonial expansion of Europe created fear and an antagonistic perception of the respective ‘other’. In Almoravid or Almohad Spain, non-Muslims came under heavy pressure After the Reconquista, Muslims (and Jews) were even expelled, killed or forcibly converted to Christianity. ‘The Turc’ then became the ‘Anti-Christ’ in the public mind, despite an ongoing political game involving the Ottoman Emperor on the European political stage.
Thus, both the existence of Muslim individuals and minority groups under European Christian rule and the existence of non-Muslims under Muslim rule were perceived as an exceptional case at best. Individuals were usually welcome for purposes of trade and related issues. Under certain circumstances minority groups living constantly under ‘foreign’ rule enjoyed physical security and were granted a sometimes remarkable set of rights, but were still far from being treated equally with respect to the majority. In consequence, religious and legal treatises of the time did not recommend those minorities permanently to stay under this foreign rule and anxiously advised them not to lose their faith in a structurally hostile environment.1
In our own days the situation has changed fundamentally. Former enemies have joined the United Nations. In Europe and America, millions of Muslims are living in secular democratic states by their own choice, contributing to the societies they are living in and forming a new part of European and American identity. Western secular legal orders grant them religious freedom and equal rights. Nevertheless, certain challenges for both Muslims and the European legal orders should not be overlooked. Certainly, freedom of religion and equality before the law prevent legislation and administration from having any religious bias. Nevertheless, current legal institutions were developed in a concrete historical and social framework, Christianity playing a major if not crucial role in this regard. The legal integration of Islam, being much less institutionalized than Christianity or Judaism, has become a challenge for Western legal orders, which have to find ways of granting the full range of rights to Muslim individuals and groups by re-reading the existing rules, without affecting their validity. Certain differences concerning the range of such rights between Western states are evident. The widespread presence of a religion which is still perceived to be ‘foreign’ by the public at large might turn out to be a crucial litmus test for Western law and its daily practice. Chapter 29, by Andrea Pin, develops different models of shaping Islam–state relations, taking Bulgaria, Belgium, France, Spain, EU-initiatives and the United States as a basis for his comparative approach. While he attributes an underlying approach of reformulating a social contract to the European models, the United States is described as stimulating the dynamics between religion by cultivating the connections between religious affiliations and common life.
In defining the legal status of Muslims in Western countries, we have to differentiate between religious and legal concerns. The former are regulated by the European and national constitutional provisions including article 9 of the European Convention on Human Rights (ECHR), which grants freedom of religion. The scope of these laws is not limited to private worship but also grants an adequate (but not an unlimited) protection of religious needs in various aspects of public law from building mosques to social-security issues.2 Nevertheless, Western countries vary in their applications of these provisions due to differing interpretations regarding the desirable degree of distance between the state and religion.3
Freedom of religion according to Western constitutional orders includes far-reaching individual and collective rights. First, adherents of all religions must be able to enjoy their individual and collective religious rights equally,4 including religious practice in public spaces. This is granted by the European Convention on Human Rights as well as by national constitutional provisions. Therefore, no religion can be considered to be ‘foreign’ or ‘alien’ or ‘domestic’ respectively from a legal point of view (which is not necessarily very popular in various Western countries). The second formal level on which freedom of religion is granted is related to constitutional guarantees of freedom of religion that may have an impact on relations governed by civil law, specifically (but not exclusively) employment law. In this field, possibly conflicting interests of employers and employees have to be weighed with respect to the employee’s religious needs on one hand and the employer’s needs on the other.5 Finally, religion can be simply practised on an informal level. It is mainly in this sphere of religious rules in everyday life that a European or Western Shari’a (in this context: Islamic ‘theology’) is possibly developing.6