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Applying Shari῾a in the West Facts, Fears and the Future of Islamic Rules on Family Relations in the West Edited by Maurits S. Berger

APPLYING SHARI῾A IN THE WEST FACTS, FEARS AND THE FUTURE OF ISLAMIC RULES ON FAMILY RELATIONS IN THE WEST

How can we make sense of the new phenomenon of shari῾a in the West? In 2003, a respectable institution such as the European Court of Human Rights ruled that ‘sharia clearly diverges from [the Euro-pean] Convention [of Human Rights] values’.1

But equally respect-able authorities, such as the Archbishop of Canterbury and the Lord Chief Justice of England and Wales, argued in 2008 that shari῾a does not necessarily have to contradict Western legal and political values.2

Clearly, the presence of shari῾a in Western societies is of increasing concern among Europeans, North Americans and Australians.

Crucial questions remain unanswered, however: what is shari῾a, especially in a Western context, and what are these Western values it is diverging from, and why is that so?

Is shari῾a indeed applied in the West, and by whom? And if so, is shari῾a a static notion or does it adapt to Western values or structures?

A body of literature on the issue of shari῾a in the West is gradually emerging, focusing primarily on the ways private international law deals with shari῾a and on the compatibility (or lack of compatibility) between shari῾a and Western legal concepts.3

 This volume will contribute to this academic discussion by taking the practice of shari῾a by Muslims in the Western legal context as the basis for analysis. Two assumptions underlie this approach.

First, it is futile to study shari῾a in the West as an autonomous and holistic notion, because this overlooks the realities of its practice on the ground.

The fact is that while shari῾a as a concept of divine rules has developed over centuries of scholarship into an autonomous ‘Islamic’ legal system, the practice of this system has become fragmented in the Western context, and perhaps even distorted because it has had to accommodate the dominant Western legal system.

 Second, we can only understand the interaction between these two legal systems if the notion of a Western ‘legal system’ is seen in the much wider context of the social, political and cultural values upheld by Western societies.

These values, together with preconceived Western notions of shari῾a (the ‘fears’ mentioned in the subtitle of this volume) have an impact on the practice of shari῾a.