René de Groot René de Groot Sacha Ruland

Sharia council: same pitch, same rules

In Society
Written by  Hans van Vinkeveen Tuesday, 23 October 2012 14:31

The call for a sharia council in the Netherlands has met with much controversy. But if a religious community feels the need for this, what’s the problem?, wondered René de Groot, professor of Comparative Law and International Private Law. “The Netherlands has an exceptionally long tradition in the application of sharia law.”

De Groot is not familiar with the sharia sketch by the comedian Najib Amhali. In it, Amhali, disguised as an imam, is explaining to a group of children in broken Dutch what sharia means. “Today we talk about justice. What is sharia? Is Islamic law. Is firm but fair. You steal? Chop off hand! You steal again? Chop off other hand!”

With this, Amhali is mocking the radical and widespread misconception of sharia law. “Sharia represents an entire set of rules that, if followed, get you into heaven,” says the suit-clad De Groot. “You can explain this in a radical way or make a caricature of it, but in fact there’s no one definition sharia. There are many interpretations, just as there are many variations of the Christian moral code.” Some of its precepts indeed seem draconian, stemming from ancient sources including the Quran. “But the Bible is no different. And there are also attempts within the Islamic world to modernise sharia law.”

Hot topic

The call for a sharia council – an Islamic disputes committee to handle mainly family matters ¬– has recently been heard in the Netherlands. According to the professor, it’s not such a strange request. After all, religious communities need institutes to monitor the established rules, and just think of the many Jewish, Protestant and Catholic courts around the world. It’s not the last time that De Groot makes comparisons with other religions. “The wording may not be ideal in this context, but it does apply: same pitch, same rules. A lawyer can’t treat Islamic communities differently to any other religious group.” In short, church councils have his blessing – but with two important restrictions. First, they must exclusively focus on church affairs, and second, they must not be granted powers that infringe on the jurisdiction of a Dutch court. “The separation of church and state means that people have to be able to settle all their disputes in a court of law.”

The unequal treatment of women in Islam is a “hot topic”, De Groot concedes. But in principle, he says, a government should never interfere with a religious community unless public order is at stake. “In that case we’d have to intervene in the Catholic Church too, because women can’t become priests or bishops. And I don’t see that happening.” If Muslims want to file for divorce under Islamic law, this is a personal choice, just as it is for Catholics. “The crucial point here is that they’re already divorced under Dutch law. The step towards a religious divorce is an extra one, which prevents them from remaining trapped in a religious marriage.”

Legal pluralism

“Look,” De Groot continues, “we can rage against it and insist that Islam is backwards, but (a) there are still provisions in Dutch law that discriminate against women, and (b) keep in mind that the Netherlands has taken the step of ratifying the international treaty prohibiting discrimination against women.” In other words: give the Islamic world a chance to reform some of these ancient sharia laws. “You see that Muslim states are increasingly taking the woman’s position in society into account, for example by letting them pass their nationality on to their children. It’s not all that backwards.”

Another argument against the establishment of a sharia council is that it brings foreign (read: Islamic) law into play. But this has been happening for some time now, though the average citizen remains blissfully unaware of it. For instance, in highly specific cases, Dutch courts will recognise polygamous marriage. “The Netherlands has a long tradition in the study of sharia law; in fact, it was an integral part of the training to become a colonial officer in Indonesia.” The application of foreign law should indeed be used sparingly, De Groot points out, to avoid legal pluralism (the coexistence of multiple legal systems). “That’s not a good idea in a secularised society like the Netherlands. As a Catholic, you don’t want to be forced by the state to present your case to a church court. But we’ve always had a touch of legal pluralism. For example, a court recently awarded equal bereavement benefits to two widows following the accidental death of a Muslim man, thus recognising the Islamic right to polygamy.”

Hypocrisy

Ultimately, these issues all boil down to one question: how tolerant is a country of a foreign culture? “When I say ‘tolerance’, I mean tolerance in an appropriate way. If you’re utterly horrified by a foreign legal system, then the blind application of it would of course be unacceptable. Our legal system provides the boundaries, but you don’t want to go calling on it at the drop of a hat.” Again, for De Groot it’s all about attitude. “You can’t apply arguments to Islam that you don’t apply to your own religious community. This is an area plagued by hypocrisy, and that’s what I’d like to get rid of.”

 

René de Groot (1951) is professor of Comparative Law and International Private Law at the Faculty of Law. This year marks his 30th anniversary at UM. An internationally renowned expert in the field of nationality law, De Groot helped to found the Association for the Study of Islamic Law and Middle Eastern Law (RIMO) in 1982. Thanks to his many contributions, he has been appointed as an expert on the Nationality Law Committee by the Council of Europe.

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