The legal situation of the Muslims in Europe

INTRODUCTION
Talk given at the Symposium "ISLAM AND SECULARISM" at the Mosque of Granada on January 29, 2004 to a gathering of anthropologists, academics and social workers of the European program Worship and Social Cohesion, besides a number of personalities from the Municipality of Granada, political parties, labor unions, and the Muslim community.

A. Point of Departure

A dramatic change of climate has certainly taken place regarding the presence of 16 million Muslims in Europe. It is precisely this general political climate in Europe which is of such great significance for the future legal situation of the Muslims.

Without a positive climate with respect to Islam and the Muslims, inner political conflicts and discrimination will threaten one of the largest minorities of Europe. The dangers in this are obvious.

It is beyond doubt that after the collapse of communism Islam has come to the fore in the external and inner political debate. Basically these debates revolve around the question as to whether Islam poses a threat to western society. As a result this new dialectic against Islam could produce not only alarming new friend-foe relations but also prevent other debates which are just as important.

The question, for example, as to whether western democracies are more severely endangered and undermined by modern capitalism has today been relegated to the background (one only has to think of the concentration of the media, the crisis of parliamentarianism etc). One cannot simply merely define Europe as democratic or sympathetic to women simply because islamism – to which one is opposed - is “antidemocratic” and “misogynistic”.

The debate about islamism should not replace or repress the debate about the relationship of today’s democracy to global capitalism – a debate which must be accorded equal weight and importance.

At the same time Muslims and non-Muslims are concerned that the global war against terrorism could undermine little by little the former European civil rights; or as defined by the Italian philosopher Agamben - that the war against terrorism could lead to a “permanent state of emergency”. Unfortunately the establishment of camps (here the keyword is Guantanamo) whose inmates have no legal status is today part of a new and threatening form of political sovereignty of an absolute nature. From a Muslim point of view, this phenomenon corresponds to Dostojewski’s gloomy prophecy that “in a world without God no laws would hold good”.

How do things stand then regarding Islam in Europe?

Nowadays in Europe two debates in particular – which one could cite as typical – are being fiercely discussed. On the one hand, the debate about Turkey, that is the question as to whether Turkey may enter the European Union - in other words, that it is not, as the Turkish prime minister formulated, a “christian club”; on the other hand, the question as to whether the Islamic headscarf can be integrated into the index of European values. In the course of both debates western ideas about Turkey and the Islamic scarf come to be associated with political Islam and its ideological form: islamism. The danger of the dialectic against Islam is revealed here – thus, for example, the slogan “Europe against Islam” contributes for the European conservatives to a renaissance of the western-conservative fund of ideas. One must be careful that the exclusion of Islam from Europe does not become the new political-intellectual identity of Europe. Will there also be a mosque in the house of Europe?

At the same time one must recognize that the permanent presence of Muslims in Europe - despite persecution and civil war - is still, and has long been, a historical reality. It is important for us European Muslims to understand this presence of Islam in Europe in a positive way and to safeguard its legal status.

Without doubt we Muslims in Europe are still inadequately prepared for this debate - both with regard to content and organization. The reasons for this are the following:

1. the Muslim organisations have been representative for too long of guest workers rather than of European citizens. The national orientation of these organisations thus antiquated.

2. politically speaking Islam is still dominated by imported, i.e. non-European, ideological arguments. (see France, for example)

3. the role of the European Muslims is still predominantly marginal.
As the climate surrounding Islam in Europe is of crucial importance to the legal situation of the Muslims, let me briefly define in a positive manner a few basic criteria for a future Islam in Europe. I believe that if we Muslims take these important points seriously, then we should be able to prevent ourselves from being pushed aside - either into esotericism or extremism.

B. here 6 basic points for the identity of European Muslims:

1. Islam is not a culture, and the thesis of Huntington – look for example at this mosque in Europe – is clearly false.

2. The segment of the population known as “European Muslims” cannot be defined racially but rather must be characterized by linguistic capacity (i.e. Muslims originally from the Balkans, Europeans who have accepted Islam as well as the Muslims of the third generation). This is crucial for a future non-racial definition of the “European”.

3. European Muslims are not characterized by ressentiment but rather by an indigenous, historical sphere of experience. One has only to think of Sarajevo, Weimar und Granada; of Sebrenica, Goethe und Andalusia.

4. European Muslims also have a concrete, economic and social contribution to make: the imaret. The imaret could contribute to the cultural regeneration of Europe.

5. European Muslims have a contribution to the debate, a contribution based on revelation – namely, the question as to how the economy may be limited or contained by means of the prohibition of usury. Future intellectual debates regarding the consequences of usury will be conducted in this light.

6. Islam has a fascinating connection to European philosophy – whose historical course one could define as characterized by the coming to terms with, and the search for, unity.

Let us first enquire further as to the actual, legal situation of the Muslims in Europe. I would like to highlight this issue, taking Germany as an example.

C. The legal situation of Islam in Europe.

The public debate about Islam has become more and more intense in Germany.
Of course the Muslims still profit as before from the exemplary social institutions and various constitutional warranties. However, concern is also growing here as to how people will interact with the Muslims in the Federal Republic of Germany in the future.

For several reasons the general situation of the Muslims has not become any less complicated. Germany is quite typical of the situation of Islam in Europe:

- The umbrella organisations of the Muslims have not been fully recognised as dialogue partners by the Government. No dialogue is at present in process with the Muslims - with a view to placing them on an equal footing with the Christians and Jews in the Federal Republic. This is because a suitable dialogue partner is lacking - in the eyes of the government.

- There is hardly any positive awareness of the Muslims in the German public arena. There is not only a lack of public relations but also no suitable lobby on their behalf in Berlin. As a result, fear and anxiety concerning Islam as a religion continue to grow amongst the population.

- Under the blurred catchword “islamism” and “Islamists”, terrorists, criminals and fanatics are subsumed together with normal, committed Muslims and representatives of Islam in the German public domain. For this reason more and more Muslims hesitate to take part in public activities.

- Subjective reporting with an openly negative tone predominate in the German media. Muslims are not represented in the important control-bodies which govern the television stations subject to public law.

Let us briefly go into the Islamic scarf debate in Germany. In doing so we are of course aware that for Muslim women there are certainly also more important things than the famous headscarf. However, the current debate about the Islamic headscarf can be taken as proof of the further aggravation of the climate.

The German lady teacher Fereshta Ludin attempted through legal action to become a state employed teacher. The State Government in Stuttgart, however, refused to give her a post citing the scarf as grounds for their refusal. The highest German court - the federal constitutional court – conceded that this female Muslim was fully in her rights and declared unequivocally that her rights had been violated. However, the court also pointed out to the States of the Federal Republic that they were free to pass new laws forbidding the scarf, as long as they were not of a discriminatory nature. Various Federal States – in particular Bavaria and Baden-Wuerttemberg - immediately presented the necessary bills. However, these were openly discriminatory.

Contrary to the requirements of the court, Jewish and Christian symbols were expressly excluded. The legal expert in the realm of constitution, media and education, Prof. Dr. Ernst Gottfried Mahrenholz, commented in the following manner: Mahrenholz challenged the matter by writing “that the Federal Constitutional Court has pointed out that ‘members of different religious communities’ must be ‘treated equally’.

Then he writes: “However, the State Government has not thought the formulation (of its bill) out properly. It does not really fit into the whole concept. Furthermore the bill does not employ the concept of ‘applicability or appropriateness’ correctly. What is being referred to in basic constitutional law by ‘applicability or appropriateness’ is ‘a highly personal concept’. It is not permitted to apply interpretations across the board. This, however, is exactly what is being done by the law. This suspicion - leveled at a specific group of people but without any justification - which has become enshrined in the law amounts to a political discrimination of this group for which I see no parallel in German legislation.”

Conclusion: despite the above-mentioned remark that for Muslim women the Islamic head scarf is not of central importance, the debate nevertheless may serve as an example for Europe. It is a question of the future nature of the state. In Germany the debate about the Islamic headscarf is becoming a question as to whether Germany – as in France – can be redefined as a secular state.

This would have consequences for Europe in the future. In the middle term, there is a fear that Germany will further politicize its stance towards Muslims - leading to an erosion of civil rights.

D. Outlook

From a Muslim point of view, one is deeply concerned that the European debate about Islam should not be further ideologised. A new friend-foe front line should not be created at the expense of European Muslims. In the end, we Muslims not only want to live in peaceful coexistence but we also do not want Islam in Europe to be forced out of the public and social life.

Of particular importance therefore for us - and from an Islamic point of view - that we can live our Islam in Europe. It would be a sad state of affairs if - in public opinion - a Muslim were only truly a European or “liberal” Muslim when he prays just once or when he behaves in an incorrect way, Islamically speaking. The five pillars of Islam cannot be practiced in a European way but rather only – in a legal sense – a correct way. As European Muslims, what we want is nothing less than to practice an Islam which is based on correct foundations - without losing any influence in the umma.

It is important therefore to define a legal framework in which Muslim society can exist and practice. It is especially important therefore to give a legal formulation to - and safeguard - the following four requirements:

- Zakat and Salat – the Muslim community is based on the establishment of the prayer and on internal and, to the greatest possible extent, autonomous self-administration of its affairs.

- The legal and architectural implementation of the mosque as imaret – that is the establishment of this public and integrated architectural concept with a view to making a positive, social contribution to European society.

- The strengthening of the auqaf form of social organisation - which is opposed to centralistic or ideological thinking and which guarantees the political and financial independence of the Muslims.

- The ensuring of an independent Islamic teaching without any state patronage.
I believe that it is these issues too which will occupy us in the future in Europe. Granada is conceivably a favourable place for this debate. Of course legal terminology like “human rights” and the “imperative of tolerance” was foreign to Muslims in Andalusia, but the right of the minorities and the day to day interchange between different groups was not only de facto ensured but was also something which was absolutely normal, existentially speaking.