Recent events in Europe, from the cartoon crisis in Denmark to the controversy over the construction of minarets in Switzerland, have brought the status of Islam in the secular public sphere to the forefront of European political debates. The consequences of these debates can be seen in a hardening of the boundary between what is public and what is private, as many assume that religion generally belongs to the private sphere. Collective views in Europe have come to dictate that any claim or expression in public space deriving from religious beliefs be seen as illegitimate. As Jürgen Habermas has noted, the liberal vision of a secular public sphere imposes a special burden on the shoulders of religious citizens. Many believers, however, would not be able to undertake such an artificial division in their own minds between their religious beliefs and their civic commitments without destabilizing their existence as pious persons.
According to many liberal theories, expressions of religious citizens are acceptable in the public sphere so long as they do not influence formal law-making and are expressed in an appropriate public venue. But the political reality is actually more complex and reveals a narrowing or even complete disappearance of public spaces in which religious expression is possible. Talal Asad explains this contradiction by engaging in a Foucauldian deconstruction of public space. Asad’s approach to secularism is particularly helpful for explaining the current debate on Islam in Europe, though it nonetheless requires some additional nuance and further contextualization.
Unlike the liberal theoreticians John Rawls and Charles Taylor, Asad does not see the secular public sphere as a neutral, shared space composed of different voices that accept and abide by the same principles or ethics of citizenship. Instead, he defines the private/public divide as embedded in a heterogeneous landscape of power. From the beginning, in Asad’s view, the “liberal public sphere” has excluded certain kinds of people: women throughout the nineteenth and twentieth centuries, the poor classes, immigrants, religious groups, and others.
In the same vein, Dominique Colas analyzes the fight between Iconoclasts and the Catholic Church in the sixteenth century and observes elements relevant to the concerns raised by Asad: the power of the state is employed to violently crush movements that refused to accept the limitations placed upon their religious claims in the broader public realm. Colas clearly illustrates that the concept of tolerance in the “civil society” of the sixteenth century was not a neutral force. Those who refused to accept the limitations for social behavior and expression were labeled “fanatics” and harshly punished. “Fanaticism,” as defined by Colas, is precisely this refusal to accept the duality of the public and private realms of the social order.
The tension between civil authority and the particular cultural and religious norms of minority communities is the crucial issue in the debate over the definition of “secularism.” In twenty-first century Europe, it is important to understand the public sphere as, not only a disembodied voice, but also a product of the media as well as state-mediated discourses. During the cartoon crisis, for example, alongside Muslims protesting expressly against blasphemy, several made use of secular arguments that could, in principle, have been received in the public sphere, but were rejected because of the asymmetrical balance of power between European establishments and the growing—and increasingly assertive—Muslim minority. Some, for example, utilized arguments similar to those concerning the prevention of hate speech (as it is guaranteed by most European states), holocaust denial, and incitement to violence. Regardless, unconsidered perceptions of Muslims based on a stigma of extremism often prevent rational consideration of expressions that are legitimate within European legal systems.
In the same vein, the rallying of European Muslims who wanted to ban The Satanic Verses and murder its author, Salman Rushdie, has been seen by some prominent advocates of minority rights as an important example of a religious and cultural minority attempting to introduce restrictions that are unacceptable, given that they undermine individual autonomy. Charles Taylor, for instance, considered the demand that The Satanic Verses be banned to be illegitimate. Michael Walzer, well known for his relativist approach to values, took a hard-line liberal position to defend Rushdie against his detractors, arguing that immigrants, by their very choice of immigrating to Europe, have chosen to adopt the tenets of Western liberalism and should therefore conform to them.
On the other hand, many of those in Europe who champion multiculturalism, such as Tariq Modood and Bhikku Parekh, have criticized such positions, explaining that it is a mistake to see the fight against apostasy as British Muslims’ key motivation. Instead, they explain the protests of Muslim leaders as evidence simply of their desire to include Islam under the British Blasphemy Law that, before its repeal in 2008, was strictly limited to Anglicanism. These examples of the divergent ways in which Muslims make claims on and in the secular public sphere highlight the limits of the “overlapping consensus” view and suggest an imbalanced relationship of power between a specific religious group and the representatives of civil authority.
An important question raised by the Muslim presence in Europe is how the protection of specific subcultures can promote, rather than stifle, individual emancipation. Will Kymlicka offers one possible way to reconcile the two conflicting demands: “If we simplify to an extreme, we can state that minority rights are compatible with cultural liberalism when a) individual freedom is protected within the group, and b) they promote equality, and not domination, between groups within the different European societies.” Sometimes, however, Islamic groups collectively appeal for rights that would, in effect, limit individual freedom. The Rushdie Affair and the call to ban The Satanic Verses are illustrative of such dilemmas.
A different—and contradictory—example of the tension between civic order and the Islamic community, on which the rest of this article will focus, concerns the recognition of Islamic Law within existing legal systems. In order to bring nuance to Asad’s interpretation of secular space as simply a hegemonic regime, the examples that follow will show that representatives of civil authority do, in fact, try to foster equality and tolerance among European citizens of different cultures.
Contrary to the widespread belief that Muslims in the West seek the inclusion of shari’a statutes in the constitutions of European countries, most surveys show that Muslims are quite satisfied with the secular nature of European societies. When Muslims agitate for change, they engage in the democratic process, utilizing mainstream parties and institutions. At the same time, their acceptance of secular practices does not mean that they renounce the use of Islamic principles and legal rules to guide or structure their daily lives. In a study funded by the Sixth European Union Framework Programme, which convened 50 focus groups of Muslims in London, Paris, Berlin, and Amsterdam, I clearly observed this tendency: for example, many Muslims expressed a strong attachment to religious, rather than civil, marriage and divorce.
We examined the literature and jurisprudence of several key European countries in order to ascertain the arguments used by the courts and by Muslims respectively when conflicts arise. The plethora of national laws in Europe and the diversity among Muslim groups makes comparison difficult, but we found a general trend of European countries recognizing foreign civil law. In countries like France, Belgium, Italy, and Spain, the law distinguishes between national and foreign jurisprudence, allowing residents to act in accordance with their own national laws. In these cases, the country of residence may apply a discriminatory foreign law. For Muslims, Islamic laws on marriage, divorce, and custody may differ according to their school of thought (Hanafi, Shafi‘i, Maliki, Hanbali, etc.) or country of origin (Pakistan, Algeria, Morocco, etc.). Furthermore, in some countries—like Tunisia, Turkey, and Morocco—the family law has been secularized and respects, in theory, the principle of equality between men and women. However, these reforms do not always prevent the continuance of customs that can be discriminatory toward women and that can often be presented as “Islamic.” One example is the recent divorce case of a Moroccan couple, brought before the French courts, in which the husband appealed for divorce on the grounds that his wife was not a virgin at the time of their marriage.
Similarly, participants in the focus groups highlighted the difficulty they faced in trying to express their indignation during the Danish cartoon affair. They were bothered less by the representation of the Prophet Muhammad itself than by the fact that he was depicted as the quintessential figure of violence. The participants felt that their disapproval of the cartoon was interpreted by their fellow citizens as unpatriotic, while they themselves did not consider such opinions to be incompatible with their European citizenship. The same discrepancy emerged in some groups with regard to issues of dress code and, specifically, the hijab, the wearing of which is considered unpatriotic in some European places, while it obviously has a very different meaning for many Muslim women. We see a further manifestation of this issue in the recent case of a fully veiled Moroccan woman who was denied French citizenship in 2008 on the grounds that wearing the niqab was incompatible with French values. And the same suspicion of anti-civicism or anti-patriotism can be discerned in the debate on the construction of minarets in Switzerland.
When we turn to the shari’a debate, Kymlicka’s two conditions come under intense scrutiny. Our research corroborates the Gallup polls’ findings showing the acceptance of secular orders by the majority of Muslims in Europe. In fact, not one of the focus group participants expressly rejected European secular principles. Nevertheless, such acceptance does not preclude tension between, for instance, Islamic practices of marriage, divorce, and child custody and the principle of individual freedom under secular civil law. In legal practice, the question of whether to take Muslim family law into account in the regulation of daily life is bound to the condition that these laws meet the criteria prescribed by human rights and fundamental liberties. Therefore, due to inequality between men and women, acknowledgment of Family Law codes imported from some Muslim countries appears as a hindrance to the process of integrating Muslims, to the point that some compare the situation to a conflict of civilizations. There do exist fringes of the Muslim population across Europe that reject the paradigm of secular civil law and act violently in ways that strongly prejudice Europeans’ perceptions of Islam and Muslims. However, the silent majority of European Muslims already accept Islam’s compatibility with the basic precepts of human rights.
The second condition advanced by Kymlicka, promoting the equality of cultures, is also problematic, since Islam as a religion and culture is still perceived as alien to Europe. Promoting equality between cultures involves redefining public culture and the status of Islam within the public space at the level of both nation-states and the European Union. However, some claims on behalf of Islamic culture in fact champion the European conception of human rights, by arguing, for example, that laws banning religious symbols from French public schools are contradictory to the European notion of fundamental rights.
Because of these complex circumstances, we find different and sometimes contradictory attitudes among Muslims toward European secular laws. As mentioned previously, complete rejection of secular law is rare; more commonly, objections are targeted specifically at elements of French secularism. But complete acceptance of European civil law is also rare. Among focus group participants, a preference for Islamic prescriptions for family organization was clearly expressed, especially in the European context. However, the extent to which these prescriptions are taken to heart varies greatly according to gender, age, and education. For example, educated Muslim women tend to adopt a more individualized attitude toward family law, requesting greater equality between men and women. On the other hand, less educated men tend to remain closer to some cultural traditions inherited from their countries of origin.
In short, the majority of European Muslims acknowledge the compatibility of Islam with the basic tenets of human rights, although there are still parts of the Muslim population in Europe who reject this paradigm. For example, a group called Islam4UK, which emerged in autumn 2009 in Great Britain, demands the enforcement of shari’a. It is also significant that Islamic parties have recently emerged on the political scene in Germany and the Netherlands.
Surprisingly, this reconciliation between Islamic principles and secular regimes has often been conducted in an indirect way through decisions by European judges rather than Islamic legal experts or Muslim theologians. Consequently, a slow and “invisible” form of personal Islamic law is being constructed and adapted to Western secular laws. Of course, European judges do not claim Islamic authority, but the fact that Muslim theologians do not contest their decisions, and sometimes even endorse them, illustrates the law’s adaptation. The contours of this evolution remain to be defined, depending on the country and the Islamic group concerned.
These results, derived from survey research of European Muslims, clearly demonstrate the core deficiency of Asad’s view of secularism: it fails to adequately recognize the complexities of political interactions that occur between disparate stakeholder communities. Craig Brittain correctly states, “It is one thing to argue for the legitimacy of religious adherents to publicly voice their particular worldviews; it is quite another matter to suggest that such voices be granted equal argumentative weight, without mediation, in public debate.”
SECULARISM AS A TRAGIC CATEGORY
Interestingly, Talal Asad has perceived the tragic character of secularism, especially in his interpretation of Benjamin’s Ursprung des deutschen Trauerspiels. Incidentally, it may contradict his tendency to reject the category of secularism as an instrument of power and domination: “This world is ‘secular’ not because scientific knowledge has replaced religious belief (that is, because the ‘real’ has at last become apparent) but because, on the contrary, it must be lived in uncertainty, without fixed moorings even for the believer, a world in which the real and the imaginary mirror each other. In this world, the politics of certainty is clearly impossible.”
Such a perception of secularism can help religious theorists address Asad’s principal concern that the concept functions with an overly Westernized bias against non-Western religions. It echoes at the level of what Charles Taylor calls “the third meaning” of secularism, namely, the fact that believers exist in a world in which their beliefs are continuously challenged by other values. The challenge of being able to believe without feeling threatened by others’ beliefs came across very strongly in the focus groups when participants were asked about relationships with non-Muslims and tolerance vis-à-vis apostasy. No real consensus emerged on these issues, but the discussion highlighted a clear divide between the perception of the virtuous Muslim as one who values the moral commitment of the Ummah above all others versus one who lives according to Muslim principles but maintains a certain sense of relativism. This question forms the core of a book by Chief Rabbi of England Jonathan Sacks that led to an intense and controversial debate in the UK six years ago, and represents the most salient challenge to the status of Muslims in Europe or the United States: how can one maintain one’s sense of the Islamic truth and simultaneously acknowledge the truth of others?