Openingstoespraak conferentie ‘Sharia incorporated: legal systems in het muslim world – recent developments’

Toespraak | 22-06-2010

Leiden University is a wonderful place to start a discussion about Islamic law. Right here, in this city, lies a rich history of academic study in Islamic law. This week’s conference on sharia law in the muslim world shows that this university has preserved much of this beauty at present, and we all hope there will also be a great future for the study of Islamic law in Leiden.

Historically, the academic study of Islamic law had an ambiguous relation with the practical need for knowledge of Islamic law. Dutch government over the Dutch East Indies, currently Indonesia, demanded civil servants with knowledge about Islamic law. This need for practical knowledge was on the one hand a source of concern for Leiden University, because the University refused to be just a center of practical training for civil servants, without meeting standards of academic education. On the other hand, the need for practical knowledge was an important factor in the incorporation of Islamic studies in the Netherlands.

The first publications on Islamic law date back as far as 1705, when Adrianus Reland published ‘De religione mohammedica’. Systematic study of Islamic law however really came to flourish in the second half of the nineteenth century, when the Royal Academy was founded in Delft, and with the rise of the Oriental studies in Leiden. The Royal Academy prepared Dutch civil servants for a stay in the Dutch East Indies, and included studies in Islamic law and the law of the natives.
Academics like Albert Meursinge and Salomo Keijzer became famous all across Europe with their hard work to disclose Shafi’ite Islamic law for the western world. A famous congress of orientalists was organised in Leiden in 1883.

The involvement with the training of East Indian civil servants lead to a steady stream of students. Practical dilemma’s in legislation and jurisdiction inspired academic publications. Meursinge stated that the goal of his compendium Islamic law was not only for educational matters in the Academy, but also as a guidance for judges, when confronted with disputes about Islamic law. Keijzer explicitly refers to the plans for the codification of criminal law in the Dutch East Indies in his book on Islamic criminal law.

After the decline of the Royal Academy, the University of Leiden became the centre of the study of Islamic culture and Law in the Netherlands. The University gained a monopoly on the education of civil servants for the Dutch East Indies. Eminent scholars like Snouck Hurgronje, who became world famous for his book about his stay in Mecca, attracted students from all over Europe.

After the independence of Indonesia and the end of Dutch rule in the Dutch East Indies in 1948, the academic study of Islamic law for some time seemed to have lost much of its attraction and relevance. The study of Islamic law declined. Developments in world politics and in Europe in the last decades have however led to a renewed interest in Islamic law. Meanwhile, muslim immigrants from non-western countries have come to live in Europe and in the Netherlands.

Regrettably, Islam as a religion injustly has been associated with terrorism, especially after ‘nine eleven’. Moreover, the compatibility of Islamic law and universal human rights has been questioned.

These developments have lead to a renewed political debate on the place of religion in society, and it has also lead to a new relevance and urgency to study Islamic law. In 2002, the Scientific Council for Government Policy (WRR), saw the need for research in Islamic law and society, and has put the subject on the agenda. In 2006, this resulted in the report Dynamics of Islamic activism. In 2009, the Leiden University Centre for the Study of Islam and Society, LUCIS, was founded. Today’s conference, Sharia incorporated, is one of the latest fruits of this remarkable rebirth of Islamic studies.

Let me first give some reflections on the content of the book Sharia incorporated: a comparative overview of the legal systems of twelve Muslim countries in past and present. After that, I will turn to the Dutch situation, and focus on state policies on Islam-related subjects.

Sharia incorporated

In many ways, this book is an extension of the Dutch study on sharia law in 12 muslim countries, done in 2006.

First of all, it shows the diversity of Islamic law in different countries. Sharia, as a living reality, is not of an unchangeable and static nature, but is in-corporated, literally: gained body, within a context of all kinds of geographic, demographic, historical and other social powers. We can distinguish between different kinds of incorporations of sharia law. Secular oriented legal systems, like in Turkey, have a main focus on secular law. Orthodox legal systems, like in Saudi-Arabia have a main focus on classical sharia law as it can be found in the Quran and the Sunna. Mixed legal systems, like in Morocco, have both elements of secular law as well as elements of sharia law in for instance family law.

The historical approach is well chosen. It shows the historical context in which sharia and other powers are in a continuing tension. There is a continuing struggle between traditional law and ‘pure Islamic law’. This was already subject of a fierce debate in the nineteenth century in the Netherlands with regard to Indonesia: was Indonesia a country with Islamic laws, or were the laws based on custom?

The book also shows the struggle for modernisation versus the interests of conservative groups and religious puritans. It discusses the need for economic reform and the need for reform from a human rights perspective versus traditional power structures. And although the book is not an overwiew of human rights violations, the authors do not shy away from the fact that there really are serious problems within the field of human rights in many of the described muslimcountries. Most of the human right treaties have been ratified by the governments of most muslimcountries. In practice, however, serious violations of human rights have been reported in studies and other reports of international organisations and NGO’s, especially with regard to the social position of women and political rights.

The Dutch approach: international issues

The government of the Netherlands has formulated several principles in policies on democracy and human rights with respect to Islam. In the field of international relations, an important principle is respect for universal human rights.

Universal human rights
Our government has always stressed the universality and the importance of human rights. Human rights, respect for human dignity, is a good in itself.

It is a central value of our society, and we see it as our task to promote human rights, human dignity, especially for those in a vulnerable social position. Sharia does not necessarily lead to a violation of human rights, but where it does, we cannot close our eyes.

The Dutch approach: national issues

One of the issues in the Parliament regarding sharia law was whether there were sharia courts active in the Netherlands. In 2004, the subject of Sharia courts in western countries got worldwide attention. In Ontario, Canada, an Islamic institute of Civil justice was prepared to offer arbitration. This became known as a ‘sharia court’ in Ontario, and became subject of a discussion about the acceptability of sharia norms in western societies. In 2009, a report from a civil rights organisation in the United Kingdom reached the headlines: Sharia Law or ‘One Law For All’? The conclusions of this report have been questioned, but nevertheless it was the start of a fierce debate in parliament, and led to empirical research on sharia courts in the Netherlands.

The results of this research were presented two months ago. The most important conclusion was that there are no indications for the existence of sharia courts in the Netherlands. There are no sharia courts in the Netherlands which have authority over muslims, living in the Netherlands. Also, the kind of questions with which muslims come to Imams are mostly of a religious nature. Disputes within the community are solved with mutual consent, and not with arbitration.

The report shows that sharia as a legal order does not play any significant role in Dutch society. Dutch muslims hardly associate sharia with legal norms. There is no parallel legal order, as was once feared.

Conclusion

I will come to a conclusion. Sharia law remains a controversial subject, both in international relations as well as in national politics in western countries. Much about the future of sharia remains uncertain.
Yet we have to set our course for the future today. In my opinion we have to avoid to get caught between scylla and charybdis.

The first mistake is to think that there is a necessary opposition between every part of sharia law and human rights, a necessary opposition of muslim world and western world, and necessarily a clash of civilizations between the two. The believe in a clash of civilizations is a potentially dangerous self-fulfilling prophecy, which will turn out to be true as long as there are enough believers to believe in it.

The second mistake to make is to take a too relativistic, sceptical approach and thereby closing our eyes to the violations of principles of our legal order, like the unequal treatment of men and women. A realistic analysis is necessary in order to understand the role of sharia in certain countries. But this understanding may not lead to an implicit approval of the status quo. We have to keep in mind that the ultimate justification of every legal order lies in respect for the human being. In a relativistic approach, when no values are worthwile at all, in the end anything goes. We would lose every moral ground to evaluate developments, and would no longer be able to distinguish between acceptable incorporations of sharia and unacceptable incorporations of sharia.

We have to look for a balance between these two extremes.
On the one hand, we must accept the fact that people want to live according to the rules of their own faith and conviction.
On the other hand, government has to promote that people integrate in society and are treated - and treat each other – according to the principles of a legal order based on human rights and the rule of law.

To maintain this balance is a permanent challenge for government, as well as for academic research. Given it’s relevance for today’s policies, independent research into the field of islamic law and society remains necessary. I have discussed some of the issues and controversies around the incorporation of sharia today, I am sure much more discussion will follow in more detail today and tomorrow. I sincerely hope this conference will contribute to a succesfull academic rebirth of the study of islamic law and society.