The European Court of Human Rights (ECHR), in a trilogy of cases involving Muslim claimants, has granted state parties to the European Convention on Human Rights a wide margin of appreciation with respect to the regulation of public manifestations of Islam. The ECHR has justified its decisions in these cases on the grounds that Islamic symbols, such as the ḥijāb, or Muslim commitments to the shari‘a — Islamic law — are inconsistent with the democratic order of Europe. This article raises the question of what kinds of commitments to gender equality and democratic decision-making are sufficient for a democratic order, and whether modernist Islamic teachings manifest a satisfactory normative commitment in this regard. It uses the arguments of two modern Muslim reformist scholars — Yūsuf al-Qaraḍāwī and ‘Abd al-Ḥalīm Abū Shuqqa — as evidence to argue that if the relevant degree of commitment to gender equality is understood from the perspective of political rather than comprehensive liberalism, doctrines such as those elaborated by these two religious scholars evidence sufficient commitment to the value of political equality between men and women. This makes less plausible the ECHR's arguments justifying a different treatment of Muslims on account of alleged Islamic commitments to gender hierarchy. It also argues that in light of Muslim modernist conceptions of the shari‘a, there is no normative justification to conclude that faithfulness to the shari‘a entails a categorical rejection of democracy as the ECHR suggested.
1. See, for example, “Across Europe, Worries on Islam Spread to Center.” http://www.nytimes.com/2006/10/11/world/europe/11muslims.html?_r=1&scp=1&sq=&st=nyt (Accessed on March 12, 2010).
2. France completed a parliamentary inquiry into the niqāb, and despite finding that less than 2,000 women in France wore it out of a total population of 65,000,000, recommended that women wearing it be fined almost $1,000 and be barred from public facilities. See “France Recommends Ban on Veil.” http://english.aljazeera.net/news/europe/2010/01/201012661032640718.html (Accessed on March 10, 2010). Despite the exceedingly small numbers of women in France that wear the niqāb, the French Parliament chose to ban it. See “First Fines Over Wearing Full Veils in France,” Maia de la Baume and J. David Goodman, September 22, 2011. http://thelede.blogs.nytimes.com/2011/09/22/first-fines-over-wearing-full-veils-in-france/?scp=19&sq=french++veil+ban&st=nyt (Accessed on January 2, 2012).
3. Fournier, Pascale, and Yurdakul, Gökçe. 2010. “Unveiling Distribution: Muslim Women With Headscarves in France and Germany” In Staatsbürgerschaft, Migration und Minderheiten: Inklusion und Ausgrenzungsstrategien im Vergleich, eds. Yurdakul, Gökce, and Bodemann, Michal. [Citizenship, Migration and Minorities: Inclusion and Exclusion Strategies in Comparison]Wiesbaden, Germany: VS Verlag, 169. For a more extensive treatment of the controversy in France surrounding the Islamic head scarf, see Bowen, John R. 2007. Why the French Don't Like Headscarves: Islam, the State and Public Space. Princeton, NJ: Princeton University Press.
4. Fournier and Gökçe, 172.
5. For example, when a young Danish Muslim woman appeared on public television in Denmark wearing an Islamic headscarf as a host of a program intended to explore religious and cultural differences in Denmark, many Danes protested her inclusion, with some feminists asserting that the Islamic head scarf was an insult to women, and for that reason, she should be dismissed. See “TV Host's Headscarf Stirs Debate, April 13, 2006.” http://www.spiegel.de/international//0,1518,411287,00.html (Accessed on January 2, 2012).
6. McCrea, Ronan. 2007. “Limitations on Religion in a Liberal Democratic Polity: Christianity and Islam in the Public Order of the European Union.” http://ssrn.com/abstract=1033332 (Accessed on February 4, 2010) (noting the common view in Europe that Islam, unlike Christianity, for example, represents a threat to both the autonomy of the public sphere and the private autonomy of citizens because, among other things, normative Islam does not distinguish between law and morality).
7. Id, 33–38 (describing various tests proposed to be applied to immigrants from predominantly Muslim countries).
8. See “France Denies Citizenship to Man with Veiled Wife.” Jenny Barchfield, February 4, 2010. http://www.salon.com/2010/02/04/eu_france_muslim_veil/singleton/ (Accessed on January 2, 2012).
9. See “The Young French Women Fighting to Defend the Full Face Veil.” Lizzy Davies, January 31, 2010. http://www.guardian.co.uk/world/2010/jan/31/french-muslim-burqa-veil-niqab (Accessed on January 2, 2012). In the case of Faiza A, the French Conseil D'Etat upheld the denial of her application for French citizenship on the stated grounds of a failure to assimilate. Although the applicant had acquired mastery of the French language, the Conseil found that “she has nonetheless adopted a radical practice of her religion, incompatible with the essential values of the French community, and notably with the principle of equality of the sexes; that thus, she does not fulfill the requirement of assimilation enunciated by the above-cited article 21-4 of the Civil Code; that, consequently, the government could legally rely on this reason to oppose Ms. A's acquisition of French citizenship by marriage.” CE, 27 June 2008, Faiza A (2008) Rec 286798 (original translation from the French). http://arianeinternet.conseil-etat.fr/arianeinternet/ViewRoot.asp?View=Html&DMode=Html&PushDirectUrl=1&Item=1&fond=DCE&Page=1&querytype=advanced&NbEltPerPages=5&Pluriels=True&dec_id_t=286798 (Accessed on December 13, 2010). The French government defended denial of her application for citizenship on the grounds that “it appears that Ms. M. has not made the values of the Republic her own, in particular the equality of the sexes. She lives in total submission to the men in her family, which submission manifests itself as much in her clothing as in the organization of her daily life.” (Original translation from the French.) Evidence of her total “submission” was, in addition to her clothing, the fact that she did not receive guests in her home; that she divided her time between cleaning the home, taking walks with her small children, and visiting her father and father-in-law; and the fact that she usually shopped only in the company of her husband. CE, 27 June 2008, Faiza A (2008) Rec 286798 (Submission of the Commissaire de Gouvernement).
10. Dahlab v. Switzerland, app. no. 42393/98 (February 15, 2001); Layla Şahin v. Turkey, no. 44774/98 (November 10, 2005).
11. Refah Partisi (The Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98, and 41344/98, ECHR 2003-II — (13.2.03) (February 13, 2003).
12. Dahlab, 13.
14. Shahin, par. 115 (suggesting that headscarf-wearing Muslim women might intimidate their non-headscarf wearing Muslim women colleagues because the Islamic headscarf is presented as a “compulsory religious duty”).
15. Refah, par. 123.
16. McCrea, supra n. 6, 436–440.
17. Finnis, John. 2010. “Endorsing Discrimination between Faiths: A Case of Extreme Speech?” http://www.ssrn.com/abstract=1101522.
18. Finnis, 6.
19. Judge Kovler, in his concurrence in Refah, criticized the Court for its sweeping remarks about the shari‘a. Academic criticism of Refah has likewise focused on its reductive approach to the shari‘a. See, for example, Boyle, Kevin. 2004. “Human Rights, Religion and Democracy: The Refah Party Case.” Essex Human Rights Review 1:1–16; Ann Mayer. Forthcoming. “The Dubious Foundations of the Refah Decision.” In Islam in Europe: Emerging Legal Issues — Critical Views, eds. Torfs, Rik, Cole Durham, Christine Scott, and David Kirkham; and Moe, Christian. Forthcoming. “Refah Revisited: Strasbourg's Construction of Islam.” In Islam in Europe: Emerging Legal Issues — Critical Views, eds. Torfs, Rik, Cole Durham, Christine Scott, and David Kirkham.
20. Indeed, Boyle writes that “[t]he Refah case can be read to suggest that peaceful advocacy of the tenets of Islam is unprotected under the European convention.” Boyle, 12.
21. Id., 9–12 (discussing the applicability of the concept of “militant democracy” in the context of Refah).
22. For these reasons, John Rawls argued in A Theory of Justice that as a general matter even the intolerant should enjoy equal democratic liberties unless the intolerant represent an immediate danger to the liberty of others. Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press, § 35, pp. 218–220.
23. In engaging in this kind of analysis, however, one must always be clear that there is no necessary relationship between the conduct and commitments of actual Muslims, and the normative Islamic doctrines that are the subject of normative analysis.
24. Rawls, John. 1996. Political Liberalism. New York, NY: Columbia University Press.
25. Accordingly, an issue such as “honor crimes,” which are popularly associated with Muslim immigrant communities in Europe, represents a problem of law and order, and does not represent a principled challenge to the norms of a liberal public order because Islamic doctrines do not endorse “honor killings.” Thus, the presence of “honor killings” in Muslim immigrant communities, even assuming that such gender-based killings occur disproportionately in Muslim immigrant communities, does not raise a normative issue of compatibility. To the extent that reliable empirical evidence exists, however, it gives evidence that immigrant Muslims generally do not reject the political values of their adopted countries. See, for example, Klausen, Jyette. 2005. The Islamic Challenge: Politics and Religion in Western Europe. Oxford, UK: Oxford University Press; and Cesari, Jocelyne. 2004. When Islam and Democracy Meet: Muslims in Europe and in the United States. New York: Palgrave Macmillan; and, Rohe, Mathias. 2004. “The Formation of a European Shari‘a.” In Muslims in Europe: From the Margin to the Centre, ed. Malik, Jamal. Münster, Germay: Lit Verlag, 161–184.
26. March, Andrew. 2007. “Islamic Foundations for a Social Contract in non-Muslim Liberal Democracies” American Political Science Review 101:235–252, 237–238.
27. For an example of such an approach to broader questions of the relationship of Islam as a comprehensive doctrine to public reason that focuses on abstract Islamic theological and jurisprudential commitments, see Fadel, Mohammad. 2008. “The True, the Good, and the Reasonable: The Islamic Roots of Public Reason.” The Canadian Journal of Law & Jurisprudence 21:5–69; for an example of such an approach to specific areas of legal conflict, see Fadel, Mohammad. 2007. “Public Reason as a Strategy for Principled Reconciliation: The Case of International Human Rights Law and Islamic Law.” Chicago Journal of International Law 8:1–20.
28. For an introduction to the doctrine of siyāsa shar‘iyya, and its relationship to Islamic jurisprudence (fiqh), see Rabb, Intisar, and Colin, Imber. 2009. “Administrative Decrees of the Political Authorities (Qānūn).” In The Oxford International Encyclopedia of Legal History. Oxford, UK: Oxford University Press; see also, Fadel, Mohammad. 2009. “Back to the Future: the Paradoxical Revival of the Aspirations for an Islamic State.” Review of Constitutional Studies 105:108–113 (describing the relationship of political rule-making to rules derived from the interpretation of revelation in classical Muslim jurisprudence).
29. See, for example, Fadel, Mohammad. 2010. “Is Historicism a Viable Strategy for Islamic Legal Reform? The Case of ‘Never Shall a Folk Prosper Who Have Appointed a Woman to Rule Them.’” Islamic Law & Society 18:131–176 (2011).
30. Rawls, John. 1997. “The Idea of Political Liberalism Revisited.” University of Chicago Law Review 64:765, 792.
31. See Okin, Susan Moller, Cohen, Joshua, Howard, Matthew, and Nussbaum, Martha C., eds. 1999. Is Multiculturalism Bad for Women? Princeton, NJ: Princeton University Press.
32. Id, 105–114 (“A Plea for Difficulty,” Nussbaum's reply to Okin in defense of political liberalism's more narrow conception of gender equality).
33. al-Qaraḍāwī, Yūsuf, Min Fiqh al-Dawla fī al-Islām [On the Islamic Law of the State]. 1997. Cairo: Dar al-Shuruq, 161–176.
34. ‘Abd al-Ḥalīm Maḥmūd Abū Shuqqa. 1990. TaÎrīr al-Mar'a fī ‘Aṣr al-Risāla. Kuwait: Dār al-Qalam.
35. Rawls, Political Liberalism, supra n. 24, at. p. 224 (noting that public reason requires citizens, when discussing constitutional essentials and basic justice, “to appeal only to presently accepted beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial.”).
36. Rawls, John. 1971. A Theory of Justice. Cambridge, MA: Harvard University Press, 19–21.
37. For a brief description of the process by which Muslim jurists engage with revealed texts to derive norms, see Wael Hallaq, An Introduction to Islamic Law (Cambridge University Press: New York, 2009), pp. 14–27.
38. See Mohammad Fadel, The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law, 21,1 Can. J. L. & Jur. 5, 21–29 and 67 (describing Islamic commitments as being made up of a hierarchy of normative discourses at the apex of which is theology, followed by ethics (or moral theology) and then followed by law).
39. Andrew F. March, Law as a Vanishing Mediator in the Theological Ethics of Tariq Ramadan (describing what he calls the “Reformer's Dilemma”) (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1478910, forthcoming in the European Journal of Political Theory), p. 32.
40. See, for example, Mohammad Fadel, Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights Law, 8,1 Chi. J. Int'l L. 1, 12–13 (2007) (providing examples). More generally, see Article 39 of the Mejelle, the 19th century Ottaman civil code, which states that “It is an accepted fact that the terms of law vary with the change in the times,” 1,4 Arab L.Q. 373, 375 (1986).
41. Qur’ān, 4:6 (al-Nisā’).
42. Pre-modern Muslim jurisprudence formally distinguished between these two types of interpretive activities. Interpretive activities centered on a proper understanding of revelation was known as ijtihād fī al-shar‘ while interpretation of the empirical world was known as ijtihād fī al-sabab. While the question of whether there was an ongoing obligation to perform the former was a matter of controversy among pre-modern Muslim jurists (giving rise to the claim that “the gate of ijtihād was closed”), it was a matter of agreement that interpretation of the empirical world must continue until the end of time. 4 Abū Isḥāq Ibrāhīm b. Mūsā al-Shāṭibī, al-Muwāfaqāt fī Uṣūl al-Sharī‘a (Dār al-Ma‘rifa: Beirut, 1975) 89, 95–96.
43. See, for example, Amina Wadud, Insider the Gender Jihad: Women's Reform in Islam (Oxford: One World, 2006).
44. Fadel, supra n. 27, at p. 13 (stressing the importance in the evaluation of compatibility arguments to use sources that are plausible to those Muslims who might believe that democratic commitments are incompatible with Islam) and Andrew F. March, “Liberal Citizenship and the Search for an Overlapping Consensus: the Case of Muslim Minorities,” 34 Phil. & Pub. Affairs 373, 374 and 375 n.2 (same).
45. Al-Qaradawi is head of the European Council for Fatwa and Research, an organization whose goals consist of, among other things, coordinating between Muslim scholars of Europe and promulgation fatwās (religious opinions) that are consistent with the teachings of Islamic law, meet the needs of Muslim communities in Europe, and regulate their interaction with the non-Muslim majority. For the Council's Mission Statement, see http://www.e-cfr.org//en/ECFR.pdf (last visited March 12, 2010). For more on al-Qaraḍāwī's life, see “Qaradāwī, Yūsuf al-” in 4 The Oxford Encyclopedia of the Islamic World, ed. John L. Esposito (2009) at p. 454.
46. It is sometimes claimed that pragmatism (and a highly-unprincipled one at that) is now the most important theoretical principle in modern Islamic juristic thought. See, for example, Wael Hallaq, Sharī‘a: Theory, Practice, Transformations (Cambridge University Press: New York, 2009) at pp. 508–510.
47. 1 Abū Shuqqa, at p. 28.
48. For more on Salafism, see “Salafīyah” in 5 The Oxford Encyclopedia of the Islamic World, ed. John L. Esposito (2009) at p. 28. Nāṣir al-Dīn al-Albānī belonged to a trend within Salafism that eschews politics and preaches obedience to government. See “Salafī Groups” in 5 The Oxford Encyclopedia of the Islamic World, ed. John L. Esposito (2009) at p. 26.
49. 1 Abū Shuqqa, at p. 28.
50. See, for example, id. at 15 (al-Qaraḍāwī, in his introduction to Abū Shuqqa's work, criticizes Muslim gender egalitarians who wish to award female heirs of the same class the same share as that allotted by the Qur’ān to male heirs of the same class, e.g. brothers and sisters, or wish to prohibit polygamy, because in each case the Qur’ān clearly allows these gender distinctions).
51. Al-Qaraḍāwī, at p. 161.
52. Bernard Weiss, The Search for God's Law (University of Utah Press: Salt Lake City, 1992) at p. 437.
53. 2 Abū Shuqqa, at p. 15.
54. Id. at p. 161.
56. See, for example, Mohammad Fadel, Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights Law, 8 Chicago J. Int'l L. 1, 14 (2007).
57. 5 Fakhr al-Dīn Muḥammad b. ‘Umar al-Rāzī, Mafātiḥ al-Ghayb (Cairo: al-Maṭba‘a al-Miṣriyya al-‘Āmiriyya, 1862) at p. 185.
58. Muḥammad b. ‘Abdallāh b. al-‘Arabī, Aḥkām al-Qur’ān al-ṣughrā, edited by Ahmad b. Farid b. Ahmad Mazīdī (Beirut: Dār al-Kutub al-‘Ilmiyya, 2006) at p. 439.
59. Mohammad Fadel, Two Women, One Man: Knowledge, Power and Gender in Medieval Sunni Legal Thought, 29 Int't J. Middle East Studies 185, 196 (1997) (noting minority views permitting women to be Islamic law judges).
60. Abū Shuqqa, at p. 36–37 (Qaraḍāwī, in his introduction to the book, criticizing medieval doctrines declaring that a woman's obligation was to stay at home unless circumstances required her to leave it).
61. For an overview of al-Qaraḍāwī's approach to Islamic law, see Yūsuf al-Qaraḍāwī, ‘Awāmil al-Sa‘a wa al-Murūna fī al-Sharī‘a al-Islāmiyya (Kuwait: al-Majlis al-Waṭanī li-l-Thaqāfa wa-l-Funūn wa-l-Ādāb, 2002) and especially pp. 15–39 (explaining that God intentionally left most issues unaddressed by revelation so that Muslims could adopt flexible solutions based on changing social and historical circumstances). What I am calling “legal minimalism” is derivative of the theological doctrine known as al-barā'a al-aṣliyya, the idea that humans are naturally free from moral duties. Al-Qaraḍāwī's innovation is that he requires substantially greater evidence than that required by pre-modern jurists to overcome the theological presumption of moral non-obligation.
62. Al-Qaraḍāwī, at p. 162.
64. Al-Qaraḍāwī's legal minimalism is consistent with what Charles Kurzman described as a mode of “Islamic liberalism” that is grounded in the “silent sharī‘a.” Charles Kurzman, Liberal Islam: a Sourcebook (New York: Oxford University Press, 1998) at pp. 13–14.
65. Id. pp. 162–163; cf. Abū Shuqqa, at p. 5 (Muḥammad al-Ghazālī describing the pre-modern Islamic ideal of women leading a cloistered life as being characteristic of “an Age of Ignorance (Jāhiliyya), not an Age of Islam”).
66. Al-Qaraḍāwī, at p. 163.
67. 33:33 (Al-Aḥzāb).
68. For one version of this report along with a pre-modern commentary on its significance, see 8 Fatḥ al-Bārī Sharḥ ṣahīḥ al-Bukhārī, Aḥmad b. ‘Alī al-‘Asqalānī, ed. ‘Abd al-‘Aziz b. Baz (Dar al-Kutub al-‘Ilmiyya: Beirut, 1989), at pp. 159–160. For a detailed treatment of the history of this text, as well as the uses to which it has been put by pre-modern Muslims, see Mohammad Fadel, supra, n. 29.
69. 4:34 (al-Nisā’).
70. The special moral and legal status of the Prophet Muhammad's wives is reflected, for example, in their title as “Mothers of the Believers.”
71. Al-Qaraḍāwī, at p. 163.
72. Id. at p. 164.
73. Id. at p. 163.
74. Al-Nisā’, 4:34.
75. Al-Qaraḍāwī, at p. 165 and p. 167.
76. Id. at p. 167.
77. Id. at pp. 174–175.
78. See Fadel, “Historicism,” supra n. 29, at p. 161 (manuscript on file with the author). It should be pointed out that such arguments were not exclusively Islamic. Thomas Jefferson, for example, wrote that “Were our state a pure democracy, there would still be excluded from our deliberations . . . women, who, to prevent depravation of morals and ambiguity of issues, should not mix promiscuously in gatherings of men.” Ruth Bader Ginsburg, Sexual Equality Under the Fourteenth and Equal Rights Amendments, 1979 Washington University Law Quarterly 161, 172.
79. Al-Qaraḍāwī at p. 171.
80. Id. at pp. 171–173.
81. Id. at p. 169.
83. Id. at p. 176.
84. One can compare in this regard the recent public debate in the United States surrounding Sarah Palin and whether it was appropriate for a mother of a young infant to accept a nomination for the vice-presidency.
85. Id. at p. 167.
86. John Rawls, The Idea of Public Reason Revisited, 64 U. Chi. L. Rev. 765 (1997).
87. Id. at 788–792. While one would have a reasonable basis to question whether these background conditions are satisfied in most Muslim-majority states, there is little reason to doubt that they are satisfied, or nearly so, in the liberal democracies of Europe and North America.
88. See, for example, 2 Abū Shuqqa, at p. 16 (arguing that while a cloistered life for a woman is inconsistent with the Islamic conception of the good life, so too is casual mixing with men whose purpose is simply the hedonistic pleasure derived from their company (istimtā‘an bi-ṣuḥbatihim)).
89. Id. at 19.
91. Id. at 20.
92. Cf. Rawls, Public Reason Revisited, supra n. 86, at pp. 792–793 (noting that justice requires only that women be fairly compensated for disproportionate burdens they undertake in connection with reproductive labor, not that it be distributed equally between members of a family).
93. 2 Abū Shuqqa, at p. 20.
94. 1 Abū Shuqqa, at p. 304.
97. Id. at p. 313.
98. Id. at p. 313.
99. Id. at p. 314.
100. Refah, at par. 123 (stating that Islamic law rejects “the constant evolution of public freedoms”).
101. Finnis, at pp. 3–4 (noting that the decision in R (on the application of Begum) v Denbigh High School Governors  UKHL 15,  1 Appeal Cases 100, which denied a British Muslim girl's request to wear a jilbāb, a more demanding form of Islamic dress than the school-approved form of Islamic uniform, can only be understood by the court's willingness to restrict Muslim religious freedom without requiring the state to provide the kind of admissible evidence of necessity that is ordinarily required in claims involving restrictions of individual rights).
102. Rawls, for example, argues that the fact that a sect is intolerant, in itself, does not give sufficient reason to suppress it. The right to suppress only arises when the tolerant, “sincerely and with reason believe that intolerance is necessary for their own security.” Rawls, Theory, supra note 36 at p. 218. On the other hand, “when the constitution itself is secure, there is no reason to deny freedom to the intolerant.” Id. at p. 219.
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