Muslims In European and American Public Spheres and The Limits of The Liberal Theories Of Citizenship

Recent events in Europe, from the cartoon crisis in Denmark to the controversy over minarets in Switzerland, have brought the status of Islam in the secular public space to the forefront of European political debates. Likewise since the ground zero  mosque controversy, resistance to mosque building as well as anti-sharia egislation, has spread out since across the United States. The consequence of such a political discussion is the hardening of the boundary between what is public and what is private, (assuming that religions generally belong to the private space). Collective views in Europe have evolved to the point that any claim or expression in public space resulting from religious beliefs is seen as illegitimate.  As noted by Jürgen Habermas, the liberal vision of the secular public space poses a special burden on the shoulders of religious citizens. Taken to the extreme, it implies that many would not be able to undertake such an artificial division – between their religious beliefs and their civic participation -- within their own minds without destabilizing their existence as pious persons. "[1]

According to liberal theories, expressions of religious citizens would be acceptable in public space as long as they do not influence formal law-making and as long as they are expressed in an acceptable public venue. The political reality is actually more complex and reveals a narrowing or even complete disappearance of public spaces where religious expressions are possible. Talal Asad explains this contradiction by engaging in a Foucauldian deconstruction of public space. Asad’s approach to secularism is particularly helpful in explaining the current debate on Islam in Europe and simultaneously requires some contextual nuances.

Unlike the liberal theoreticians John Rawls and Charles Taylor, Talal Asad does not see the secular space as a “neutrally” 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 a heterogeneous landscape of power. From the beginning, in Asad’s view, the “liberal public sphere” excluded certain kinds of people: women throughout the nineteenth and twentieth century, 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 16th 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 sixteenth century “civil society” 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 at the heart of the debate over the definition of “secularism”[2]. In 21st century Europe, it is important to understand the public sphere as not only a disembodied voice, but also as a product of the media and state-mediated discourses.

From such a perspective, it is easy to see that the same issue of tension between civil authority and the Muslim communities is the crucial driving topic of current debate in Europe. During the cartoon crisis, for example, along with the voices of Muslims who were protesting against blasphemy, several were using more secular arguments that could have been received in the public space, but were rejected because of the particular 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 political acts that can incite violence. Regardless, a priori perceptions of Muslims based on extremism often prevent rational consideration of expressions that are legitimate within the legal systems.

In the same vein, the rallying of European Muslims who wanted to ban the Satanic Verses in 1998 and murder its author has been seen by some prominent advocates of minority rights as an important example of a religious and cultural minority attempting to introduce internal restrictions that are unacceptable given that they undermine individual autonomy.[3] For example, Charles Taylor considered the demand that theSatanic Verses should be banned as illegitimate.[4] Michael Walzer, well known for his relativist approach to values,[5] took a hard-line liberal position to defend author Salman Rushdie against his detractors by invoking the fact that immigrants, by their very choice of immigrating to Europe, have chosen to adopt Western liberalism and should therefore conform to it.[6]

On the other hand, 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.[7] Instead, they explain the protests of Muslim leaders as simply evidence of their desire to include Islam in the British Blasphemy Law which, though repealed since 2008, was strictly limited to Anglicanism. These examples of the divergent ways in which Muslims make claims on secular public space highlight the limits of the “overlapping consensus” in favor of an unbalanced relationship of power between a specific religious group and the representative of civil authority. 

A different and contradictory example of the tension between civil order and the Muslim community, and one upon which the rest of this article will focus, concerns the recognition of Islamic Law within existing legal systems. In this specific context, in order to bring nuance to Asad’s interpretation of secular space as simply as politics of hegemony, the examples that follow will show that representatives of civil authorityalso try to foster equality and tolerance. Contrary to the widespread belief that Muslims in the West seek the inclusion of shari’a 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 politics and the democratic process, utilizing mainstream parties and institutions.[8] At the same time, their acceptance of secular practices does not mean that they renounce Islamic principles and legal rules to guide or structure their daily life. We clearly observed this tendency in focus group discussions led in Europe and in the US in 2007 and 2008 in which many Muslims expressed strong attachment to religious, rather than civil, marriage and divorce[9].

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 provides us with a possible way to reconcile the two conflicting forces: “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.”[10] Sometimes, however, Islamic groups collectively request rights that limit individual freedom. The Rushdie Affair and the desire to protect Islam under the Blasphemy Law was an illustration of such a dilemma.

For example, in the focus groups conducted among European Muslims, the participants highlighted the dilemma they faced in trying to express how offended they were by the Danish cartoons. They were bothered not so much by the representation of the Prophet Muhammad but rather by the fact that he was depicted as the quintessential figure of violence, with his turban drawn as a bomb. The participants felt that expressing their disapproval of such a representation was interpreted as unpatriotic, while they themselves did not consider such an opinion incompatible with being European citizens. The same discrepancy emerged in some groups with regards to issues of dress code and the hijab, which can be considered unpatriotic in some European places but obviously hold 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 extended to the terms of the debate on the minaret. 

When we turn to the shari’a debate, Kymlicka’s two conditions come under intense scrutiny. Research corroborates the pollings in showing the acceptance of secular orders by the majority of Muslims in Europe. In fact, among the focus group participants, none expressly rejected European secular principles. Nevertheless, such acceptance does not preclude tension between issues such as the Islamic practices of marriage, divorce, and child custody and the theme 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 based on Muslim shari’a law, imported from some Muslim countries, appears problematic in the process of integrating Muslims, to the point that some compare the situation to a conflict of civilizations.[11] 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 Europe’s perception of Islam and Muslims. However, the silent majority of European Muslims already accept Islam’s compatibility with the basic precepts of human rights.

We examined the literature and jurisprudence of several key European countries in order to ascertain the arguments used by the courts and by Muslims 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, resulting in residents acting under their national laws. In this case, 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, it does not prevent the continuance of customs that can be discriminatory toward women and can be presented as “Islamic.” One example is the recent case of divorce of a Moroccan couple before the French courts; the husband wanted a divorce because his wife was not a virgin at the time of marriage.

The second condition, advanced by Kymlicka and a case of promoting equality of culture, is also problematic, since Islam as a religion and culture is still perceived as alien and external 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. In the post-9/11 context, some of the Muslim claims 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, except for elements of French secularism. But the complete acceptance of European civil law is also rare.  Among focus group participants, some recognition of Islamic prescriptions in the 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, or 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 that 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.[12] Consequently, a slow and “invisible” form of personal Islamic law is being constructed and adapted to Western secular laws[13]. 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,13 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 that, “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” (158).14 

Conclusion: secularism as a tragic category

Interestingly, Talal Asad has perceived the tragic character of secularism, especially in his interpretation of Benjamin’s reading of Trauerspiel. Incidentally, it may contradict his tendency to reject secularism as a category 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 (64-65)”15.

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 can also help to understand that most Muslims in the West have not yet internalized this concept of an uncertain and tragic reality. It echoes at the level of the believer what Charles Taylor calls “the third meaning” of secularism: namely, the fact that believers persist to exist in a world where their beliefs are continuously challenged by other values. This is the most demanding aspect of being a Muslim in the West. How can one maintain one’s sense of the Islamic truth and simultaneously acknowledge the truth of the others?  This question embodies the core of a book written by Rabbi of England Jonathan Sachs that led to an intense and controversial debate in the UK six years ago. This is the most salient challenge the status of Muslims in Europe or the United States.  It is fascinating to observe the increasingly inclusive positions taken by Muslim intellectuals on these questions and the fact they sometimes come under attack from more religious voices in and outside of Europe. 

The challenge of being able to believe without feeling threatened by other’s beliefs came across very strongly in the focus groups when asked about relationships with non- Muslims, tolerance vis-à-vis apostasy. No real consensus on these questions emerged on these issues. The discussion highlighted a clear divide between the perception of the virtuous Muslim as one who embodies the moral commitment of theUmmah above all others and the ones who could live with it with a sense of relativism.