By Bryan S. Turner and Berna Zengin Arslan*

The possibilities for pluralism and tolerance have since 9/11 been severely tested and constrained by a discourse of terrorism and security. The development of an intelligent and cosmopolitan understanding between religious communities in Europe and America has been halted by a range of legal and political responses to terrorism. In particular, Islam as a civilisation has come to be defined as fundamentally incompatible with western values. Muslim communities have thus been marginalized by a mixture of official processes of securitization and by popular suspicion and hostility. Early public criticism of veiling has been followed by anxiety about the spread of Shari’a courts. In the United Kingdom, there has been considerable disquiet, expressed in the national press, that the government has adopted a pragmatic policy of de facto recognition of Shari’a courts and not just arbitration. For example a Sunday Times report in September 2008 noted that ‘the government had quietly sanctioned the powers for sharia judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence’ (Taher, 2008). Shari’a court rulings can be enforced in terms of the Arbitration Act 1996 through the county courts or High Court. Under a system of ‘alternative dispute resolution’ cases can be heard and judgements enforced where both parties have agreed to give the power of resolution to an arbitration tribunal. However, following the Archbishop of Canterbury’s lecture in 2008 in which he suggested that the adoption of Shari’a to promote community cohesion was unavoidable, the Government of Gordon Brown was quick to say that, while there had been changes in the regulations to allow ‘sharia-compliant mortgage products’, there was no possibility that Shari’a principles could be used in a civil court. In Europe Angela Merkel the German Chancellor recently stated that, while the Liberal Democrats would take measures to support migrants, only the Constitution and not the Shari’a would apply. Similar opposition to Shari’a has been expressed in the United States where, according to The Economist (October 14, 2010) Newt Gingrich, a former House speaker, has argued that America needs a federal law to establish the principle that the Shari’a may never be recognised by any American court. The right-wing Dutch politician Geert Wilders has attempted to spread an anti-Muslim movement in Britain and America to prevent such developments. In the United States similar arbitration arrangements are also available through the U. S. Federal Arbitration Act (FAA) of 1925 which provides for the resolution of disputes arising out of private contractual relationships by an arbitration panel. As in Britain, where there is a substantive difference between Shari’a and state or federal law, then clearly the judgement of an arbitrator could not be legally enforced. Hence in this article we argue that legal pluralism in general and recognition of Shari’a courts in particular is an important test of the limits of multiculturalism.

In this discussion, we are less concerned with the nature and contents of Islamic law, and more interested in arguments about the implementations of its evolution in Europe which we contrast with the example of Turkey. We treat the possibility of Turkish membership of the European Union as a test case of legal pluralism and the extent of multiculturalism. In considering the Shari’a it is worth distancing ourselves from classical Orientalist interpretations which treated the Shar’ia as a unified body of law enjoying more or less undisputed authority within traditional Muslim societies. The Orientalist view was perfectly expressed by Joseph Schacht (1964) who in his Introduction to Islamic Law in 1935 established a classical interpretation by claiming that the ‘sacred law’ of Islam was a comprehensive moral framework regulating all aspects of the lives of Muslims. Although this interpretation of Shari’a has become the accepted view of many reformist movements in modern Islam, it was not the historical reality of actual Muslim societies. The majority of contemporary interpretations of the Shari’a tend to go in the opposite direction from traditional Orientalism by noting its diversity and complexity across historical periods and societies (Amanat and Griffel, 2007).
If Shari’a is a significant test of the depth of multiculturalism in general, then the prospect of Turkey joining the European Union is a significant test of the prospects of European expansion and integration. The irony of Turkey’s position in relation to Europe is interesting, since Turkey is a clear-cut case of modern secularism at the constitutional level, but of a profoundly Muslim society in terms of its civil society. The creation of the Turkish Republic involved the termination of the Caliphate, the suppression of Shari’a as the legal framework of society and the adoption of French secular to create a secular constitution. Elsewhere in the Islamic world, legal systems were often dislodged or reorganized by western positive law during colonization in the nineteenth and twentieth century. However, in the post-colonial period, there has been a significant revival of Islamic legal thinking in order to modernize legal practice and to make the impact of Islamic law more widespread in the community. This modernization of law often results in legal pluralism, as in for example Malaysia, where Shari’a competes with English common law, tribal codes and human rights legislation (Peletz, 2002). In the Malay case we might say that Islamic legal practice has been modernised by lawyers who implicitly shared Max Weber’s critique of the ‘irrationalities’ of traditional Islamic legal practice. And so Shari’a has been made more central to Malaya life by lawyers who were as often as not trained in English legal practice and whose mental attitudes and professional habitus are distinctively western. This development is not to say however that Shari’a has achieved a dominant or monopolistic position. Rather it is shares the legal stage with international law, human rights conventions, global corporate law, and an English common law tradition.

At the outset we need to recognise that there are long-standing problems in defining legal pluralism. The concept emerged in the 1970s out of the work of legal anthropologists working on the study of law in post-colonial societies. In those studies, it typically referred to the incorporation of customary law into the state law or its maintenance alongside the state system. It has been embraced by postmodernists to describe the fragmentation and competition between multiple legal systems in modern societies. In an article on legal pluralism, Brian Tamanaha (2008) concedes the problem in defining legal pluralism is simply a by-product of the problem of defining law. With respect to this problem, he identifies two traditions. Firstly law is, following anthropologists like Bronislaw Malinowski, simply the normative order of a social group. The problem with this approach is that it is sufficiently expansive to include the obligations emerging from all social relationships. Secondly, law, following Max Weber, can be defined in terms of the public institutions to enforce norms. In the jurisprudence of H.L.A.Hart, law is the combination of primary rules (that is the rules that apply to conduct) and the secondary rules (that is the rules that determine which primary rules are valid, how they are created or found, and how they should be applied). Tamanaha suggests that there are two problems with this approach. Many institutions apply rules and there is no clear way to determine which are public and which are not. Are the rules of the Mothers’ Union laws? Secondly, as Hart (1961:89-91) claimed in The Concept of Law some societies (for example ‘primitive societies’) do not have institutionalized mechanisms of enforcement, but anthropologists dispute this claim. These issues are important for this discussion of Shari’a since crucially there is no definitive consensus about whether the enforcement of norms by religious arbitration tribunals is in fact law. There is much confusion as a result and some theorists who welcome post-modern interpretations of this situation accept the conclusion that ‘legal pluralism’ simply defines any form of normative or regulatory pluralism (de Sousa Santos, 1995).
However, academics are reluctant to embrace confusion with enthusiasm. Tamanaha (2008:397) observes that, while law has no scientific definition that is ultimately satisfactory, whenever ‘legal pluralism’ is invoked ‘it is almost invariably the case that the social arena at issue has multiple active sources of normative ordering’ such as official legal systems, folkways, religious traditions, economic or commercial regulations, ‘functional normative systems’ and community or culturally normative systems. Tamanaha concludes by saying that ‘The longstanding vision of a uniform and monopolistic law that governs a community is plainly obsolete’ (Tamanaha, 2008: 409). It is often thought to be a problem emerging in the modern state, where the unified sovereignty of the state is challenged by different competing, and occasionally overlapping systems of law. Although legal pluralism is often associated with both globalization and post-colonialism, in fact legal pluralism had existed in Europe through the medieval period in terms of ius commune, commercial law (lex mercatoria) and ecclesiastical or canon law. Modern Muslims may also like to imagine a time when the Shari’a had a dominant and exclusive authority, but this notion turns out to be mythical (An-Na‘im, 2008). Furthermore, in the Islamic tradition, the Shari’a must sit outside the state and hence the notion of an Islamic state or Shari’a-state would not correspond to traditional jurisprudence. Quoting Sherman A. Jackson (1996: xiv-xv) at some length, this ‘ideological difficulty’

results from a fundamental conflict between the theory underlying the nation-state and that of the Islamic legal tradition. In a nation-state, the state is itself the only true repository of legal authority, the monopolization of which, by definition, it ever so zealously guards…..[Legal authority in Islam] is acquired, rather, in the first instance, informally by way of reputation (or formally according to Shi’ite tradition, by designation) and then via grants of authorization from individual teacher to student.
To this contemporary legal discussion, we respond by observing that, while much globalization theory believes that the nation state is obsolete or at least that its borders are porous, the ultimate source of legal enforcement is the state or an agency of the state that has the power to declare what is the law. Against post-modern interpretations of the law, we want to embrace the tradition of John Austin and Hans Kelsen, despite the many criticisms of their legacy, in treating law as ultimately command backed up by the power the state (Hart, 1977). Without enforcement, how can any normative ordering function as law? We admit that this argument leaves open the criticism of Weber, Austin and Kelsen that state legality is not necessarily state legitimacy (Schmitt, 2004).

Perhaps the real issue with Shari’a or any other system of religious courts is: who will enforce it? This problem of enforcement is clear in the case of human rights which are typically enforced by nation states in the absence of global governance. In short, all forms of ‘normative ordering’ – including the Mother’s Union – will require the ultimate sanction of a state. Secondly, in the current crisis about multiculturalism and objections to legal pluralism, states as a matter of fact claim sovereignty. Finally, as an empirical fact, some states may be more reluctant than others to contemplate any compromise over national sovereignty such as Merkel’s Germany. The United States legislature also appears to be reluctant to admit legal pluralism even when it looks favourably on European human rights legislation. For the purposes of this article we follow Max Weber’s political sociology in arguing that law is a normative ordering that is typically enforced by a state that claims sovereignty in a given territory and hence we shall simply describe legal pluralism as a situation in which there are competing ‘bodies of law’ within a given sovereign territory, but where a state has the ultimate sanction over legal jurisdiction. This attempt to avoid the logic of legal postmodernism attempts to preclude the possibility of so-called ‘non-state law’ that some observers think is an unavoidable outcome of globalization. For example William Twining (2000: 138) in Globalisation & Legal Theory suggests that ‘One consequence of globalisation is a tendency to loosen the association of the ideas of law, state and nation and so to make more salient the multiplicity of legal orderings’. This ignores the fact that almost invariably international law is enforced by sovereign states and failed states are precisely states within which law no longer functions effectively to coerce errant behaviour. In empirical terms of course, not all states are as complex as Indonesia or as culturally diverse as the Ottoman Empire. Nation states like France, England and Germany are not post-colonial states like Indonesia. Federal states like the Commonwealth of Australia, the United States and the United Kingdom are not like the Ottoman Empire. To modify Benedict Anderson (1983), some states are more ‘imagined’ than others. While the idea of state sovereignty and a unified legal code in many post-colonial societies such as Nigeria may be a political fiction, it seems to us that it is a necessary fiction or at least that any functional system of law would have to have some minimal agreement about a final umpire who could arbitrate between competing legal claims. The growth of legal pluralism becomes a problem in societies where a common citizenship is fragmenting under the impact of globalization and the decline of shared culture.

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*Berna Zengin Arslan is a Ph.D. candidate in Sociology at the University of California, Santa Cruz, Santa Cruz, CA. See also: http://sociology.ucsc.edu/directory/details.php?id=80