ABSTRACT

Shari’a has entered European parliaments, administrations and courts. In several European states legislation on Islamic norms concerning clothing, slaughtering and family law practices has recently been passed or is on the way. Administrations have to deal with the religious or political convictions of Muslims applying for citizenship, and courts are every day applying foreign law in civil law matters according to the provisions of private international law. In a hopefully singular case in 2007, a judge in Frankfurt/Germany refused to grant legal aid for a wife of Moroccan origin who wanted to obtain an immediate divorce because she was severely beaten by her Moroccan husband (according to the legal hardship clause). The judge in her reasoning said that, according to the provision in Qur’an Sūrah 4: 34, beating wives was common in the culture of origin of the parties, and therefore denied a case of hardship. This decision contains several severe mistakes, ignoring Moroccan law, which does not permit domestic violence (see art. 98 sect. 2, 99 of the Family Law Code), as well as German law of conflicts, which would refuse the application of a foreign provision ‘allowing’ domestic violence on the grounds of German public policy. Besides that, she ignored new interpretations of the Qur’anic provision mentioned, saying that the term daraba has to be interpreted as ‘to separate’ instead of ‘to beat’ (Zentrum für Islamische Frauenforschung und Frauenförderung 2005). This decision, which was reversed shortly after being made public, caused a heated debate in Germany on an alleged ‘Islamization’ of the German judiciary.