False Jurisdictions? A Revisionist Take on Customary (Religious) Law in Germany

By Fournier, Pascale; McDougall, Pascal | Texas International Law Journal, Summer 2013 | Go to article overview

False Jurisdictions? A Revisionist Take on Customary (Religious) Law in Germany


Fournier, Pascale, McDougall, Pascal, Texas International Law Journal


SUMMARY

INTRODUCTION: CUSTOM AS A SOCIAL LEGAL ORDER? ....................... 435

I. THE GERMAN LEGAL LANDSCAPE: RELIGION, STATE, AND CUSTOM ....... 439

II. PLURAL BELONGINGS AND RELIGION'S EXTERNAL BOUNDARIES ......... 445

III. ADJUDICATORY CONTRADICTIONS AND RELIGION'S INTERNAL STRIFE.... 453

CONCLUSION: LEGAL SCHOLARSHIP IN TIMES OF DIASPORA AND MIGRATION ...461

INTRODUCTION: CUSTOM AS A SOCIAL LEGAL ORDER?

Over the last decades, two important debates have echoed each other in Western European countries. The first is quite ancient, and touches upon the place of custom in the legal system and its distinction from (state) law.1 The second debate, of more recent origins, pertains to the integration of minorities through recognition of their distinct religious normative orders.2 Despite fundamental differences, both discourses share many interesting meeting points. Indeed, customary law is currently defined as a system that "grows out of the social practices [that] a given jural community has come to accept as obligatory."1 It is viewed as a "pervasive normative order."4 Customary law "arises when there is a long-standing practice and those affected by it recognise its legality."5 The virtues of customary law have been sung by many authors, who view it as a living, democratic, and social form of law, to be preferred over state law whenever possible.6 For instance, one author argues that customary law is valuable because it "assur[es] [the states'] citizens of their legal rights to believe in and practice their own different ways of life."7 Another commentator stresses the value of this form of law on the grounds that it is "made from the 'bottom up' by relevant communities."8 Finally, other authors underline the need "for a country to both respect and make space for the customary legal systems of its various populations."'' Customary law-often portrayed as a "bottom-up" approach to sustainable economic development in lieu of state intervention1" or as a way to repair injustice committed by settler states towards aboriginal groups"-has been invoked in many different social contexts. Unsurprisingly, the view of customary law as an empowering social legal system has been especially strong with regard to religious and non-Western customary laws. One author thus deplored a tendency "to regard the rules of social intercourse observed in non-Western communities as not being in any true sense law."12 The author proposed that "we ought not therefore to refuse to recognise ... an institution or status unknown in our Western countries"11 but instead recognize all non-Western customs in the name of the "progressive integration of what is after all... a single world."14 Specifically with regard to the recognition of Islamic law in Western countries, some authors, likening Islamic law (Shari'a) to customary law," have argued in favor of "allowing [Muslims] to have the social space within which S/iarfa-mindedness can flourish, thereby allowing pious Muslims to live a faith-based life.""1

In this Article, we problematize this idealized picture of customary law as harmonious. Based on fieldwork, we present customs as contested from the inside and open to decisions, strategies, and manipulations that sometimes alter their content and meaning. The product of our fieldwork arises from the particular context of Germany, a country that shares many traits with other continental European polities as far as the recognition of religious laws is concerned. Germany has been marked by debates surrounding the search for "pluralistic modes of incorporation"" of communities along the lines of their religious socio-legal orders, specifically as to the possibility for Muslims to organize their community along religious lines in an entity called a public law corporation, like German Christians and Jews are allowed to do in Germany.1* A "religious conception of community," such as that adopted with regard to the issue of religious public law corporations, bears much relevance to the topic of the recognition of religious custom. …

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