This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Angelo Rinella (LUMSA) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:
Migration flows, whether for humanitarian or economic reasons, have profoundly changed the face of today’s European societies. Groups of different ethnic, cultural, and religious origins have been added to the communities originally settled in the territories of states. These newcomers are required to observe the existing rules to ensure peaceful coexistence and to comply with the established order. At the same time, the Constitutions of liberal and democratic states guarantee that minorities and individuals who are “different”—by social, economic, religious, and political condition—do not suffer any discrimination because of their diversity. In this context, some communities with a religion extraneous to the European religious tradition, such as Islamic communities, ask to regulate some of the affairs of their personal lives according to religious rules, as an alternative to the state civil law.
This demand for recognition of their own identity persists even in the face of state inertia. It produces the de facto formation of regulatory micro-systems that have in their effectiveness their legitimation principle. Micro-systems of norms that coexist in the same territory of the state and apply to certain groups of individuals settled in the same space of the state. Individuals who choose to regulate certain aspects of their existence according to different and alternative rules with respect to the state rules. In other words, the State loses the monopoly of the production of the rules in the State territory.
Anthropologists define this phenomenon in terms of ‘legal pluralism.’ For us, legal scholars, the scenario painted poses a number of problems and questions.
My opinion is that in front of such a scenario, rejecting or denying the problem would be the most detrimental and, all in all, inconsistent with the democratic, liberal, and social spirit of European constitutions.
It would be simplistic to affirm the principle of “one law for all,” to dismiss as inadmissible every instance of exception, and to leave religious minorities to govern their own affairs, until events or circumstances call forth public opinion arousing reprobation or open condemnation of practices unacceptable to morality or law. Instead, I believe that a problem of this magnitude should not be denied, but managed and governed.
The application of Sharia law provides the subject to make some considerations of a strictly legal nature regarding the framing of provisions of a religious matrix in the system of sources of law of a secular and democratic State. In particular, the purpose of the following brief considerations is to draw attention to the legal and jurisdictional instruments available today, suitable for governing the phenomenon that, in fact, characterizes many European legal systems: a legal pluralism of a religious matrix.
The modalities according to which Sharia law can be applied in the territory of a democratic and secular State are substantially the following.
A first way, which we could say is founded on the incorporation of Sharia law into the legal system of the State, is offered in Europe by the experience of Greece, where the application of Islamic law is established for Thracian citizens of Muslim faith, before a Mufti who is part of the judicial order of the Hellenic Republic. However, the application of Sharia law is left to the choice of the parties to the dispute; in fact, they have the right to alternatively invoke the application of ordinary civil law, instead of Islamic law.
A second way is based on the rules of private international law.
A third way is offered by religious-based arbitration.
A fourth is based on the prudent appreciation of the judge who, when resolving disputes between Muslims, has the faculty to formulate interpretative solutions aimed at a reasonable settlement between State law and Islamic law (reasonable accommodation).
Finally, there is a way without any form and officiality with respect to the legal system; this is the para-jurisdictional practice of the so-called Sharia courts.
The following brief considerations intend to frame the phenomenon of the application of Sharia law in democratic systems of Western origin with reference to the system of sources of law.
The approach uses the categories of the Western legal tradition; the aim is to measure in formal terms the position and role of Sharia law in the European legal systems, because it represents an exception with respect to the secular legal system. The assumption of this analysis is the effectiveness of Islamic law within the territory of the state within the Western legal tradition: the different ways through which Sharia law enters the arena of legal norms observed by civil society have the common denominator of the effective application.
Within the framework of the system of sources of law, Sharia rules are classified as normative facts; the application of these rules – depending on the modalities and the context – is the result of a recognition or a mobile referral by the dominant legal system, which ascertains their existence and admits their applicability. The State legal system, therefore, gives them an ex post legitimacy; that is, subsequent to their formation.
In fact, these rules are created outside the procedure of making legal norms established by the constitutional system and, as such, they are not originally valid. They can acquire validity if recognized by the state legal system.
In the case of Greece, which is inspired by the Ottoman millet model, Sharia rules could be considered as extra-ordinem sources of law: rules that arise from an origin other than the State and are procedurally extraneous to what is established by the state regulation on production of the rules. However, they are recognized as capable of producing legal effects when resolving disputes before a judicial authority; albeit with a special type of effectiveness, being limited to a fraction of the State’s territory, to a specific component of the population, and to certain subjects. It remains within the faculty of the parties to invoke or not the application of the Sharia and, therefore, to appeal to the Mufti or the civil court.
With reference to the discipline of private international law that involves the application of Islamic law or in the case of religious-based arbitration, it seems once again possible to refer to the category of extra-ordinem sources of law: Normative sources that escape the norms of the state legal system and yet are admitted to produce effects in its own space by virtue of the laws of the State itself, which authorize their application (based on the discipline of private international law and the discipline of arbitration).
The authorization to produce effects implies the recognition of those religious rules, but the primacy of state norms and of the principles and values established by the constitutional charter remains. Therefore, state legislation authorizes the application of religious rules with a sort of mobile referral to the right of choice by the parties, without renouncing to exercise the dominion according to the conception of the state monopoly on the production of legal rules. But with reference to arbitration, it must be remembered that the mechanism through which the primacy of the State legal system can be asserted is not automatic; rather, it is left to the initiative of the parties who wish to report any conflict between the arbitration decision and the supreme principles of the legal system, which cannot be derogated from by the will of the parties. For the rest, the parties invoking an alternative law to that of the State aspire to settle the question on the basis of a discipline other than the one in force; they aspire to a treatment in derogation.
The rules applied in arbitration are therefore an alternative to legal sources, and if they conflict with them, they will prevail at least as long as one of the parties does not denounce their irremediable illegality in front of state court. The prevalence of the rules chosen by the parties over the law in force has its source of legitimacy in the will of the parties, which produces effects according to what is established by the law of the State. The State authorizes the application of those rules on the basis of a sort of “mobile deferral” by which the state system makes applicable normative facts in its territory, which are outside the framework of legal sources, in a stable and automatic manner.
With regard to the function performed by the arbitral tribunals, Salvatore Satta’s statement appears today more relevant than ever: “It is a gross error to think that the parties, through arbitration, would usurp a function that is proper and exclusive to the State, which is jurisdiction, and to deduce that arbitration is legitimate only to the extent that the State itself recognizes it. It is not exclusive to the State to decide disputes but to enforce rights protection.”
The legitimacy of the arbitration is based on the will of the parties; the legislation applied is in competition with, and alternative to, the legislation of the state system; the protection of rights which are beyond the availability of individuals remains firmly in the hands of the State.
Therefore, these normative facts (legal norms produced outside the legal system and lacking the formal requirements that would make them recognizable as legal sources within the same legal system) enter the current regulatory system and contribute to forming the same legal system in force by virtue of a mobile deferral or an authorization that makes them applicable to the case in question also by way of derogation from the ordinary rules.
The mobile deferral does not lead to an incorporation of extraneous rules within the legal system. In reality, a legally relevant fact is determined, which is destined to end with the same act of application to the case in question.
The case of the resolution of disputes between Muslims before Sharia courts appears quite different. It can be defined, from the point of view of the host state, as a completely unofficial practice. On the formal level, the procedure that is established before these courts responds to internal provisions, naturally inspired by the principles of the Sharia. Therefore, it presents a formality extraneous to the legal system of the State, although a “form” does exist.
It does not seem that Islamic law applied in these contexts can be placed in the category of extra-ordinem sources since the factual and a posteriori recognition of its norms is also completely absent.
Numerous extra-juridical factors affect the effectiveness of these religious norms and the effects they produce on individuals. The social context, the primacy of the personality of the law, the moral and religious pressure, and the threat of social sanctions make those norms imperative for the members of the Islamic community; the conviction of the obligatory nature of those norms and of their pre-eminence over the norms of the State is widespread among them.
In the context of the activities carried out by the Shari’a Council for the benefit of Muslims, therefore, the provisions of Islamic law applied to disputes constitute legal norms by virtue of the principle of effectiveness and their “justiciability,” in the sense of suitability to be used in a jurisdictional seat for the resolution of disputes.
Those rules are invalid for the state legal system. From the perspective of the state legal system, in fact, the legal rules take on validity not so much because they are effective, but because they are produced in the forms provided for by the law itself. On the other hand, when the creation of a rule complies with the legal production of rules dictated by the legal system, the validity of that is recognized and its effectiveness is assumed.
In general, the fact that the legal system establishes the rules on the production of law does not exclude that other rules may be applied in that same context even if produced in discrepancy with respect to the formal conditions. Such norms lack the elements of recognizability as norms and therefore formally invalid.
However, by virtue of the principle of effectiveness, they are observed in place of the legally approved norms with which they conflict. In reality, therefore, they implicitly innovate the legal system. The capacity of these normative facts to create legal rules, therefore, cannot be detected ex ante due to their formal invalidity; on the other hand, it is detectable ex post, as a consequence of the “effectiveness” deriving from their application. This is the moment in which the legal system recognizes them as extra-ordinary sources: the obedience given to those rules.
 S. Satta, Diritto processuale civile, C. Punzi ed., (9th ed 1981), p. 847; see also Id., Contributo alla dottrina dell’arbitrato (1970).