2021-03-05

Shari’a in Contemporary
Western Societies
Presentation for:
Religion and Politics in the Global World
James T. Richardson, J.D., Ph.D.
Emeritus Professor of Sociology and Judicial Studies
University of Nevada, Reno

Outline of Presentation
• Legal pluralism
• What is it?
• Why is it important?
• Shari’a in western societies
• Role of the legislatures and courts
• New laws dealing with Islam and Shari’a
• “Judicialization of politics” in general
• “Judicialization of religious freedom”
• Courts dealing with Islam and Shari’a: examples of recent decisions from
ECtHR suggesting a change of approach

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Legal Pluralism
• When two or more legal and normative systems share the same
geographical space
• Complex, multi-faceted, and controversial concept
• Sally Merry: “classical” (colonial) legal pluralism and “new” legal pluralism
found in all modern societies
• Brian Tamanaha: Medieval period, colonial, and modern examples; critical
of concept but expands it greatly with his work
• Paul Berman: “global” legal pluralism forces “hybrid legal spaces” in world
of over-lapping normative communities
• Legal pluralism is of growing importance in contemporary world
with modern means of travel and communication

Explaining Legal Pluralism

• Characteristics of legal and judicial systems
1. Pervasiveness (How encompassing?)
2. Centralization (versus decentralization)
3. Type of legal system (Adversarial or inquisitorial?)
4. Autonomy of the judiciary (Subjugated to other institutions or
independent?)
5. Normative role of the judicial system (Does it enforce norms and
values of those in power or focus on constitutional and statutory
protections of human and civil rights?)

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Other Considerations
• Characteristics and history of a society
1. Religious and ethnic diversity, amount and type
2. Cultural values concerning tolerance
3. Constitutional provisions and statutes concerning religious
freedom, and enforcement mechanisms of provisions
4. “Strong state” important, but not sufficient
5. Hierarchies of religious and ethnic groups, formal or informal, play
key role

Sociology of Legal Pluralism:

Issues and Concerns

• How does each variable impact development of legal pluralism, and

how does legal pluralism impact various human freedoms and civil
and human rights?
• Much research is needed to answer questions
• Does legal pluralism undercut concept of shared citizenship
necessary for a functioning society?
• More research is needed on this important question
• Major concern about definition of freedom – individual or group
oriented – because legal pluralism may favor the group over the
individual
• Very important political and empirical question

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Cautions about Shari’a in Western Societies

• Shari’a is not a monolithic set of specific laws about which all agree
and which all Muslim societies or groups within non-Muslim
societies seek to implement
• Many Muslims who have immigrated to or were born in Western
societies have rejected Shari’a as implemented in former society
and prefer more open and flexible versions of Islam
• Shari’a evolves, depending on the context; may be quite different
among Muslim majority societies as well as in societies where
Muslim minority groups reside

Legislative Developments
• Many western societies have allowed development of Islamic finance and
food regulation (halal) practices
• But many western nations have experienced efforts to pass legislation
designed to manage religion in general and sometimes to deal specifically
with Islam and Shari’a
• United States: battles over Shari’a in some states and implications of new federal
laws (ironies of Religious Freedom Restoration Act and Religious Land Use and
Institutionalized Persons Act)
• “Moral panic” about Shari’a in Canada, changes in 1991 Arbitration Act
• U.K. accepts Islamic financial arrangements
• Australia anti-terrorism laws post 9/11 aimed at Islam
• European efforts to place limitations on expressions of Islam (especially France)
• Russian post 9/11 anti-extremism laws used against Islam (and other religions)
• Germany issues concerning food preparation, circumcision, finance

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Judicial Involvements
• “Judicialization of politics”: What is it and why does it occur?
• Possible in a tripartite arrangement of government with executive, legislative, judicial
branches operating somewhat independently
• When executive and legislative branches of government cannot agree or choose to avoid
dealing with controversial matters, those issues may be left to the courts to decide
• This way of handling difficult issues can work when the judicial system is respected by
other societal institutions and political leaders, and has a reasonable degree of
independence and autonomy
• “Judicialization of politics” is increasing in many societies in the contemporary
world (but not in authoritarian regimes where no independent judicial system
exists, such as Iran, Russia, China)
• “Judicialization of politics” promoted by transnational legal systems such as
European Court of Human Rights or other such systems, if granted authority
over individual nations

“Judicialization of Religious Freedom”

• Religion is often a controversial issue in many modern societies, leading
to religious matters being increasingly addressed in the courts
• Many western nations have some kind of “Supreme Court” or a Constitutional
Court that is outside regular court system, but which has ultimate say on major
issues (including management of religion)
• Many western nations are also part of international bodies that have some judicial
functions (United Nations, Council of Europe’s European Court of Human Rights,
European Union’s European Court of Justice)
• Often (but not always) “judicialization of religious freedom” leads to an
increase in religious freedom for individuals and groups within a society
or group of nations (such as the Council of Europe)
• Islam has sometimes been an exception in some western nations

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European Court of Human Rights Cases

dealing with Islam and Shari’a
Is the Court’s approach to Islam and Shari’a evolving?
• Refah Partisi and Others v. Turkey (13 Feb., 2003)
• Limitations of head coverings of Muslim women: SAS v. France
(2014), Dahlab v. Switzerland (2001), Sahin v. Turkey (2004), and
Ebrahimian v. France (2015)
• But see some recent decisions concerning Islam by the ECtHR
• Ibragim Ibragimov and others v. Russia, August, 2018
• Molla Sali v. Greece, Dec., 2018
• E.S. v. Austria, Oct. 2018.
• Hamidovic v. Bosnia and Herzegovina, December, 2017

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Conclusions
• Legal pluralism is an increasing feature of many contemporary
societies, especially western societies
• There are some important issues concerning long term
consequences of legal pluralism
• Shari’a has become very controversial in a number of western
societies
• Some societies attempt to restrict Islam and Shari’a, while others
appear to be making efforts to accommodate
• Longer term outcome in western societies is not clear

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References

• Aitamurto, Kaarina. (2019). “Discussions about indigenous, national and transnational Islam in Russia”. Religion, State & Society
47:2, 198-213.
• An-Na’m, Abdullahi Ahmed (2008). Islam and the Secular State. Negotiating the Future of Shari’a Cambridge, Mass.: Harvard
University Press.
• Bakht, Natasha (2006). “Were Muslim barbarians really knocking on the gates of Ontario? The Religious Arbitration
Controversy- Another Perspective”. Ottawa Law Review 40: 67-82.
• Berman, Paul S. (2007). “Global legal pluralism.” University of Southern California Law Review 80: 1155-1237.
• Meerschaft, K. and S. Gutwirth. (2009): Legal Pluralism and Islam in the Scales of the European Court of Human Rights: The
Limits of Categorical Balancing, in E. Brems (ed.), Conflict between Fundamental Rights. The Hague: Intersentia, 431–462.
• Merry, Sally E. (1988). “Legal pluralism.” Law and Society Review 22: 869-901.
• Possamai, Adam, J.T. Richardson, and B.S. Turner (2014).The Sociology of Shari’a: Case Studies from around the World. New
York: Springer.
• Richardson, J.T. (2011). “The social construction of legal pluralism.” Democracy and Security. 7(4), 390-405.
• Richardson, J.T. (2014). “Contradictions, conflicts, dilemmas and temporary resolutions: A sociology of law analysis of Shari’a in
selected western societies”. In A. Possamai, J.T. Richardson, and B.S. Turner (eds.).The Sociology of Shari’a: Case Studies from
around the World, 237-252. New York: Springer.

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References
• Richardson, J. T. (2015). “Managing religion: The judicialization of religious freedom”. Journal for the
Scientific Study of Religion 54(1): 1-19. Presidential Address, at 2014 annual meeting in Indianapolis.
• Richardson J.T. (2019) “Religious freedom in flux: The European Court of Human Rights grapples with
ethnic, cultural, religious, and legal pluralism.” Changing Societies and Personalities 3(4): 303-318.
• Richardson, J.T. and B. McGraw (2019). “Congressional efforts to defend and extend religious freedom and
the law of unintended consequences”. Religion – Staat – Gesellschaft 20:13-29.
• Richardson, J.T. & V. Springer 2013). “Legal pluralism and Shari’a in Western Societies: Theories and
hypotheses”. In W. Sullivan and L. Beaman (eds.), Varieties of Religious Establishment, 201-218.
Burlington, VT: Ashgate.
• Tamanaha, B, (2009). “Understanding legal pluralism: Past, to present, local to global”. University of
Sydney Law Review 30: 375-411.
• Turner, Bryan S. (2001). “The erosion of citizenship”. British Journal of Sociology 52 (2): 189-209.
• Turner, B.S., and J.T. Richardson, (2013). “Shari’a and legal pluralism in the United States”. In M.S. Berger
(ed.), Applying Shari’a in the West, 47-64. Leiden: Leiden University Press.
• Turner, B. & J.T. Richardson, (2014). “The future of legal pluralism”. In A. Possamai, J. Richardson, and B.
Turner (eds.), The Sociology of Sharia: Case Studies from around the World, 305-313. New York: Springer.

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