TayoBlog

Recently, a German Judge was removed from a case because she invoked the Sharia in her argumentation in a divorce case. She turned down the request by a Moroccan-born woman for immediate divorce on the grounds of physical abuse by her husband.
She argued that the woman should have expected this treatment when she got married according to the Sharia. In support of her decision, the honourable judge Christa Datz-Winter cited verse 34 of chapter 4 of the Qur'an.
German public opinion was swift, loud and clear. There was only one law that operated in Germany, some said. Others lamented the deterioration of life in Germany, brought about by those who brought the Sharia with them. Multiculturalism had definitely gone out of hand, was another response.
The reaction reflected the growing wave against multiculturalism in Europe. In the legal meaning of this trend, judges used to extend their analysis to accommodate the norms and values of immigrant cultures. In a spirit of inclusivism, judges went beyond German law in order to arrive at a more just resolution of conflicts.
The application of this principle in this particular case is difficult to understand. Why would a judge acknowledge the presence of an abusive relationship, and then chose to cite a so-called cultural norm to ignore the urgent application? Why cite the verse as argument? It is difficult to see how justice was being extended in a spirit of multiculturalism.
This approach can hardly count as a reflection of a multicultural policy. It spells rather its deliberate death by the judge, and more so by the public outcry that followed. The discussion of the case certainly has put it among many public conflicts and disputes over Islam that regularly appears on the front pages of European newspapers. Aspects of Islamic texts, thought and life are presented for public debate and most often for public rejection and parody.
This particular incident is worthy of deeper reflection, both for its own merit as well as its broader significance for the debate about culture in societies.
The judge clearly thought that a verse cited from the Qur'an was an uncomplicated assessment of Moroccan culture and Islamic law. In her view, there was a direct correlation between a text, or a part thereof, and a complex culture and society. One did not need to understand a person and her social context. One only needed to read a book or its translation. And the citation of the verse was sufficient evidence against the woman's plea.
This clearly Orientalist opinion is hard to believe in the light of almost three decades of cultural criticism since Edward Said wrote Orientalism in 1978. He warned against the tendency to reduce the complexity of a culture simply by looking at its haloed fundamental texts. Such an approach tended to depict the static nature of non-Western cultures through the static nature of their texts.
But Said also alerted us to the political project that lay behind the Orientalist project. The presentation of the Oriental despot, the Oriental female victim and many other tropes was a foil for international power and hegemony. In Europe today, through the last few decades of migration, the enemy has become much too close. And the public debate about Islam has taken up Orientalism's tools to keep the immigrants in their place. In this sense, the usefulness of Orientalism is not surprising.
But the case went beyond the opinion of the judge and the predicament of the case at hand. The advocate representing the applicant chose to make a public comment on the judge's decision. While the aggrieved woman herself protested that the judge's views were quite wrong, and conflicted with her own understanding of the Sharia, the advocate raised the alarm of the possible threat posed by the Sharia to the German constitution. And it was not long before the public debate turned around the horror of Germany under Islamic law! The German constitution was under threat. Germany might even soon be ruled by Sharia law. This was yet another occasion for European public opinion to vent its fears and frustrations on Islam out there, and Islam in their midst.
But this issue raised another aspect that Said's book did not deal with extensively. The judge also seemed to say that Muslim women, even if abused, must live by the culture that they had chosen! The woman of Moroccan origin should have known what Moroccan and Islamic marriages were all about!
The judge's response reminded me of something that has happened repeatedly in South African history. In one such incident, Pamela Scully analyzed a reported rape in George in 1850. The accused was sentenced to death for reportedly raping a respectable white woman. When it later turned out that the victim was not white, but like the alleged rapist, "a Bastard coloured," the sentence was commuted to hard labour. The respectability or otherwise of the victim needed no assessment.
The colonial laws applied only to respectable white women. And the "Bastard coloured" woman could not hope for its protection. Like the racism of the 19th century, the Sharia of Muslims acted as a foil to put women beyond the norms of German laws and ethics. Since the Sharia over-determined the persons living in its wake, its subjects stood outside of German law and norms.
While the public rejected the judge's decision, it also confirmed the place of the Sharia in relation to Germannness and Europeanness. Public opinion confirmed the judge's decision in a way that even she had not intended. She did not reject the grounds for divorce on account of the Qur'an. She had only turned down the request for an immediate divorce. When the matter became public, however, and even extended beyond German borders, Sharia was framed as the antithesis of German law in particular, and Western law in general.
And Muslims could not seek the protection of the latter. In an interview, the woman protested that the judge's understanding of Islam was totally false. German Muslim opinion also quickly came out in her support, and against the judge. But for the German public, it was simply another demonstration that Islam had no place in Europe.
Does this mean that the particular verse of the Qur'an, or Sharia values formulated on its basis, are not subject to scrutiny? Far from it! But one cannot help noticing how culture and public opinion are re-creating a new Orientalism, perhaps even a new racism.