Press review: The application of foreign law in German courts
From time to time, flustered media articles diagnose the implementation of Sharia in Germany due to the fact that Muslim minorities have the right to experience German jurisdiction following their international private law. Jurist and Islamic scholar Mathias Rohe has already stated some time ago that the application of international private law is wrongly experienced as an intrusion in German law: “Firstly, it is important to notice: We let it in. Our legal system opens its door. It is not the international law sneaking in, it is us inviting it. And here is why: There are international legal relationships. Sometimes peole live here, sometimes there. They have to able to rely on what they once legally achieved and that they don’t lose this achievement just because they cross a border.”
Discussions on the subject appeared once again when the Higher Regional Court of Bamberg decided in May to legally recognize a marriage of a full-aged man with an under-aged girl that had been concluded in Syria. But does Sharia find its way in German courts? Mathias Rohe does not think so. As long as a German jurisprudence can handle contracts based on the Sharia without forfeiting its principles, applying the Islamic law can be a successful measurement against Islamic parallel justice: This way, migrants trust in German law could be strengthened by on the one hand respecting their cultural background and on the other hand explaining the roots of European legal systems. However, Rohe points out that most Muslims living in Germany are from Turkey. There, the Sharia has been banished from the legal system since 1926, when Turkey adapted the Swiss Civil Code. Hence, establishing Sharia courts in Germany would not even suit the biggest German minority. This would make a further Sharia establishment appear senseless, according to Rohe.
German legislation appears as the only integrative power. This is how Mathias Rohe puts it: “The German Constitution does not know any foreign or domestic religion. This is the most charming part of the secular state: It does not favor or disadvantage anybody. This is the tenet of our law.” However, Rohe has been indicating – even before a movement as Pegida started protesting against Muslim migrants in Germany – that there is a growing amount of people feeling unsatisfied when German legislation decides in favor of Muslim minorities. He detects a discrepancy between the existing legislation and its perception in the population.
In German courts, foreign law is applied regularly, for example in family law. Hence, foreign law that is shaped by Islam can also come to usage.
Articles on this subject can be found in the General-Anzeiger and in the MiGAZIN. More statements on the Sharia can be found in the transcript of the discussion round “Religions under debate”. Mathias Rohes detailed statement on international private law, limits of exercise of religion, the disctinction between religious and legal norms and the handling of polygamist marriages in Germany can be found on the homepage of the German Islam Conference.