(A2-20) Legal and Judicial Pluralism as an Answer to Normative Crises
The most visible legal expression of religious pluralisation is its normative reconstruction by the national legal system in the form of an at least partial acknowledgement of religiously influenced norms of behaviour. It may culminate either in an area-specific consideration of religious law by secular courts or in a sanctioning of religious courts’ decisions, which – area-specific in turn – become an alternative equivalent to the secular judge or rule out the reference to him completely. Legal pluralism which is institutional in such a manner has a long-standing tradition in the Islamic world, influencing the (secular) legal systems of Arab countries (and Israel) to this day. All over the world today, there are intense discussions whether – due to the religious pluralisation of the society, which is primarily felt to be critical – constitutional states should themselves resort to the concept of legal pluralism or whether, quite to the contrary, they should cut back the pluralistic elements – which have long existed in, for example, the so-called private international law – in order to refuse those judgments of religious norms which are felt to be problematic, such as the Islamic šari’a, any space in the national legal system.
Following project C4 The Ecclesiastical Jurisdiction of Religious Minorities the approach of which had been primarily historical, research will now focus on the normative respectively guided by the sociology of law question as to the extent to which the institutionalisation of a religious jurisdiction – in a broad sense – may be understood as a specific legal reaction to the phenomenon of multi-religiousness and, in particular, as a reaction to the accompanying crisis of the hitherto established normative order. This is what the previous results of the legal historical and the – sociologically informed – legal comparative investigations suggest in several respects: the results of the first project stage demonstrate first of all that, from an internal perspective, the utilisation of ecclesiastical jurisdiction is forced or at least demanded either if the internal coherence of the religious group suffers from secular or rival religious courts being appealed to, or if one’s own religiously influenced order of norms is felt to be inferior, accordingly losing normative power. Particularly in view of the first findings, the investigation should later also focus on processes of internal pluralisation and differentiation of religious groups, in which the role respectively the perception of the sexes requires particular attention.
It is evident in turn that, specifically in the current “Western” constitutional orders, the discussion about the concept of legal pluralism – however it is spelled out in greater detail – receives considerable impulse from the unease stemming from the fact that the integration of Islam into the secular legal order is about to fail. Particularly in the Federal Republic, this debate also involves a tangible crisis of the previous normative foundation of the relationship of the state and the major Christian churches. The questions “Extension of the law regulating the relationship between state and church to Muslim organisations” and “Transition from the law regulating the relationship between state and church to the constitutional law on religion” represent two sides of the same coin.
In practice, the project will first ascertain from a comparative legal perspective how the normative order of such legal pluralism is organised de lege lata in selected countries of the Western constitutional tradition (Federal Republic of Germany plus the USA, Great Britain and Canada) as well as of the Middle East (Israel, Egypt, Jordan and Lebanon). Subsequently, it will be discussed whether such pluralisation de lege ferenda is permissible or even required by clauses of the constitutional or international law. Against the backdrop of the first project stage’s results, it needs to be asked from both perspectives whether corresponding institutionalisation processes or attempts may be interpreted as an appropriate reaction to normative crises induced by pluralisation.