Europe and the Ummah: A Legal Inquiry on the Condition of the Muslim Community in a Transforming Continent

Abstract

This paper is divided into two sections. I. The first is a picture of the reality, and describes the condition of blatant discrimination of many Muslim Communities in Europe, presenting the emblematic example of the places of worship in Italy. The case study looks at some recent decisions of the Italian Constitutional Court. The Court declared unconstitutional certain norms of two regional laws approved by the Lombardy region (2/2015) and by the Veneto region (12/2016) which provided for very strict conditions for the opening, approval and use of mosques. In particular, the Court declared unconstitutional norms where – for the building of places of worship – they introduced certain conditions for groups with an agreement with the State and different conditions for those without. Moreover, the Court declared unconstitutional the principle of using only Italian for all those activities of common interest for religious services. The basic assumption of the first section is that the current discrimination is the result of antimigration sentiments and prejudices as well as the consequence of the cultural function of religious freedom in the European nation-state. II. The second section is a “should-be” analysis, and explores the potential of contextualizing the Islamic legal culture in the European institutional environment. This experiment, that must be directed by scholars and experts, and is necessary for three reasons. 1. The first is a matter of fact: Muslims are today a relatively small minority in Europe, making up roughly 5% of the population. Yet, the Muslim share of Europe’s total population has been increasing steadily and will continue to grow in the coming decades. 2. The second is a legal argument: in the spirit of pluralism the “European Union”, as a new international entity, was built. “United in diversity” is the motto of the European Union, first came into use in 2000, and it should signify how Europeans have come together, in the form of the EU, to work for peace and prosperity, while at the same time being enriched by the continent’s many different cultures, traditions, languages, and religions. This paradigm is the frame where the accommodation of the Ummah, with her special characteristics, must take place. 3. The third is the address, political and cosmopolitan by nature, of generating a “virtuous circle” in the European legal jurisprudence melting the asset of the Islamic law with the European pluralist and democratic (?) spirit. The basic assumption of the second section is that the current situation of discrimination and marginalization of the Ummah in Europe should improve with a better understanding of the pluralistic vein of the Islamic law, when implemented by the pervasive and pragmatic function of the European theory of pluralism.