Page 1 of 2 12 LastLast
Results 1 to 20 of 27

Thread: Mythbusting: Germany applies Sharia Law!

  1. #1

    Default Mythbusting: Germany applies Sharia Law!

    Germany applies Sharia Law! You know, that evil, uncivilised Islamic law!

    No really, Sharia Law is applied in Germany for some areas of family and inheritance law for people who are citizens of Muslim states that follow the Sharia. This is the truth, no sarcasm. Obviously, this sort of thing results in a huge outcry among a lot of people. Sharia law? Isn't that the law of radical Islam? Doesn't that mean ignoring the German Grundgesetz (=Constitution)? Heck, when I first heard of Sharia Law getting applied in the UK in some cases a few years ago, I was a bit surprised and shocked as well.

    However, this is the perfect example of how a lack of knowledge and information, in combination with sensationalist media, can lead to unjustified outrage and hatred:

    The important question is: WHY does Germany (or the UK for that matter) apply Sharia law? Because Muslims are taking over? To appease Turkey? Completely false.

    The reason is a set of GENERAL PRINCIPLES OF LAW that has nothing to do with either Islam or the Sharia whatsoever. More accurately, the application of Sharia law for some topics of family and inheritance law is part of a completely standard and normal application of an area of law called "private international law", aka (in Common Law countries) "conflict of laws".

    While many people believe that every country only applies its own laws within its territory, this is a complete misconception. You have to differentiate between criminal law and civil law. Obviously states only apply their OWN criminal law. In other words: no cutting off hands for stealing bread because the Sharia says so. That is foreign CRIMINAL LAW and thus NEVER applied by another state.

    However, ever since about the 1800's, foreign CIVIL LAW (=contracts, tort, family law, company law, inheritance law etc.) might be applied, depending on the respective norms in the national system of "private international law" or "conflict of laws". Sounds complicated? It isn't really.

    Private international law essentially applies when the subject matter at hand (e.g. Mr. X wants to marry Mrs. Y) has a connection to a foreign country (e.g. Mr. X and Mrs. Y want to marry in Germany, but they are both French citizens). If that is the case, PIL has different "conflict rules" that decide which law applies IF a certain element is present. For example: there is an abstract rule stating that "if the involved parties share the same nationality, their capacity to marry is governed by the law of their shared nationality".
    Applied to our little case this would mean that Mr X and Mrs Y's capacity to marry would be decided according to FRENCH law because they are French citizens, despite them marrying in Germany. Fascinating, isn't it?

    That isn't unique to Germany btw. Basically every country in the world has its own unique system of "private international law" to decide (in a case with a connection to a foreign country) which law (e.g. French law, German law OR e.g. Sharia law!) a certain subject matter is governed by.

    In other words, the application of that evil Sharia law (in CIVIL matters) is really just the normal, boring consequence of the regular application of the PIL-rules which have been around (in Germany) for over a hundred years. Nothing to do with Islam whatsoever.

    But still, doesn't this mean Islam is abusing this to take over and impose their backwards stone age mentality on us??!!??""11!?? Nope. Countries don't just apply a foreign law completely blind to its effects or content. If foreign law is blatantly in violation of the German Constitution for example, that part of the foreign law is NOT applied, instead getting replaced with the respective domestic provision (German national law). This is why you cannot marry a second wife in Germany, even if you and your potential second wife are both from a "Sharia country".

    This example shows so well how a lack of education and information can lead to misguided hatred that lacks any basis in reality. "Sharia law" (within the constraints of the German Constitution, s. above!) getting applied in Germany is nothing special whatsoever, it's the same thing that happens on a daily basis in German courts with all kinds of funky national laws getting applied in civil matters, regardless of whether they are Peruvian, Canadian, Indian or Chinese. But sadly it shows that when French law or even say Chinese law are applied, nobody bats an eyelid (nor do the sensationalist media report it), whereas the application of the evil "Sharia law" immediately makes people think of 'Eurabia' and Muslims taking over.

    Y'know, sometimes there is no evil conspiracy at work but just the application of good 'ol laws that have been around for centuries.

    Important facts to remember: Surprisingly, countries do not only apply their own civil law in their own courts, but even foreign civil law if there is a sufficient connection to another country, based on an intricate set of "conflict rules"! However, this does NOT apply to criminal law (every country only applies its own criminal law). The application of Sharia law in Germany is nothing but the result of the boring and normal application of these conflict rules. Outrageous contents or effects of foreign laws are severely restricted by the "ordre public" (public policy, essentially) of every country, i.e. usually the Constitution.

    Thanks for listening.
    Last edited by Astaroth; December 23, 2014 at 02:32 PM.
    Curious Curialist curing the Curia of all things Curial.

  2. #2

    Default Re: Mythbusting: Germany applies Sharia Law!

    I am little confused by this. In the US at least something like marriage law is always governed by the local law. E.g. two male citizens of Minnesota could not get a marriage certificate in Kentucky, even if Minnesota law allows them to. Likewise, two male citizens of Kentucky could get a marriage certificate in Minnesota, but this would not be recognized when they returned to Kentucky.

    Inter-state marriage laws aren't recognized, much less international. The idea that two US residents with foreign citizenship could get married under any law other than the local one does not exist in the US to my knowledge.

  3. #3

    Default Re: Mythbusting: Germany applies Sharia Law!

    Quote Originally Posted by Sphere View Post
    I am little confused by this. In the US at least something like marriage law is always governed by the local law. E.g. two male citizens of Minnesota could not get a marriage certificate in Kentucky, even if Minnesota law allows them to. Likewise, two male citizens of Kentucky could get a marriage certificate in Minnesota, but this would not be recognized when they returned to Kentucky.

    Inter-state marriage laws aren't recognized, much less international. The idea that two US residents with foreign citizenship could get married under any law other than the local one does not exist in the US to my knowledge.
    It's just an example, it always depends on the exact conflict rules of the particular legal entity. It basically goes like this:

    1) Does the case at hand have any connection to a foreign country/entity (e.g. one of the parties [or both] is a citizen of another country or state; one of the parties is domiciled in another country or state etc.)? If no, regularly apply the law of the respective legal entity (usually this is national law, but e.g. in the US it's the respective state law). This is how most cases are handled.

    2) If the case does have some sort of connection to foreign law, it needs to be classified/qualified/characterised (these terms are synonymous): is it a matter of contract law? Is it related to inheritance? Family law? Does it perhaps have something to do with movable (~personal property) or immovable property (~real property)?

    3) Now, each of these areas of law (i.e. law of immovable property, family law, inheritance law...) has one or several "conflict rules" that decide (abstractly) which law is applicable in a particular case. Example: "Immovable property is governed by the law of the place where the property is situated (lex situs)". There can be a large number of these "conflict rules" and as a result, every possible area of law is governed by one of these rules.

    Those "conflict rules" are part of NATIONAL (or in the case of the US: state) law. In other words, each legal entity (=state/country) decides on its own "conflict rules" and they can differ from state to state or country to country. This means that it is possible that a state or country decides on the following conflict rule: "The capacity to marry is based on the law of the forum (lex fori)". The "forum" being the place where the court is situated. Another state might instead decide that "The capacity to marry is based on the law of the shared domicile of the two parties".

    But you have to be careful: often, there are different conflict rules for different aspects of one larger area of law. For example, it is quite common (at least in Common Law countries) that the CAPACITY to marry (i.e. how old you need to be, for instance) is governed by the law of that person's domicile, whereas the formal requirements of the marriage ceremony itself is governed by the law of the place where the marriage takes place (lex loci celebrationis). It is quite possible that Kentucky has laws stating that the marriage ceremony requires a marriage between a man and a woman. So even if the capacity to marry (e.g. how old man and woman need to be) were governed by the law of Minnesota, which Kentucky would apply in that case, the ceremony itself (and its requirements) would still be governed by the law of the place of the marriage ceremony, i.e. Kentucky law.
    Whether a marriage (same goes for court rulings) is recognised in another legal entity is a different question from the applicable law, s. below.

    Anyway, all these things depend on the conflict rules of the legal entity in question, which can theoretically differ widely from country to country or state to state, although there are usually similarities (e.g. immovable property tends to be governed by the law of the place where it is situated; this is a fairly common "conflict rule" in most countries).

    4) Once the subject matter at hand has been classified into one area of law and the correct "conflict rule" has been applied, we now know which domestic law the court (or other body) in question will apply, e.g. French law.


    -----


    However, there are obviously still other aspects to the problem: This obviously doesn't answer the question if a third country will necessarily recognise the decision in the case at hand. What this topic deals with is only the application of foreign law by a court. Whether the judgment gets recognised or respected elsewhere is a different problem.
    Curious Curialist curing the Curia of all things Curial.

  4. #4
    Denny Crane!'s Avatar Comes Rei Militaris
    Join Date
    Sep 2005
    Location
    Newcastle, England
    Posts
    24,462

    Default Re: Mythbusting: Germany applies Sharia Law!

    While its not a big deal and has no criminal jurisdiction it is still a route for enforcing discrimination against women in the UK and so I am sure is the same in Germany and therefore should be fought against.

    http://blogs.channel4.com/factcheck/...a-law-uk/18486

    It was immediately obvious that sharia discriminates against women and non-Muslims when it comes to the rules of inheritance.

    The note reads: “Male heirs in most cases receive double the amount inherited by a female heir of the same class. Non-Muslims may not inherit at all, and only Muslim marriages are recognised.”

    Critics say the society is effectively endorsing discrimination by publishing this advice, but the organisation denies this.

  5. #5

    Default Re: Mythbusting: Germany applies Sharia Law!

    Quote Originally Posted by Denny Crane! View Post
    While its not a big deal and has no criminal jurisdiction it is still a route for enforcing discrimination against women in the UK and so I am sure is the same in Germany and therefore should be fought against.

    So would a practical application of this be something this:

    A Persian patriach dies. His will leaves his 3 million inheritance equally to 3 children: daughter, muslim son, non-muslim son.

    The muslim son could then challenge the will and argue he should get at least 2 million, the non-muslim son should get zero and the daughter get at the most half of what he gets irrespective of the will itself?
    "Our opponent is an alien starship packed with atomic bombs," I said. "We have a protractor."

    Under Patronage of: Captain Blackadder

  6. #6

    Default Re: Mythbusting: Germany applies Sharia Law!

    @Denny:

    There are two ways of dealing with this, neither of which has anything to do with Sharia Law in particular:

    1) change the whole system of "conflict of laws" on a general level so England exclusively applies the lex fori (i.e. English law) in its courts. While seemingly simple and sensible, there is a multitude of reasons why this is a bad idea that I can't be bothered to explain here. In short, it'd lead to "forum shopping", it'd result in lots of rulings that aren't accepted by other countries etc. Feel free to look it up.

    2) while still applying foreign law as always, tighten up the "public policy" exceptions/control on the foreign applicable law. Again, this has to be done on an abstract and consistent basis.

    I'm not sure about the UK (a bit difficult with a lack of a codified Constitution and all etc.), but in Germany there's already quite a bit of scrutiny on any foreign law that is clearly in violation of the Grundgesetz, e.g. because it is discriminatory (Art. 3 GG).
    Curious Curialist curing the Curia of all things Curial.

  7. #7
    Comes Domesticorum
    Join Date
    Dec 2007
    Location
    Athenai
    Posts
    33,211

    Default Re: Mythbusting: Germany applies Sharia Law!

    The Muslims living in Eastern Thrace in Greece have been living under Sharia Law since 1923. So, it's not completely unimaginable.

  8. #8
    Denny Crane!'s Avatar Comes Rei Militaris
    Join Date
    Sep 2005
    Location
    Newcastle, England
    Posts
    24,462

    Default Re: Mythbusting: Germany applies Sharia Law!

    Well you are quite forgiven for not having a reference in English law but a lot of what you are saying doesn't make sense. I was being lazy in my first post because quite frankly I find this confusing a lot of the time.


    1. No idea what you are going on about with UK conflict of laws. There is only one law. There is the UK law that Sharia has to abide by. They act as mediation though step over the line into arbitration which requires supervision but they can not give any rulings. There is English Civil Law and English Criminal law. The Sharia has to abide by this the concern is that muslims are not often entering into this so called mediation voluntarily and abiding by it and not using the English courts when they have the right and opportunity.

    To quote parliamentary Under Secretary of State for Justice Helen Grant in a Committee hearing on this:

    "“… sharia law has no jurisdiction under the law of England and Wales and the courts do not recognise it. There is no parallel court system in this country, and we have no intention of changing the position in any part of England and Wales”."

    “… make it absolutely clear that they are not part of the court system in this country and have no means of enforcing their decisions. If any of their decisions or recommendations are illegal or contrary to public policy – including equality policies such as the Equality Act 2010 – or national law, national law will prevail all the time, every time. That is no different from any other council or tribunal, whether or not based on sharia law”.

    “Any member of any community should know that they have the right to refer to an English court at any point, especially in the event that they feel pressured or coerced to resolve an issue in a way with which they feel uncomfortable”.

    Now she is correct but the courts will recognise agreements made between parties as a result of arbitration which is where the need for supervision and regulation comes in. Also the fact that women are being forced into arbitration, or that people are attempting to live outside the laws and only through religious mediation leads them often to the breaking of civil law.

    So perhaps better leave the UK out of this? If you want to leave it in you should know I don't consider what you said relevant, I oppose it on the basis of I believe that this leads to women being discriminated against as muslims form communities and attempt to live within those communities outside of the regulations and the norms of British society including equal rights for women.

    That would be troubling I think, to anyone who respects our modern nationally held culture and beliefs and common law of equality and freedom from discrimination and a troubling trend over all in the muslim world to reject feminism and equality. This is not so much a legal matter except one of regulation.

    Admittedly, this is primarily a German thread so I'm happy to leave it there. As I don't know much about the German legal system at all being honest.

  9. #9

    Default Re: Mythbusting: Germany applies Sharia Law!

    Quote Originally Posted by Denny Crane! View Post
    Well you are quite forgiven for not having a reference in English law but a lot of what you are saying doesn't make sense. I was being lazy in my first post because quite frankly I find this confusing a lot of the time.


    1. No idea what you are going on about with UK conflict of laws. There is only one law. There is the UK law that Sharia has to abide by. They act as mediation though step over the line into arbitration which requires supervision but they can not give any rulings. There is English Civil Law and English Criminal law. The Sharia has to abide by this the concern is that muslims are not often entering into this so called mediation voluntarily and abiding by it and not using the English courts when they have the right and opportunity.

    To quote parliamentary Under Secretary of State for Justice Helen Grant in a Committee hearing on this:

    "“… sharia law has no jurisdiction under the law of England and Wales and the courts do not recognise it. There is no parallel court system in this country, and we have no intention of changing the position in any part of England and Wales”."

    “… make it absolutely clear that they are not part of the court system in this country and have no means of enforcing their decisions. If any of their decisions or recommendations are illegal or contrary to public policy – including equality policies such as the Equality Act 2010 – or national law, national law will prevail all the time, every time. That is no different from any other council or tribunal, whether or not based on sharia law”.

    “Any member of any community should know that they have the right to refer to an English court at any point, especially in the event that they feel pressured or coerced to resolve an issue in a way with which they feel uncomfortable”.

    Now she is correct but the courts will recognise agreements made between parties as a result of arbitration which is where the need for supervision and regulation comes in. Also the fact that women are being forced into arbitration, or that people are attempting to live outside the laws and only through religious mediation leads them often to the breaking of civil law.

    So perhaps better leave the UK out of this? If you want to leave it in you should know I don't consider what you said relevant, I oppose it on the basis of I believe that this leads to women being discriminated against as muslims form communities and attempt to live within those communities outside of the regulations and the norms of British society including equal rights for women.

    That would be troubling I think, to anyone who respects our modern nationally held culture and beliefs and common law of equality and freedom from discrimination and a troubling trend over all in the muslim world to reject feminism and equality. This is not so much a legal matter except one of regulation.

    Admittedly, this is primarily a German thread so I'm happy to leave it there. As I don't know much about the German legal system at all being honest.
    Look, I've actually studied Conflict of Laws in England. It's a thing, it exists in England (England is actually the right term here, not the UK, because the different countries within the UK all have their own legal systems), see e.g.: http://www.lse.ac.uk/resources/calen...2014_LL212.htm [just a random example, I've never been to LSE].

    Now granted, I'm not quite sure whether the English conflict rules ever lead to the application of Sharia law because I haven't covered that topic in particular. However, English courts certainly do apply the law of other countries such as Germany or France (if the conflict rules dictate as much), one of the only limits being "public policy".

    That's why the statement by Ms Grant doesn't really contradict what I'm saying -- she states that "public policy" will prevail over any foreign law. This is exactly right, but it is 100% in accordance with what I've said: foreign law is applied (if the conflict rules dictate as much), but only to the extent that public policy allows it. Which is another reason why Sharia law isn't really a problem, even if it is applied by the proper courts: most of the parts of it that are blatantly incompatible with "public policy" (which obv is a bit harder to define for England due to the lack of a codified constitution) are not applied anyway, even if Sharia law is *technically* applicable.

    ----

    However, there is one important difference between Germany and England w/ regards to "conflict of laws": in Germany, the courts have to consider the application of foreign law by themselves if the subject matter requires it. In contrast, in England foreign law needs to be "proven", i.e. one of the parties has to "request" it to be used. This boils down to the general system of English courts which require the parties to present all the facts and law (!) they want to be considered, whereas German courts consider the law by default (i.e. the parties only have to prove the facts).

    But aside from that, English civil courts do apply foreign law all the time as long as 1) at least one party requests it, 2) most importantly the relevant English "conflict rule" requires it and 3) it is in compliance with public policy.
    Curious Curialist curing the Curia of all things Curial.

  10. #10
    Denny Crane!'s Avatar Comes Rei Militaris
    Join Date
    Sep 2005
    Location
    Newcastle, England
    Posts
    24,462

    Default Re: Mythbusting: Germany applies Sharia Law!

    Quote Originally Posted by chilon View Post
    So would a practical application of this be something this:

    A Persian patriach dies. His will leaves his 3 million inheritance equally to 3 children: daughter, muslim son, non-muslim son.

    The muslim son could then challenge the will and argue he should get at least 2 million, the non-muslim son should get zero and the daughter get at the most half of what he gets irrespective of the will itself?
    Yes this is exactly what happens - in an entirely non legally binding court but once agreed to can become legally binding as a result of an accepted contract between two parties. The two wronged parties should of course refer to English Civil Courts and Laws but often the problem is they are pressured not to.

    Quote Originally Posted by Astaroth View Post
    Look, I've actually studied Conflict of Laws in England. It's a thing, it exists in England (England is actually the right term here, not the UK, because the different countries within the UK all have their own legal systems), see e.g.: http://www.lse.ac.uk/resources/calen...2014_LL212.htm [just a random example, I've never been to LSE].

    Now granted, I'm not quite sure whether the English conflict rules ever lead to the application of Sharia law because I haven't covered that topic in particular. However, English courts certainly do apply the law of other countries such as Germany or France (if the conflict rules dictate as much), one of the only limits being "public policy".
    Wheyhey! Turns out that the Common Agricultural Policy is also a thing, the Moon is also a thing as is the chocolate starfish.

    Care to tell me why its relevant to Sharia and the UK?

    That's why the statement by Ms Grant doesn't really contradict what I'm saying -- she states that "public policy" will prevail over any foreign law. This is exactly right, but it is 100% in accordance with what I've said: foreign law is applied (if the conflict rules dictate as much), but only to the extent that public policy allows it. Which is another reason why Sharia law isn't really a problem, even if it is applied by the proper courts: most of the parts of it that are blatantly incompatible with "public policy" (which obv is a bit harder to define for England due to the lack of a codified constitution) are not applied anyway, even if Sharia law is *technically* applicable.
    Sharia isn't a foreign law in respect to how it is applied in the UK as they exist as courts not operating in any aspect of any jurisdiction internally or externally as the individuals acting in the capacity of the court aren't appointed by anyone. This is mediation and arbitration.

    Are you sure you've studied this? It doesn't sound like it. All of this stuff about not having codified laws has nothing to do with this either, the establishment of our law is quite clear and these people are not acting within it either as participants of English Courts or the application or judicial capacity of a foreign court.

    There is no technical application either, there is merely the ability of parties to submit to abritration and create agreements which is then enforced.



    But aside from that, English civil courts do apply foreign law all the time as long as 1) at least one party requests it, 2) most importantly the relevant English "conflict rule" requires it and 3) it is in compliance with public policy.
    Which has nothing to do with Sharia law in the UK. Notice you said this:

    English civil courts do apply foreign law

    English civil courts

    English civil courts

    I don't know if I need go on...bloody hell as ever a painful as conversation as I did not want. Perhaps to take my suggestion and stick to Germany, I will reiterate.

  11. #11

    Default Re: Mythbusting: Germany applies Sharia Law!

    You are confusing two topics: arbitration (i.e. going to "private" courts) and the regular court system. This thread is about the latter.

    The regular English civil courts apply foreign law -- this presumably (in theory) includes Sharia law, at least it does in Germany. Limit: English public policy.

    The "private courts" (arbitration) are obviously a different animal altogether. I assume you are talking about the "Muslim Arbitration Tribunals", which are essentially a type of non-official courts. However, these were introduced by the Arbitration Act 1996 and are unique to the UK. They are obviously bound by English laws as well and rely on the English justice system to enforce their rulings, so their power is limited.
    Btw, these Muslim Arbitration Tribunals (at least their existence) are by definition in accordance with English law, seeing that they were established by an English Act of Parliament.

    And since you guise lack a codified Constitution, that Act cannot be "unconstitutional", either.... although of course it could be repealed by Parliament. Which brings us back to my earlier point of lacking a codification.

    In any case, arbitration as a whole is not a particularly shocking or new thing, either. It is of course debateworthy if these Muslim Tribunals are a good idea or not, but it has little to do with regular courts applying foreign law (Sharia law in particular) or not. The latter happens regardless of these Muslim Tribunals, at least in countries like Germany.
    Curious Curialist curing the Curia of all things Curial.

  12. #12
    Denny Crane!'s Avatar Comes Rei Militaris
    Join Date
    Sep 2005
    Location
    Newcastle, England
    Posts
    24,462

    Default Re: Mythbusting: Germany applies Sharia Law!

    Quote Originally Posted by Astaroth View Post
    You are confusing two topics: arbitration (i.e. going to "private" courts) and the regular court system. This thread is about the latter.

    The regular English civil courts apply foreign law -- this presumably (in theory) includes Sharia law, at least it does in Germany. Limit: English public policy.
    Which is why I asked you to clarify. Now I'll need to see an example of sharia law from a foreign source being applied in English Civil Law which would of course directly contradict English Civil anti discrimination law so I'd be very interested.

    I am betting you can't find one. The Sharia Law and England isn't an issue in this case. Unless you can find it for me. And I do keep up with the law review etc and I've never seen it. Happy to be wrong as it would be interesting.

    The "private courts" (arbitration) are obviously a different animal altogether. I assume you are talking about the "Muslim Arbitration Tribunals", which are essentially a type of non-official courts. However, these were introduced by the Arbitration Act 1996 and are unique to the UK. They are obviously bound by English laws as well and rely on the English justice system to enforce their rulings, so their power is limited.
    And as far as I am aware the only time Sharia has ever been an issue in the UK.

    In any case, arbitration as a whole is not a particularly shocking or new thing, either. It is of course debateworthy if these Muslim Tribunals are a good idea or not, but it has little to do with regular courts applying foreign law (Sharia law in particular) or not. The latter happens regardless of these Muslim Tribunals, at least in countries like Germany.
    I didn't say it was. I said there are real concerns.

  13. #13

    Default Re: Mythbusting: Germany applies Sharia Law!

    I don't really have time to research right now nor proper access to Westlaw atm, but this case seems to indicate that Sharia law was taken into consideration:

    http://www.publications.parliament.u...22/leban-1.htm

    Of course the HoL ultimately refused to apply Sharia law -- but not because it was not the applicable law, but because it is incompatible with English "values", i.e. public policy. But again, I might be wrong here.

    Which again takes us back to what I said previously -- Sharia law is generally applied if it is the applicable law (again, not sure to what degree this actually applies in the UK), but public policy once again is the limit. The question is only how "strictly" public policy is interpreted or applied. The above HoL case seems to indicate that public policy is used to almost exclusively reject Sharia law, whereas in Germany at least parts of it are considered okay under (German) public policy.

    -----

    On a related note, I think I know why there are so few cases of Sharia law in the UK (in front of the regular courts): in Germany, one of the primary connecting factors as a part of "conflict rules" is NATIONALITY: i.e. in many "conflict rules", the law of a person's nationality is applied. In contrast, England often uses DOMICILE.

    This means that even if a Muslim is still e.g. a Lebanese citizen, he is usually going to be DOMICILED in England (why else would he go to court in England), i.e. despite his Lebanese citizenship English law will be applied from the get go, meaning that the question of Sharia law never arises.

    In contrast, Germany uses "nationality" as a connecting factor, meaning that a Lebanese citizen will be treated according to Lebanese law (i.e. Sharia law). Obviously this raises the question of German public policy in many cases.
    Curious Curialist curing the Curia of all things Curial.

  14. #14
    Denny Crane!'s Avatar Comes Rei Militaris
    Join Date
    Sep 2005
    Location
    Newcastle, England
    Posts
    24,462

    Default Re: Mythbusting: Germany applies Sharia Law!

    I think you may have misread this completely, it has nothing to do with the application of Sharia law at all but whether or not someone can stay in this country and Sharia law is being applied in her home country is a consideration as to whether it impacts humanitarian concerns as to whether or not this adds weight to her case for staying.

    sorry bud but I've had many a conversation on legal cases in the UK and the more you talk the less I think you understand English law. Pulling an example of an asylum seeker that just happens to mention Sharia law seems to me you just randomly googled it and took a leap of faith.

    Sharia law is generally applied if it is the applicable law (again, not sure to what degree this actually applies in the UK), but public policy once again is the limit.
    Example. You are talking . There are no examples. Where is Sharia law generally used? Sharia law anywhere it would be applicable will usually run counter DIRECTLY to English law which brings up major tremors in the law circles which I've yet to encounter. Now I asked for examples simply because I though holy , there is a big debate here that I've missed out on and I'd be happy to get into it as I like this kind of thing and you bring up that?

    Look just stop talking English law if you want to make things up and talk . It is incredibly frustrating. You mentioned Germany, UK was a sideline lets just dismiss it. I think that is better as I initially suggested because ffs.

  15. #15

    Default Re: Mythbusting: Germany applies Sharia Law!

    I'm not sure what the passive-aggressive posting is supposed to accomplish, it is frankly tiring to try to explain a basic area of law to you.

    Which again takes us back to what I said previously -- Sharia law is generally applied if it is the applicable law (again, not sure to what degree this actually applies in the UK), but public policy once again is the limit. The question is only how "strictly" public policy is interpreted or applied. The above HoL case seems to indicate that public policy is used to almost exclusively reject Sharia law, whereas in Germany at least parts of it are considered okay under (German) public policy.
    I've already said myself multiple times that I'm not sure about the exact application of Sharia law in English regular courts-- but if (big if, duh) it is the applicable law according to the relevant conflict rule then it *is* applied, period, subject to public policy scrutiny.

    Example. You are talking . There are no examples. Where is Sharia law generally used? Sharia law anywhere it would be applicable will usually run counter DIRECTLY to English law which brings up major tremors in the law circles which I've yet to encounter. Now I asked for examples simply because I though holy , there is a big debate here that I've missed out on and I'd be happy to get into it as I like this kind of thing and you bring up that?
    I suggest that you look up what "public policy" means.

    And I'll say it again:

    On a related note, I think I know why there are so few cases of Sharia law in the UK (in front of the regular courts): in Germany, one of the primary connecting factors as a part of "conflict rules" is NATIONALITY: i.e. in many "conflict rules", the law of a person's nationality is applied. In contrast, England often uses DOMICILE.

    This means that even if a Muslim is still e.g. a Lebanese citizen, he is usually going to be DOMICILED in England (why else would he go to court in England), i.e. despite his Lebanese citizenship English law will be applied from the get go, meaning that the question of Sharia law never arises.

    In contrast, Germany uses "nationality" as a connecting factor, meaning that a Lebanese citizen will be treated according to Lebanese law (i.e. Sharia law). Obviously this raises the question of German public policy in many cases.
    Last edited by Astaroth; December 23, 2014 at 06:07 PM.
    Curious Curialist curing the Curia of all things Curial.

  16. #16
    Denny Crane!'s Avatar Comes Rei Militaris
    Join Date
    Sep 2005
    Location
    Newcastle, England
    Posts
    24,462

    Default Re: Mythbusting: Germany applies Sharia Law!

    I do not post passively aggressively, I openly display hostility towards the utter debasement of a topic towards the realms of nonsense. This is what seems to be happening here.

    Well when we talk understanding basic understanding of the fundamental principles of law and you bring up the HoL mentiioning Sharia in another country as weighting against their case to stay in this country ya I'm gonna say you don't understand law at all> I seem to be gathering you study it? well I don't and I still say study harder because that just struck me as lack of basic reading what you post.

    Continue to speak on German law if you wish and how Germany interprets English rulings. But if you can't interpret the very basics of what an English case is about then I doubt you can interpret German law either.

    As for this case clearly they were applying for asylum and therefore they consider the situation in Lebanon as to how it would effect them, that has nothing to do with lebanese law effecting english law.

    Let me help your random searching Mr Google King! Here are the opinions of the case you posted, the case being on asylum and right to remain (nothing to do with Sharia this was merely a notation determining the conditions she might face on return)

    The case for allowing the appellant and her son to remain in this
    country on humanitarian grounds is compelling. That is shown by the
    facts that my noble and learned friend Lord Bingham of Cornhill has
    described. But the appellant does not wish to rely on the Secretary of
    State’s discretion. She claims that she has a right to remain here under
    article 8 of the European Convention on Human Rights read in
    conjunction with article 14. So the question is whether she has
    established that she and her son would run a real risk of a flagrant denial
    of the right to respect for their family life guaranteed to her by those
    articles if they were to be removed from this country to Lebanon
    http://www.peterjepson.com/law/SC2009%20Roshier.pdf

    Why is this case at all relevant or remarkable? Purely because the state of Sharia law in another country could accord mothers the right to apply for leave to remain in this country based on hostile conditions in another country, nothing to do with applicable laws of that country on this country.

    For s sake, if you want to pass yourself as educated in this field at least understand the you are talking about! My hostility is entirely towards having to repeatedly explain the obvious that could be read by anyone uneducated in law as to the specifics of the case you post to me. No special education required, furthermore a minutes googling pulls up what the case is all about and why it is relevant. It is entirely relevant to UK and with reference to ECHR about right to remain and asylum. It has nothing to do with Sharia except pertaining to the conditions in the host country of the person seeking to remain.

  17. #17

    Default Re: Mythbusting: Germany applies Sharia Law!

    I still don't understand what the you are rambling about. Jesus.

    In all your self-righteous posting, did you manage to read my post before starting your rant?

    Quote Originally Posted by Astaroth View Post
    I don't really have time to research right now nor proper access to Westlaw atm, (...)

    But again, I might be wrong here.
    It's a random case that while it might not play a big role in terms of CoL, it does indicate that Sharia law would largely not be accepted due to its incompatibility with English public policy.

    But it honestly doesn't matter because it has nothing to do with the topic at hand. Again, this is really basic stuff -- if a law is applicable, it is applied -- within the constraints of public policy. This applies to every single country in the world that has a "conflict of laws" system, including England.

    The main reason there are (compared to e.g. Germany) so few cases in which "Islamic law" is applied is because England uses "domicile" as a connecting factor rather than nationality, s. above.

    But there are actually various cases on polygamy that show that if all the CoL requirements are met, a polygamous marriage can be recognised in England.
    Curious Curialist curing the Curia of all things Curial.

  18. #18
    Denny Crane!'s Avatar Comes Rei Militaris
    Join Date
    Sep 2005
    Location
    Newcastle, England
    Posts
    24,462

    Default Re: Mythbusting: Germany applies Sharia Law!

    It indicates nothing of the sort. Basic reading comprehension for the win.

    So in other words you have no idea about UK law, want to comment on it, refuse to stop and have no applicable examples or seemingly a basic comprehension about it except one you repeatedly misunderstand despite a link I have posted clearly explaining how it is being interpreted.

    Right.

    I'm done. Much like your other topics it arrives at a standstill. This one is at least amusing.

  19. #19

    Default Re: Mythbusting: Germany applies Sharia Law!

    Quote Originally Posted by Denny Crane! View Post
    It indicates nothing of the sort. Basic reading comprehension for the win.

    So in other words you have no idea about UK law, want to comment on it, refuse to stop and have no applicable examples or seemingly a basic comprehension about it except one you repeatedly misunderstand despite a link I have posted clearly explaining how it is being interpreted.

    Right.

    I'm done. Much like your other topics it arrives at a standstill. This one is at least amusing.
    I have no idea what the your problem with me is, but that pointless vendetta is simply tiring and a waste of my time. Nobody forces you to read my topics or reply to them and I have no interest in your trolling posts here anymore.

    Now I'll be hoping for more of the sensible replies which others have managed to provide in here.

    But I have to say your incoherent, self-righteous rambling is particularly ironic when your post contains a complete lack of knowledge about the most basic areas of law:

    Quote Originally Posted by Denny Crane! View Post
    No idea what you are going on about with UK conflict of laws. There is only one law.
    Anyways, roll on. If you feel compelled to keep on trolling, that's your prerogative. I have zero interest in that aggressive nonsense that you are repeatedly spouting in here.
    Curious Curialist curing the Curia of all things Curial.

  20. #20
    Denny Crane!'s Avatar Comes Rei Militaris
    Join Date
    Sep 2005
    Location
    Newcastle, England
    Posts
    24,462

    Default Re: Mythbusting: Germany applies Sharia Law!

    Lacks the most basic areas of law?

    Waiting for a relevant example and not a complete misnomer. Come on you want to keep this going perhaps post a case that is even vaguely on topic?

    edit: And if your going to insult someone, saying ugh didn't have the time to find an example that wasn't stupid, is not an excuse.

Page 1 of 2 12 LastLast

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •