The burgeoning literature on Muslims in the West, often engaged in rather static comparisons of citizenship regimes, national identities, immigration and integration policies, and church-state relations, has long ignored the legal dynamics of integrating Islam. With unerring instinct for major research trends and public concerns, Christian Joppke and John Torpey have now written a thought-provoking and agenda-setting book on the judicial politics of Muslim accommodation. A paired transatlantic comparison of France and Germany, Canada and the United States, the book's major argument is that, popular hostility against Islam notwithstanding, “liberal institutions have proved remarkably elastic in accommodating a religion that, judged by its worldwide politicization, may pose more of a challenge to liberal societies than others” (p. 139).
The argument is first explored in the Western European context where accommodation proceeded both by protecting individual rights to religious freedom and by incorporation into historically contingent church-state arrangements. In Chapter 2, the authors discuss liberalism's limits to exclusion in a vivid narrative about the French burka prohibition, showing that an electorally driven initiative faced seemingly insurmountable constitutional hurdles because legal experts saw laïcité, human dignity, and public order as insufficient reasons to restrict individual rights to religious freedom. Although such hurdles were tellingly overcome by political will, the French case confirmed that legal discourse was a “pivotal resource in the process of integration” (p. 47). Chapter 3, the most comprehensive one in its coverage of legal scholarship, case-law, and policy outcomes, further illustrates the individual rights track of integration with court rulings on Muslim claims for mosque building, ritual slaughter, and exemption from co-educative sport lessons in Germany. However, the authors' major aim actually is to assess liberalism's limits of inclusion. They argue that including Islam into existing corporatist arrangements, e.g., by granting status as Körperschaft des öffentlichen Rechts and offering Islamic instruction in public schools, had characteristically proceeded at slower pace and more by political pragmatism than principled judicial intervention.
Among the North American immigration countries where Muslims have come with greater human capital and in smaller numbers than in Europe's post-colonial and guest-worker context, Canada (Chapter 4) is portrayed as a case that shares a history of quasi-established churches but stands out by its professed (liberal) multiculturalism. The authors cite Ontario's debate about Sharia-based arbitration courts, Quebec's controversy over the Bouchard/Taylor report on “reasonable accommodation,” and the proposal of Bill 94 to make the point that once protection was claimed for presumably “illiberal practices,” notably in gender relations, the individual rights core of liberalism constrained multicultural recognition (p. 112). The United States (Chapter 5) serves, as it were, as a negative case where accommodation of Islam has, despite post-9/11 distrust, not met substantial resistance, thanks to free exercise and nonestablishment jurisprudence. It may seem a digression that this chapter also summarizes Islamic scholarly views of how to live as a minority, but it does make explicit the book's major premise—that Islam constituted a particular challenge to liberal democracies.
The short, yet well-organized and elegantly written book succeeds in canvassing a wide-ranging panorama of the sociolegal dynamics of accommodating Muslim minorities in the West. As the authors provokingly claim in their concluding chapter, European legal institutions as such provided no less of a “barrier” to Muslim incorporation compared to those in North America (p. 142; but see p. 151). Another provoking and perhaps unexpected claim is that democratic legislatures, when tempted by populism (consider the Swiss minaret saga!), often trump antimajoritarian courts in restricting Muslim minority rights, albeit within constitutional limits. Most provoking and surprising, if not paradoxical, is the argument that contrary to recent political attempts of imposing liberal life-conduct (“muscular liberalism”), a more promising development for multicultural liberalism might be to supplement state neutrality vis-à-vis religion with the recognition of Christian cultural identity as suggested by the Lautsi decision of the European Court of Human Rights (p. 158).
As apposite for an agenda-setting book like this, more questions are ultimately raised than answered. First, as the authors themselves concede (e.g., p. 83), they only scratch the surface of the internal mechanics of judicialized politics. Explaining regulations of religious diversity as outcome of struggles between politicians, judges, lawyers, and movement activists who all draw upon domestic and transnational legal repertoires would require more comprehensive empirical research on the ground. Second, the comparative design in which each country case serves to illustrate different facets of liberalism falls short of assessing the relative weight of electoral politics, judicial autonomy, strength of Muslim mobilization, and other factors in causing different responses to similar types of claims. And finally, given the authors' initial ambition to analyze “post-national” state transformations through the analytical window of Islam's legal integration, cross-sectional comparisons to other policy domains would have been welcome, not to speak of the challenges posed by other religious groups (e.g., by Christian fundamentalists, p. 152) to liberal democracy.
Having moved such questions to the center of attention is, however, not a minor contribution within an interdisciplinary research field whose precise contours are slowly taking shape. One of the first scholarly publications to survey the legal dynamics of integrating Islam on both sides of the Atlantic, the book therefore deserves to be widely read.
