Value Paradigms and Legal Principles to The Proof of “Islamic Normative Facts”

Abstract

The application of Sharia law within the legal systems of democratic tradition poses several problems. First, the problem of the legal value of rules of a religious nature in a secular legal order. Secondly, the concrete application of religious rules among members of the faith community makes those norms “normative facts”: the state system does not recognize them as valid norms, but takes note of their effectiveness. Thirdly, experience shows that the laws in force of a secular state can be interpreted and applied in such a way as to accommodate, even if only partially, the legal solutions offered by religious law. The arena where this experience is mainly manifested is offered by the jurisdictional seat: the courts and the arbitration tribunals that practice “reasonable accommodation” as an interpretative tool. These phenomena are based mainly on the will to dialogue. This essay briefly explores these issues.