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The myths and realities of Islamís Shariah law

By Jamila Hussain - posted Thursday, 2 March 2006


Reports in the Australian media relating to Islamic law almost invariably focus on issues such as “honour” killings, female circumcision (female genital mutilation), amputations for theft and the stoning of women to death for adultery in places such as Nigeria and Iran.

To many Australians, these things represent the Shariah. However, the media needs to sell. Therefore, reports of anything sensational, absurd, exotic or exceptionally cruel are more likely to attract readers than reports of everyday legal matters in other countries. Based only on the information available in the media, it is not surprising that the ordinary Australian believes that the Shariah is cruel and barbaric and has no place in Australia.

The Shariah is one of the world's great legal systems, an alternative to Australia's British derived Common Law in much the same way as the civil law system or the socialist legal systems are alternatives chosen by some countries as their law. Shariah is the sole living survivor in the modern world of a legal system based on religion. This itself is enough to condemn it in the eyes of those who regard any convergence of religion and law as anathema. But in Muslim countries, where religion is generally held in higher regard than it is in Australia, the religious basis of the law is accepted and, indeed, regarded by many as essential.

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The Shariah is as complex as the Common Law. As in other legal systems, there are differences of interpretation and emphasis resulting in different laws and traditions in different places. There is sometimes felt to be a need for re-evaluation of old rules in the light of modern conditions, provided that this can be done without abandoning the sacred principles laid down in the Koran and the Sunnah (sayings and rulings of the Prophet Mohammed). In progressive Muslim countries attempts are being made to reinterpret old rulings, although often, conservative people get the upper hand and progress is slow. However, it must be remembered that the law in any jurisdiction is slow to evolve and often lags behind social change.

In the modern world, the Shariah is the complete legal system of only a very few countries. The majority of Muslim countries as a legacy of colonialism, or through deliberate westernisation as in Turkey, have mixed legal systems. They almost always retain the Shariah in matters such as family law and inheritance, and have adopted aspects of the civil law or Common Law systems in areas of public law. Only Saudi Arabia, Iran, Sudan and some states in Nigeria retain Shariah as their criminal law while Pakistan has re-introduced it in an unfortunately ultra-conservative interpretation.

Criminal law is one of the two areas which attracts the most criticism in the West. The other is the position of women. Few people understand that the Hudud penalties - those that involve amputation, stoning and other drastic penalties - are only a very small part of Islamic criminal law and are invoked only rarely, and then often in circumstances which give rise to a suspicion that the courts involved - usually lower courts - may not have been properly guided in their application of the law. Often these verdicts are overturned on review by a higher court. There is also now an emerging body of Muslim thought which believes that the Hudud penalties should not be regarded as requiring implementation except in a just, truly Islamic society - which today does not exist anywhere in the world.

As regards the position of women - there is no argument against the proposition that Islam gave women rights which were unprecedented in the world at the time of its revelation. Muslim women have always been entitled to a separate legal personality and may retain their own names on marriage. They are not considered as one entity with the husband as was the rule in Christian countries until the 19th century. Muslim women have been entitled to inherit and to acquire and control their own property since the seventh century and have been entitled to earn an income for themselves and keep it. They are entitled to an education and may be appointed to public office - as was illustrated by Shifa bint Abdullah who was appointed to the important position of Inspector of Markets by the Caliph Omar.

However, just as initial liberating ideas in other world religions such as Christianity and Judaism succumbed in time to the influence of patriarchy, so in Islam. The status of women became diminished over the ages as men reserved for themselves the right to interpret the scriptures and adopted interpretations which favoured men and kept women in their “place”. In time, for a variety of reasons, the status of women in Muslim societies declined so that today, in some Muslim countries, they are among the most oppressed in the world. Today many of the conservative interpretations are being challenged by progressive Muslim thinkers but change on the ground remains slow.

At the same time, local customs continued to assert themselves. The practices of “honour” killing and female circumcision are in no way endorsed by Islam and are directly contrary to Islamic laws that prohibit mutilation of the body and the killing of human beings except through process of law. Nevertheless these practices have continued in some Muslim (and some non-Muslim) countries as part of local custom. To attribute them to Islam is similar to attributing the burning of witches in past times to the teachings of Christianity.

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In Australia, Muslim migrants bring the Shariah with them as their personal law, and in only a very few instances does it come into conflict with Australian law. In the area of family law, the Marriage Act permits Muslims to marry in compliance with both Australian and Islamic law at the same time. Divorce is more problematic because quite different rules apply. Only fairly recently has Australian law adopted the Islamic practice of requiring mediation in family disputes. Islamic law does not recognise adoption but endorses fostering, which is similar to the newer ways of thinking about this subject in Australia.

Islamic banking is now well established in Australia through local Islamic financial institutions. Local Muslims can now invest and borrow in interest free transactions according to Shariah rules. In July 2003 The Weekend Australian reported that Prime Minister Howard had endorsed a shared partnership scheme between home buyers and banks which was very similar to schemes already being used by Islamic financial institutions.

There are certainly aspects of law which are quite opposite between Australian law and the Shariah. The Shariah prohibits drinking alcohol, gambling, sex outside marriage and the taking of interest in financial transactions. Australian law permits all these things but no one is obliged to take them up, so sincere Muslims can comply with both sets of laws. On the other hand, the Shariah permits limited polygamy. Australian law prohibits polygamy but permits de facto relationships regardless of whether one party is already legally married. Second marriages contracted under religious law are regarded as de facto relationships under Australian law and so the two can co-exist in practice. There are, in any case, few polygamous marriages among Australian Muslims.

Recent media reports have concentrated much on the issue of terrorism and the possibility of local Muslims becoming terrorists. Islam does not endorse terrorism either by or against Muslims or anyone else. There are very specific rules of war which prohibit the killing of civilians and the destruction of the environment in the course of war. There are no doubt a certain number of radicals in any community, particularly in one which has been repeatedly told by politicians and the media that it cannot integrate and is not wanted in Australia. Nevertheless, the great majority of Australian Muslims are good citizens, interested in educating their children, furthering their careers and looking after their families in the same way as any other Australian.

There is little demand among Australian Muslims for the Shariah to be introduced in Australia although some would appreciate the right to legal recognition of divorce in accordance with Shariah. Too often, criticism of Australian Muslims for not “integrating” is really criticism for them not assimilating. In a truly multicultural Australia, the Shariah as a system of personal law can co-exist with the Australian legal system.

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Article edited by Melanie Olding.
If you'd like to be a volunteer editor too, click here.

First published by the Brisbane Line, February 16, 2006



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About the Author

Jamila Hussain lectures at the University of Technology, Sydney in Islamic Law and Asian Law and Culture and at the University of Western Sydney in Comparative Law. She is Australian born, of Anglo-Irish descent and a convert to Islam.

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