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Sharia: why a dual legal system will not work in Australia

Many groups have called for sharia, or Islamic law in Australia, but is it workable? EPA/Andy Rain

A major Australian Islamic group recently argued for a formal recognition of sharia or Muslim law in the Australian legal system.

According to the Australian Federation of Islamic Councils, Australia should integrate Islamic religious law into existing regulations and statute governing areas of life as diverse as marriage, divorce and many financial transactions.

Such calls for a dual legal system recognising Islamic law or sharia are not only premature, but would be unsustainable and impractical.

Having two legal systems would be overly complicated, but there is also not a big enough Muslim population in Australia to warrant the change. And even if there was, the varied nature of this community would mean different religious interpretations of sharia, making any new legal system problematic.

Islamic revival

In the past three decades, there has been a growing trend towards Islamic revivalism, both internationally and in Australia. The Islamisation of Muslim life is occurring largely through a process of proselytisation. An increasing number of Muslims are learning new Islamic knowledge and adopting religious teachings.

Many strictly religious Muslims are now observing sharia in their everyday life with increased rigour. My own research into Islamic organisations in Australia clearly demonstrates this.

It is largely these strict second generation Muslims who demand the establishment of a dual legal system through the formalisation of sharia. They are fluent in the official language of Australia and have a much better understanding of the key institutions in society than their parents.

The premise of their claim is that a proper life as a Muslim can only be possible with God’s rules governing personal affairs, as well as social relationships and exchanges.

Is a dual system possible?

The formalisation of sharia would mean that Australia would have a dual legal system similar to those in operation in Malaysia and Indonesia. However, from a purely religious viewpoint, such a system is doomed to failure.

Given the fact that sharia governs all aspects of life, its partial implementation, by definition, will fail to yield the expected religious outcome of Islam as a din; or “way of life”.

Another problem is the enormously varied nature of the Australian Muslim community. It has members from around seventy different nations. The Muslim community is divided not only along national, ethnic and parochial lines, but also along sectarian and ideological lines. They operate independently and in isolation from each other.

There is no general consensus on a variety of religious issues, and each Muslim group has its own distinct view of sharia. This is further compounded by different interpretations of Islamic history, the sacred texts (Qu'ran and hadiths) and the classical literature on Islam. Disagreement also exists relating to the design, formulation, and implementation of sharia.

Youthful drive

Within the Australian Muslim population, it is only a very small relatively young group clamouring for the formalisation of sharia. The older first-generation Muslims who were involved in community building are generally not part of the group calling for the formalisation of sharia in Australia.

By virtue of their young age, many Muslims pushing for the formalisation of sharia inevitably have only limited religious knowledge and experience. While the majority of young Muslims espouse high moral virtues and ethical standards, they are still in the process of grasping the origins and evolution of sharia and Islamic jurisprudential knowledge.

Added to this, many so-called imams who are actively engaged in the process not only lack “Islamic knowledge and practice”, but don’t cooperate and consult with each other and with the wider Muslim community.

Foundation knowledge

Many qualified Muslim scholars who are graduates of great Islamic centres of learning such as the University of Al-Azhar in Egypt are not trained in the classic Islamic jurisprudential methodologies. It must be remembered that, although over a thousand years old, the University of Al-Azhar has been religiously substantially weakened over the past 50 years.

Another issue is the fact that Muslim organisations are not connected with each other at the operational level. For example, Muslim schools in Australia teach the generic curriculum supplemented by Arabic and Islamic studies, yet give the impression that they are religious schools providing a solid Islamic education as a pedagogical process.

In fact, Muslim schools in Australia are secular institutions that operate with a corporate ethos. Given the fact that there is not only an absence of coordination between Muslim organisations and their activities, but an absence of any interaction between them, how could sharia be formalised in Australia? Who will the sharia be for?

Post-modern problems

It is not disputed that a complete Islamic way of life requires a clear and firm legal foundation but in the post-modern era in which life is enormously fragmentary and people are beholden to multiple identities, being a Muslim has many meanings.

A monolithic Islam, as it once was, does not exist anymore.

The reality of Muslim life in Australia reveals a selective implementation of Islamic teaching and values, and a close conformity to Australian secular system through open participation in key institutions and social processes. If this is the Muslim reality, calling for a dual legal system through the formalisation of sharia is simply unrealistic.

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