Thank you to Patrick Brady, Managing Director, Questio for submitting this relevant analysis on an issue that is too often avoided in the current political climate. ed.
Sharia law and the Australian legal system
What are the aspects of conflict between Sharia law and the Australian legal system?
The Australian system of law was inherited from the common law of England.
Common law is also described as judge-made law: it is law that is made by judges as cases come before them. At its simplest, when a court makes a decision, it sets a precedent that is to be followed in subsequent matters of a similar nature.
Over time, the common law has been supplemented by statute law, that is, laws made by parliament.
Sharia law on the other hand is based upon the word of Allah as expressed in the Qur'an and the Sunnah, the traditions of Muhammad.
The literal meaning of Sharia - or Al-Shari'ah - is pathway or the path to be followed. 'Adherents of Islam... are admonished by Allah... to follow the clear and right way, the path of Shari'ah.'
The fact that Sharia law is taken directly from the Qur'an means that it is, in theory unchanging and invariable. This is in direct contrast to Australian law which is constantly evolving both through the development of precedent and the passing of and amendments to legislation.
There are those who consider the static nature of Sharia law to be a positive feature, providing stability and avoiding what they see as problems such as divorce and homosexuality.
Critics of Sharia law however see this aspect as being inconsistent with pluralism and democracy, with the law unable to develop and adapt to changing social mores.
Sharia courts are 'essentially religious courts' and there is no separation between church and state.
Australian law is secular and the separation of church and state is a key feature of common law systems. The Australian Constitution enshrines this principle, prohibiting the Commonwealth from making any laws establishing a religion, imposing religious observance or prohibiting the free exercise of any religion.
Although the common law system of the English speaking world is grounded in Christian principles, the law does not attempt to enforce standards of religious behaviour. As a general rule, unless behaviour negatively impacts upon others, it is irrelevant in terms of the law whether such behaviour offends religious principles: 'a sin is not necessarily a crime.'
Another conflict between Australian law and Sharia law is the distinction between the public and private lives of citizens.
Australian law places considerable value of the freedom of citizens from interference in their lives by the state. For the main part, the purpose of the law is to regulate and prevent behaviour that would harm others.
Shaira law on the other hand reaches into all aspects of citizens' lives. Sharia is not just the source of law, but us the source of 'all principles of Islamic... life.' Examples are the requirement that women must wear a hijab in public, the prohibition on dating and marriage between a Muslim and non-Muslim, and abandonment of the Muslim faith being considered a crime.
The most significant aspect of conflict between Sharia law and Australian law therefore is the religious nature of Sharia law. The unswerving adherence of Sharia law to a centuries old religious text is in direct contrast to the secular, pluralistic nature of the Australian common law system.
Patrick Brady - email: patrick.brady@questio.com.au