Portal de Periódicos da CAPES

A Dual Legal System in Australia: The Formalization of Shari'a

2011; Taylor & Francis; Volume: 7; Issue: 4 Linguagem: Inglês

10.1080/17419166.2011.617613

1741-9166

Jan A. Ali,

Comparative and International Law Studies

Abstract Legal pluralism, or the dual legal system, is in essence a postcolonial phenomenon. People movement—migration—from the poor South to the rich North started in earnest at the end of the colonial era. Many Muslims were part of this migration process, and as a result we have today a visible Muslim presence in many countries of the West. In a number of Western countries, demand by Muslims for dual legal system is fast growing and is a direct legacy of postcolonial migration processes. Great Britain, for example, which has over two million Muslims, in late 2008 officially endorsed Shari'a (Islamic law) tribunals governing marriage, divorce, and inheritance to make legally binding decisions when parties involved agree. This article looks at the Muslim call for the dual legal system in Australia in relation to the establishment of Shari'a as a separate code of law and explores the basis upon which such a call rests. It argues that this demand by Muslims in Australia is not only premature but sociologically unsustainable. Although Islam is a permanent feature of Australian multiculturalism and the Muslim population through migration and birth is fast increasing, Muslims in Australia remain divided on ethnic, parochial, and ideological lines. To gather this fragmentary community to any religious function is enormously difficult, let alone getting it to agree on a set of Islamic legal codes or the Shari'a. Keywords: Dār al-harbDār al-IslāmIslamophobiaMaslaha MursalaProselytisation Shari'a Notes 1. Abdullah Ali, Roman Transliteration of Holy Quran with Full Arabic Text (Lahore: Sh. Muhammad Ashraf, 1938). 2. Ism'ail Raji al Faruqi, The Cultural Atlas of Islam (London: Al-Saadawi Publications, 1986), 246. 3. Wael Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005), 21. 4. Mohammad Kamali, An Introduction to Shariah (Kuala Lumpur: Ilhiah, 2006). 5. Malise Ruthven, Islam in the World, new ed. (London: Granta Books, 2006), 135. 6. Mawil Izzi Dien, Islamic Law: From Historical Foundations to Contemporary Practice (Edinburgh: Edinburgh University Press, 2004), 35. 7. Wael Hallaq, "From Regional to Personal Schools of Law? A Reevaluation," Islamic Law and Society 8, no. 1 (2001): 1–26. 8. Hallaq, The Origins and Evolution of Islamic Law. 9. Commonwealth of Australia, 1991 Census of Population and Housing, Catalogue No. 2722.0, Australian Bureau of Statistics, Canberra, 1992; Commonwealth of Australia, 1996 Census of Population and Housing, Catalogue No. 2901.0, Australian Bureau of Statistics, Canberra, 1997; Commonwealth of Australia, 2001 Census of Population and Housing, Catalogue No. 2015.0, Australian Bureau of Statistics, Canberra, 2002; Commonwealth of Australia, 2006 Census of Population and Housing, Catalogue No.2068.0, Australian Bureau of Statistics, Canberra, 2007. 10. Wafia Omar and Kirsty Allen, The Muslims in Australia (Canberra: Australian Government Publishing Service, 1997), 23. 11. Commonwealth of Australia, 2001 Census of Population and Housing; Commonwealth of Australia, 2006 Census of Population and Housing. 12. Abdullah Saeed, Islam in Australia (Crows Nest: George Allen and Unwin, 2003). 13. Ibid. 14. M. Jones, "The Years of Decline, Australian Muslims 1900–40," in An Australian Pilgrimage: Muslims in Australia from the Seventeenth Century to the Present, ed. M. Jones (Melbourne: Victoria Press,1993), 63–86. 15. Ibid. 16. Michael Humphrey, Islam, Multiculturalism and Transnationalism: From the Lebanese Diaspora (London: I. B. Tauris Publishers, 1998). 17. Gary Bouma, Mosques and Muslim Settlement in Australia (Canberra: Bureau of Immigration and Population Research, 1994). 18. Bilal Cleland, "The History of Muslims in Australia," in Muslim Communities in Australia, ed. A. Saeed and S. Akbarzadeh (Sydney: University of New South Wales Press, 2001), 12–32. 19. Humphrey, Islam, Multiculturalism and Transnationalism. 20. Amanda Wise and Jan Ali, Muslim-Australians and Local Government: Grassroots Strategies to Improve Relations Between Muslim and Non-Muslim Australians, Final Research Report, Department of Immigration and Citizenship and the Centre for Research on Social Inclusion (Sydney: Macquarie University, 2008). 21. Michael Humphrey, Family, Work, and Unemployment: A Study of Lebanese Settlement in Sydney (Canberra: Australian Government Publishing Service, 1984). 22. Humphrey, Islam, Multiculturalism and Transnationalism, 21. 23. Ibid. 24. Michael Humphrey, "Australian Islam, the New Global Terrorism and the Limits of Citizenship," in Islam and the West: Reflections from Australia, ed. S. Akbarzadeh and S. Yasmeen (Sydney: University of New South Wales Press, 2005), 132–148, 136. 25. Michael Humphrey, "Islam: A Test for Multiculturalism," Asian Migrant 2, no. 2 (1989): 48–56. 26. Ibid. 27. Gary Bouma, Mosques and Muslim Settlement in Australia (Canberra: Bureau of Immigration and Population Research, 1994). 28. Michael Humphrey, "Is This a Mosque Free-Zone? Islam and the State in Australia," Migration Monitor 12 (1989): 12–17. 29. Jones, "The Years of Decline, Australian Muslims 1900–40," 63–86. 30. Cleland, "The History of Muslims in Australia," 12–32. 31. Gary Bouma, Joan Daw, and Riffat Munawar, "Muslims Managing Religious Diversity," in Muslim Communities in Australia, ed. A. Saeed and S. Akbarzadeh (Sydney: University of New South Wales Press, 2001), 53–72, 69. 32. Ibid., 70. 33. Tariq Ramadan, "Islam and Muslims in Europe: A Silent Revolution Toward Rediscovery," in Muslims in the West: From Sojourners to Citizens, ed. Y. Haddad (Oxford: Oxford University Press, 2002), 158–166. 34. Ibid., 162. 35. Ibid., 159. 36. Ibid., 160. 37. Lars Pedersen, Newer Islamic Movements in Western Europe (London: Ashgate, 1999). 38. They are Sunni-based movements. 39. Jan Ali, "Islamic Revivalism: A Study of the Tablighi Jamaat in Sydney" (PhD diss., University of New South Wales, 2006). 40. Pamela Ryan, Australia Deliberates: Muslims and Non-Muslims in Australia (Canberra: Issues Deliberation Australia/America [IDA], 2007). 41. It is important to appreciate that although there are Muslim organizations or institutions of higher learning such as the Daar Aisha Shariah College in Lakemba in the south-west suburb of Sydney, they are not recognized by all Muslims or even by Australian authorities. Even the Australian Federation of Islamic Councils is not recognized by many Muslims although it is the national umbrella body. 42. Sami Zubaida, Law and Power in the Islamic World (London: I. B.Tauris, 2003). 43. Ibid., 159–60. 44. Bernard Botiveau, Loi islamique et droit dans les societes arabes: Mutations des systemes juridiques du Moyen-Orient (Paris and Aix-en-Provence: Karthala-IREMAM, 1993).