chapter  2
33 Pages

Contextualising Sharīʽah in the Common Law world

Introduction In Chapter 1, we considered the Muslim communities in Australia, Canada, the UK and the USA and their demographic make-up. We also examined the multicultural context of each of these countries and discussed the question of accommodation in respect to the diverse cultural and religious groups, both by the state more broadly as well as by the legal system. We argued in the Introduction that Common Law, in the abstract, and in liberal democratic theory, is sufficiently flexible and broad to encompass a variety and plurality of legal cultures and, importantly, ought to do so. In this chapter, we examine the other side of the coin and discuss in what ways, if at all, Muslims who follow their own legal code, the Sharīʽah, are capable of coexisting and integrating within Common Law frameworks. This issue has been the subject of heated debate and given rise to a number of false accusations about Muslims wanting to implement all of Sharīʽah as well as misconceptions about the meaning of Sharīʽah itself, including the understandings that Muslims have of it. These debates, at least in recent years, have taken place against a backdrop of fears of terrorism. They have generated a febrile climate in which any mention of Sharīʽah produces almost mass hysteria and ‘moral panic’ that preclude the possibility of any accommodation. We begin this chapter by setting out those perceptions of Sharīʽah that have appeared in media debates and political commentaries. We then proceed to ‘demystify’ those debates through a doctrinal and contextual discussion of the meaning of Sharīʽah and its practical understandings in our diverse Muslim communities. We will argue that the capacity of Muslims to integrate within the fabric of the Common Law depends upon their interpretation of the Sharīʽah. While there are interpretations that support the dominant media and political

discourse, these are extreme and fail to account for the richness and the breadth of the Islamic legal tradition. We maintain that one can be a ‘good’ Muslim and follow the Sharīʽah, in both letter and spirit, and at the same time participate as equal citizens in a liberal democratic state under the Common Law. It may entail adaptation and selection of some opinions over others, but it will not require rejection of Sharīʽah as both Islamist extremists and the dominant media discourse suggest.