Comparative Legal Systems: Islamic Law and Australian Legal System

This report provides a comparative analysis of the Islamic legal system (Sharia law) and the Australian legal system. It begins with an introduction to the Islamic legal system, emphasizing the Quran as its primary source and the role of the Sunnah and Fiqh. The report then explores the underlying ideology, central tenets, and the sources of Islamic law, including Ijma and Qiyas. It also examines the different categories of Islamic law, such as Hudud, Qiyas, and Tazir. The report then shifts its focus to legal pluralism, defining it and discussing its presence in the Australian legal system. It analyzes the structure of the Australian legal system and the potential for integrating Islamic law, concluding that a dual legal system is impractical due to the varied nature of the Muslim community in Australia and differing interpretations of Islamic law. The report highlights the challenges of implementing Sharia law within the Australian context, emphasizing the lack of consensus among different Muslim groups and the potential for complications in legal practice.

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Introduction
Legal system can be referred to as such processes or procedures which are used for interpreting
and enforcing the laws. There are different legal systems which exist to serve the specific religion or
ideology1. One of such legal systems is the Islamic legal system, which is often referred to as Sharia law.
The Quran is the key source of Islamic legislations as it sets forth the Sharia’s fundamentals and also
clarifies upon the principle teachings of it. In the following parts, a discussion has been carried on the
underlying ideology which forms the basis of Islamic legal system, its central tenets and the possibility of
its co-existence with the type of legal pluralism with the Australian legal system.
Underlying Ideology
As has been stated in the introductory segment, the Islamic legislation is based on the Quran.
The beliefs have been clarified in a great deal; and also, the forms of worship and the legal matters have
been discussed in detail2. The role of Islamic law is fulfilled through Quran in the sense that the
constitution fulfils that of the human made legislations of the country. Quran is deemed as the model for
the Prophet and for the ones who come after the Prophet. Hence, the source of all the legislations is
Quran and even though the role as constitution under Islamic laws limits the clarifying injunction
generally, it rarely deals with the specific details3.
The Sunnah refers to the actions, statements and the implied approvals of the Messenger. It is
deemed as a synonymous of “hadith”. The word Sunnah means the practical application during the
prophetic era of the injunctions. Sunnah comes only after Quran when it is ranked as the source of
Islamic law as Sunnah only clarifies what is deemed as difficult to understand or ambiguous under Quran,
qualifies only such thing which is left unqualified by the Quran and only brings forth such issues which are
1 US Legal, Legal System Law and Legal Definition (2017) <https://definitions.uslegal.com/l/legal-
system/>
2 Aron Zysow, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (ISD
LLC, 2014)
3 Aditya Mishra, Islamic Legal System of the World (2013) <http://lawmantra.co.in/islamic-legal-system-of-
the-world/>

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not mentioned in the Quran. Since the prophetic relation era ended, due to the death of Messenger, the
Sunnah transmits the preaching4.
Fiqh is divided traditionally in fields of uṣūl al-fiqh where the theoretical principles of jurisprudence
are studies; and in furūʿ al-fiqh which is focused upon the elaboration of the rulings which are based on
such principles. The principles of jurisprudence are covered under uṣūl al-fiqh5. As per the classic jurists,
the human reason is a God’s gift which needs to be exercised based on the fullest capacity. Though, it is
believed that the reasoning alone cannot be deemed as sufficient for distinguishing between right and
wrong. And so, there was a need for rational argumentation, which had to be drawn from the content from
transcendental knowledge which is present in Quran and passed on through the Sunnah of Muhammad6.
The scriptures have to be interpreted through the rhetoric and linguistic standpoints and the
manner in which this is to be done is covered under the traditional theory of Islamic jurisprudence. The
authenticity of hadith is to be established as a method of this, along with determining the lawful force of
scriptural passage which is abrogated through the passage, which is revealed later on. Apart from Quran
and Sunnah, there are two other sources of law, which includes ijma, i.e., the juristic consensus and
qiyas, i.e., the analogical reasoning. The ijma are the principles which elevate the rulings on the basis of
probable evidence for absolute certainty. And the qiyas derive the ruling for a particular situation which
has not been addressed in the scripture through analogy7.
Furūʿ al-fiqh, as a domain has been divided into the acts of worship or the rituals, i.e., ʿibādāt and
the social relations, i.e., muʿāmalāt. A number of jurists have divided substantiative jurisprudence body in
four quarters of rituals, sales, marriage and injuries. These terms, individually, stand for different subjects.
As an example of this, the sales quarter covers bequests, gifts, guaranties and partnerships under it8.
4 Leonard Wood, Islamic Legal Revival (Oxford University Press, 2016)
5 Gary F Bell, Pluralism, Transnationalism and Culture in Asian Law: A Book in Honour of M.B. Hooker
(ISEAS-Yusof Ishak Institute, 12-Jun-2017)
6 Muhammad-Basheer .A. Ismail, Islamic Law and Transnational Diplomatic Law: A Quest for
Complementarity in Divergent Legal Theories (Springer, 2016)
7 Abu Umar Faruq Ahmad, Theory and Practice of Modern Islamic Finance: The Case Analysis from
Australia (Universal-Publishers, 2010)
8 Aharon Layish, Legal Documents from the Judean Desert: The Impact of the Shari'a on Bedouin
Customary Law (BRILL, 2011)

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Central Tenets Manifested in Legal System
So, the Islamic legal system is based on the Quran and the Sunnah. They come together to
provide guidance on the moral values, practical duties and more broadly, carry the fundamentals of Islam.
When it comes to the criminal law, the Quran and Sunnah become flexible as only certain specific
offenses are prescribed, which are deemed as hudud. Sharia is supplemented through the human
knowledge and understanding; or fiqh, which is derived from detailed evidence. Fiqh is human reasoning
product or also known as ijtihad, and only the mujtahid, i.e., the qualified scholars can read Quran or
practice ijtihad, which gets the support of scholars’ general consensus or that or ijma and becomes a
binding law9.
The scholars, when it comes to the Sharia law, have been divided on the continuous use of ijtihad
for deducing new rules from the Sunnah and the Quran. The jurists from 10th century CE have refrained
from practicing ijtihad and make reliance over the previous ijma which is decided by the previous
scholars. The “closing the door” advocates are often deemed as conservatives who believed that ijtihad
should be ended in order to protect Islam against the changes believing that these would threaten Islam.
The doors were closed by some schools of Islam in a formal manner by 1258CE for furthering the
practice of ijtihad. The “closing of the door” is referred to as a situation where the judges of US rely only
on the stare decisis for making a decision of the case and could not directly look into the law for making
their analysis, and there are no new laws made by the legislature. Hence, this would mean that the legal
system would be idle as it is tied to the reasoning of the earlier scholars, where the modern exigencies
are not adopted. And so, it is disputed whether the door should be closed. And this issue of continuing
ijtihad is deemed as a controversial issue under the sharia law10.
Being derived from the Quran and the Sunnah, there is an entanglement of Sharia laws with
morality. It is divided into five different shares, i.e., obligatory, recommended, reprehensible, permissible
and forbidden. Though, legal transgressions are treated differently from religious and moral transgression
9 Farrukh B. Hakeem, M.R. Haberfeld and Arvind Verma, Policing Muslim Communities: Comparative
International Context (Springer Science & Business Media, 2012)
10 Angela Tang, Comparative Analysis Of Certain Criminal Procedure Topics In Islamic, Asian, And
Common Law Systems (2017)
<https://law.wm.edu/academics/intellectuallife/researchcenters/postconflictjustice/documents/
AnalysisofCertainCriminal.pdf>

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in Islamic laws. And only the forbidden and obligatory categories can be subjected to a legal action. The
Islamic law, particularly the field of criminal law, is divided into three different categories, i.e., hudud,
qiyas, and taízir. The first category, i.e., hudud are such crimes which have been stated under the Quran
and are predetermined punishments, including the same for fornication and adultery, for rebelling against
the ruler, armed gangster, drinking alcohol, theft and apostasy11. As per the Islamic laws, these crimes
require strict punishment which includes beheading, limb amputation and death by stoning. The hudud is
deemed as an offense which is carried on against the god and through the mercy of men, the same
cannot be mitigated12.
The Qiyas crimes are such which justify retaliation for bodily harm or for homicide and included in
this are injury to another, manslaughter and even homicide. The qiyas crime victim families take the
decision on what punishment has to be given to the guilty or whether they should accept diya, i.e., blood
money in place of the crime. The Tazir are such crimes which fail to fall under either of the two categories.
These are deterrent punishments which are left to be judged at broad discretion of the judges13.
The criminal law of Sharia is infused with the legality. Hence, the delinquent judges cannot simply
create such offences which have not been forbidden through the Sunnah or the Quran. Such crimes
which are not forbidden in a specific manner, through the legislation or through the Sharia, continue to be
permissible and the judges cannot punish these offenses where the populace has no notice. These
offenses are broadly described by the original sources; though, the particular details are left out of those
offenses which are open to the governments’ human legislations14.
Legal Pluralism and Sharia
Legal pluralism refers to the presence of multiple legal systems within a single geographical area.
Plural legal systems are prevalent in former colonies where the colonial authority continues to exist with
11 Chris Miller, War on terror: The Oxford Amnesty Lectures (Oxford University Press, 2013)
12 Anthony Tirado Chase, Routledge Handbook on Human Rights and the Middle East and North Africa
(Taylor & Francis, 2016)
13 Mohammed Salam Madkoar, Human Rights from an Islamic Worldview (2017)
<http://www.muhajabah.com/docstorage/hudud.htm>
14 Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the
Twenty-First Century (Cambridge University Press, 2006)

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the traditional legal system, i.e., the customary law. Australia has a parliamentary democracy and through
the Australian Constitution, 190115, a federal system of government was established in the nation. In the
Australian legal system, the power is distributed on the basis of the three divisions, i.e., legislative,
executive and judicial and operates through the separation of power. There is a distribution of power
between the government of the Commonwealth and the governments of the State or Territory16. The
boundaries of the law making are defined through the constitution, for the commonwealth and for the
particular state or territory. There are six states, i.e., NSW, Vic, TAS, WA, SA, and Queensland and three
self governing territories, i.e., NT, AT, and Norfolk Island17. The Australian legal system is a common law
legal system which is derived from the English law. The two key sources of the Australian laws are the
cases and the legislations. The legislations are the legal rules which are made by the parliament and by
the ones who have been given the authority through the parliament; and the cases are the ruling or
decisions of the judges of the court18.
An article appeared in “The Conversation” back in 2012 where the analysis was undertaken on
why a dual legal system could not be successful in the nation. This question was raised when a key
Australian Islamic group argued for a formal recognition of the Islamic law under the Australian legal
system. As per the Australian Federation of Islamic Councils, there was a need to integrate the Islamic
laws into the pre-existent statues and regulations which govern the different areas of life, such as the
financial transactions, marriage and divorce. However, a call for a dual legal system where Islamic law is
recognized is impractical, unsustainable and also premature. This is because having two different legal
system would over complicate the matters, and also, due to the Muslim population in the nation not being
of such high in number, the same could not be justified to warrant a change. And even when a varied
nature of community is there in the nation, the inclusion of a new legal system would prove to be a
problematic affair.
15 Australian Constitution, 1901 (Cth)
16 Matthew Groves, Law and Government in Australia (Annandale, NSW: The Federation Press)
17 Australian National University, The Australian Legal System (2013) <http://libguides.anu.edu.au/c.php?
g=634887&p=4547083>
18 Brendan Lim, Australia's Constitution after Whitlam (Cambridge University Press, 2017)

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If the sharia law is formalized in the nation, it would mean that Australia gets a dual legal system,
as is currently present in Indonesia and Malaysia. Though, this is doomed for a failure, from a purely
religious standpoint. This is because the sharia governs all branches of life and its part execution through
definition, would fail to get the expected religious outcome as din, i.e., way of life, of Islam. There is also a
problem where there is an extremely varied nature of the Muslim community of the nation. There are
members from across the 70 nations and the Muslim community is divided along the parochial, national
and ethnic lines, along with differentiations based on ideological and sectarian lines. And these
communities operate in isolation from each other, in an independent manner. Hence, there is a lack of a
general consensus when it comes to different religious issues and with regards to the Islamic law each of
the Muslim group has its own viewpoint. There are also different interpretations of Islamic history, of the
classical literature on Islam and of the Quran and hadiths. There is also a disagreement when it comes to
the implementation, design and formulation of sharia19.
There is also a very small youth group, within the Australian Muslim population, which calls out
for the formalization of sharia. The older first generation Muslims, who had a key contribution in the
community building in the nation are not a part of such group which calls for formalization of the sharia in
the nation. The virtue of young age depicts that they have a very limited knowledge of religion, along with
experience. Even though they hold high ethical standards and moral values, they still have to get a good
grasp over the knowledge of evolution and origin of the sharia law and that of the Islamic jurisprudence.
Apart from this, a number of imams, particularly the ones who are engaged actively, do not have the
Islamic practice and knowledge, and also fail to consult and cooperate with each other, in addition to the
Muslim community20.
There are a number of qualified Muslim scholars who have graduated from great learning centres
of Islam and are not trained in the methodologies of the classic Islamic jurisprudence. There is also a
need to learn that these learning have been given which are thousand years old, and such learning
centres have been majorly undermined in the last fifty years. There is also an issue that the Muslim
19 The Conversation, Sharia: why a dual legal system will not work in Australia (2012)
<https://theconversation.com/sharia-why-a-dual-legal-system-will-not-work-in-australia-528>
20 Ibid

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organizations which are not connected on an operational level with each other. An example of this can be
seen in the Muslim schools of the nation where the generic curriculum is taught, which is supplemented
by Islamic and Arabic studies and they still give the impression that they are such religious schools where
a solid Islamic education is provided, as an educational process21.
The fact is that the Muslim schools of the nation are secular institutions and undertake their
operations with corporate philosophy in the backdrop. This raised the question that where there is a lack
of coordination between the activities of the Muslim organizations and also within themselves, how can
sharia be effectively formalized in the nation since the question on who the sharia will be for cannot be
answered with certainty. One cannot deny that a fully fledged Islamic lifestyle does require a clear and a
strong legal foundation, but where the post modern era has such life in which there are major
fragmentations and multiple identities are held by people, being a Muslim can have different meanings.
And so, there is no longer an existence of a monolithic Islam22.
Calling for the formalization of sharia is also unrealistic, as a number of problems will be raised
when there is a collision between the Australian legal system and the Islamic legal system. This is
because the former is based on cases and legislations and the latter is based on the word of god. So,
when a case of homicide is present, the Australian legal system would require the person to be
sentenced, whilst the Islamic legal system would give the option to the family of the victim to get money in
place of getting the person punished. There would be a difficultly in deciding which law has to be applied
and which law has to be given supremacy. Thus, based on the central tenets of the Islamic legal system,
the coexistence of it, in a kind of legal pluralism with the Australian legal system would be problematic
and would over complicate the matters23.
21 Ibid
22 Ibid
23 Rex J. Ahdar and Nicholas Aroney, Shari'a in the West (Oxford University Press, 2010)

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Bibliography
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Ahdar RJ, and Aroney N, Shari'a in the West (Oxford University Press, 2010)
Ahmad AUF, Theory and Practice of Modern Islamic Finance: The Case Analysis from Australia
(Universal-Publishers, 2010)
Bell GF, Pluralism, Transnationalism and Culture in Asian Law: A Book in Honour of M.B. Hooker (ISEAS-
Yusof Ishak Institute, 12-Jun-2017)
Chase AT, Routledge Handbook on Human Rights and the Middle East and North Africa (Taylor &
Francis, 2016)
Groves M, Law and Government in Australia (Annandale, NSW: The Federation Press)
Hakeem FB, Haberfeld MR and Verma A, Policing Muslim Communities: Comparative International
Context (Springer Science & Business Media, 2012)
Ismail MA, Islamic Law and Transnational Diplomatic Law: A Quest for Complementarity in Divergent
Legal Theories (Springer, 2016)
Layish A, Legal Documents from the Judean Desert: The Impact of the Shari'a on Bedouin Customary
Law (BRILL, 2011)
Lim B, Australia's Constitution after Whitlam (Cambridge University Press, 2017)
Miller C, War on terror: The Oxford Amnesty Lectures (Oxford University Press, 2013)
Peters R, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-
First Century (Cambridge University Press, 2006)
Wood L, Islamic Legal Revival (Oxford University Press, 2016)

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Zysow A, The Economy of Certainty: An Introduction to the Typology of Islamic Legal Theory (ISD LLC,
2014)
Legislations
Australian Constitution, 1901 (Cth)
Others
Australian National University, The Australian Legal System (2013) <http://libguides.anu.edu.au/c.php?
g=634887&p=4547083>
Madkoar MS, Human Rights from an Islamic Worldview (2017)
<http://www.muhajabah.com/docstorage/hudud.htm>
Mishra A, Islamic Legal System of the World (2013) <http://lawmantra.co.in/islamic-legal-system-of-the-
world/>
Tang A, Comparative Analysis Of Certain Criminal Procedure Topics In Islamic, Asian, And Common Law
Systems (2017) <https://law.wm.edu/academics/intellectuallife/researchcenters/postconflictjustice/
documents/AnalysisofCertainCriminal.pdf>
The Conversation, Sharia: why a dual legal system will not work in Australia (2012)
<https://theconversation.com/sharia-why-a-dual-legal-system-will-not-work-in-australia-528>
US Legal, Legal System Law and Legal Definition (2017) <https://definitions.uslegal.com/l/legal-system/>