Good and bad Sharia : Australia's mixed response to Islamic law

Reflecting on the legal consequences of globalisation in the 21st century, Twining predicted that societies in the West would have to 'wrestle with the extent to which the state should recognise, make concessions to, or even enforce norms and values embedded in different religions, cultures or traditions'. This is borne out as the direction across the common law world moves towards entrenching legal pluralism. The concessions each nation has made to minorities with different religions, cultures and traditions have varied. The special character of Islam, as a comprehensive blueprint for life in which law and religion unite, has meant that the negotiations for a special place for Muslims within each common law jurisdiction has been at the forefront of new legal ordering possibilities. This is the crux of the pluralism debate. Cautiously, Australians have watched the, at times histrionic, discourse in Canada and Great Britain on official recognition for Islamic law.

The “Iranian ART Revolution”: infertility, assisted reproductive technology, and third-party donation in the Islamic Republic of Iran

Infertility is a social onus for women in Iran, who are expected to produce children early within marriage. With its estimated 1.5 million infertile couples, Iran is the only Muslim country in which assisted reproductive technologies (ARTs) using donor gametes and embryos have been legitimized by religious authorities and passed into law. Th is has placed Iran, a Shia-dominant country, in a unique position vis-à-vis the Sunni Islamic world, where all forms of gamete donation are strictly prohibited. In this article, we first examine the “Iranian ART revolution” that has allowed donor technologies to be admitted as a form of assisted reproduction. Then we examine the response of Iranian women to their infertility and the profound social pressures they face. We argue that the experience of infertility and its treatment are mediated by women’s socioeconomic position within Iranian society. Many women lack economic access to in vitro fertilization (IVF) technologies and fear the moral consequences of gamete donation. Thus, the benefits of the Iranian ART revolution are mixed: although many Iranian women have been able to overcome their infertility through ARTs, not all women’s lives are improved by these technologies.

Cultural considerations in will-making in Australia: A case study of Islamic or Sharia-compliant wills

This article explores the influence of cultural and religious beliefs and laws on how individuals make decisions about asset distribution through wills, drawing on a case study of Islamic will makers. Findings highlight diversity in beliefs and practices within Australian Islamic communities. When drafting a will people from culturally diverse backgrounds need to accommodate their religious and cultural values and local law. Implications of research findings for legal policy and practice in Australia are discussed.

Taking a leap of faith : are investors left short changed?

This dissertation examines the compliance and performance of a large sample of faith based (religious) ethical funds - the Shari'ah-compliant equity funds (SEFs), which may be viewed as a form of ethical investing. SEFs screen their investment for compliance with Islamic law, where riba (conventional interest expense), maysir (gambling), gharar (excessive uncertainty), and non-halal (non-ethical) products are prohibited. Using a set of stringent Shari'ah screens similar to those of MSCI Islamic, we first examine the extent to which SEFs comply with the Shari'ah law. Results show that only about 27% of the equities held by SEFs are Shari'ah-compliant. While most of the fund holdings pass the business screens, only about 42% pass the total debt to total assets ratio screen. This finding suggests that, in order to overcome a significant reduction in the investment opportunity, Shari'ah principles are compromised, with SEFs adopting lax screening rules so as to achieve a financial performance. While younger funds and funds that charge higher fees and are domiciled in more Muslim countries are more Shari'ah-compliant, we find little evidence of a positive relationship between fund disclosure of the Shari'ah compliance framework and Shari'ah-compliance. Clearly, Shari'ah compliance remains a major challenge for fund managers and SEF investors should be aware of Shari'ah-compliance risk since the fund managers do not always fulfill their fiduciary obligation, as promised in their prospectus. Employing a matched firm approach for a survivorship free sample of 387 SEFs, we then examine an issue that has been heavily debated in the literature: Does ethical screening reduce investment performance? Results show that it does but only by an average of 0.04% per month if benchmarked against matched conventional funds - this is a relatively small price to pay for religious faith. Cross-sectional regressions show an inverse relationship between Shari'ah compliance and fund performance: every one percentage increase in total compliance decreases fund performance by 0.01% per month. However, compliance fails to explain differences in the performance between SEFs and matched funds. Although SEFs do not generally perform better during crisis periods, further analysis shows evidence of better performance relative to conventional funds only during the recent Global Financial Crisis; the latter is consistent with popular media claims.

More and more lawyers but still no judges

This paper discusses some parallels and contrasts between the legal roads to war and suggest that the case is stronger than ever for adjudication of the matter before an independent tribunal where the competing views can be tested.

Contract Law Case Book [2nd ed.]

This case book contains the essential sections of the most significant cases in Australian contract law. Ready access to this collection of cases enables students to experience the law through the judges’ own words, and to develop the skills of interpreting and analysing cases in order to refine their understanding of the law. Excerpts from important statutes and writings are also included.

Reason is too large : analogy and precedent in law

Hunter argues that cognitive science models of human thinking explain how analogical reasoning and precedential reasoning operate in law. He offers an explanation of why various legal theories are so limited and calls for greater attention to what is actually happening when lawyers and judges reason, by analogy, with precedent.

Protection of intellectual property in Islamic Shari'a and the development of the Libyan intellectual property system

This thesis introduces a theory of intellectual property (IP) law informed by Islamic Shari'a. The sources and objectives of Islamic Shari'a support the theoretical framework underpinning IP laws. However, they strongly emphasise the importance of development goals in intellectual property policy making. This thesis argues that an optimal IP system from an Islamic perspective shall not overprotect IP holders but should instead endeavor to empower people to access knowledge resources to enhance access to education, public health and economic opportunities. Taking Libya as a case study, this thesis makes recommendations for the improvement of IP law that have important broader implications for developing countries.

Reality bites: When copyright law and reality cooking meet, only the lawyers win

There’s nothing new about this recipe for success: toss in high-stress scenarios, flavour generously with competitive chefs, and garnish with a panel of celebrity judges. With all major broadcasters in the country now dishing up some form of reality cooking programme, Australians could be forgiven for having lost any expectation of original TV material. But that didn’t stop Channel Seven from taking Channel Nine to court last week, arguing its copyright in My Kitchen Rules had been infringed with Nine’s latest prime-time effort, The Hotplate. After the first few episodes went to air, Seven asked for an injunction to stop Nine from broadcasting any more episodes of the reality show. So let’s look at some common confusions about copyright law and how it relates to reality television. Because in this context, copyright infringement isn’t about shows sharing major similarities, or about protecting ideas, but rather the expression of these ideas in the final product. Still, stretching copyright law to protect the “vibe” of a work isn’t good for artists, TV producers or viewers: copyright was designed to nurture creativity, not stifle it.

Popular participation in labour law: The new labour dispute resolution tribunal

The Labour Tribunal Law (No. 45 of 2004) ushered in a new court-annexed dispute resolution system for industrial relations disputes in Japan (outlined generally in Sugeno, 2004). Similar to the lay judge system for criminal trials (Johnson and Shinomiya, Chapter 2), the new tribunal adopts an adjudicative model that blends professional and lay expertise with decisions heard by a tripartite panel comprising a professional judge and two lay judges recommended by management and labour unions respectively. The new tribunal system came into operation on 1 April 2006.

Implementation mechanism: Protection against harassment of women at workplace

Pakistan is widely known and appreciated in the world for its history, Islamic culture and norms. Since the creation of Pakistan, it inherited poverty in its roots. There are many reasons for poverty but one lies on the shoulder of women who are 50% of the total population of Pakistan. On the apex of it, women do not take part in the development of Pakistan because when they step out of their homes, they suffer a lot of problems. These problems are a hurdle in their active participation in development .Government has tried to create an environment for those women, who suffer different problems. Harassment of women at work place is one of those problems which discourage women in taking active part in economic and social development of society. Women Activists, from the last decade, were working for the protection of woman’s right at workplace and they succeeded in formulation of Harassment Act 2010. Since law is ineffective without its proper mechanism of implementation, steps should be taken for its proper implementation mechanism. This article aims to provide information about the provisions of law, related to the harassment of women at workplace with an attempt to explore the effectiveness of its implementation. The study was conducted in twin cities of Pakistan, Islamabad and Rawalpindi. Interviews were conducted with the employees and employers of organizations, educational institutions, women activists, NGOs workers, lawyers, judges and some law enforcement officers. Group discussions were also held with teachers, students of Human rights and religious personalities. This report focuses on the implementation mechanism of new legislation in Pakistan. It also highlights some important facts related to its enforcement.