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.

Islamic law and international law: the terms of a relationship

The relationship between Islamic Law and other legal systems (basically western type domestic legal orders and international law) is often thought of in terms of compatibility or incompatibility. Concerning certain subject matters of choice, the compatibility of Islamic (legal) principles with the values embedded in legal systems that are regarded as characteristic of the Modern Age is tested by sets of questions: is democracy possible in Islam? Does Islam recognize human rights and are those rights equivalent to a more universal conception? Does Islam recognize or condone more extreme acts of violence and does it justify violence differently? Etc. Such questions and many more presuppose the existence of an ensemble of rules or principles which, as any other set of rules and principles, purport to regulate social behavior. This ensemble is generically referred to as Islamic Law. However, one set of questions is usually left unanswered: is Islamic Law a legal system? If it is a legal system, what are its specific characteristics? How does it work? Where does it apply? It is this paper`s argument that the relationship between Islamic Law and domestic and international law can only be understood if looked upon as a relationship between distinct legal systems or legal orders.

Islamic law in the modern world.

Incldes bibliography.

Kitāb al-tarīqah al-wāḍiḥah ilá al-bayyinah al-rājiḥah

tartīb Maḥmūd ibn Ḥamzah.

The Nanggroe Aceh Darussalam law : a serious response to Acehnese separatism?

The passing of Law No. 18 of 2001 on 'Special Autonomy for the Province of Aceh Special Region as the Province of Nanggroe Aceh Darussalam' signified a major development in the Indonesian government's strategy to resolve Aceh's protracted conflict. Ratified by President Megawati Sukarnoputri on 9 August 2001, the 'NAD law' conferred unprecedented authority to Aceh over its internal affairs. This paper evaluates the challenges that have been involved in implementing the three main tenets of the legislation — aspects of Syari'ah (Islamic law), the return of Aceh's natural resource revenue and a provision to hold direct local elections. The paper argues that the Megawati administration's failure to redress Acehnese grievances through special autonomy largely stems from its suspicion of the NAD law itself, its greater reliance on militaristic measures than on political policies in Aceh, and pre-existing systemic factors such as Aceh's dysfunctional state infrastructure, corrupt political culture and war economy.

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.

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.

Adapting to concurrent expert evidence in medical litigation

In medical negligence litigation expert evidence has long played a dominant role. The trend towards the use of concurrent expert evidence is now well underway. However, for the lawyers and the doctors involved, the pathway is not yet familiar. Disputes have frequently arisen in the context of pre-hearing expert conclaves, given the adversarial nature of litigation and perhaps fuelled by fears of a less transparent process at this increasingly important stage. This article explains the concurrent expert evidence framework and examines areas of common dispute both in the conclaves and at trial, with a view to providing assistance to legal practitioners working in this area and the medical practitioners called upon to provide expert evidence in such litigation.