West fears sharia, but profit from laws

gerhard-hoffstaeder-thumb Dr Gerhard Hoffstaedter
Email: g.hoffstaedter@latrobe.edu.au

First published in The Canberra Times on 21 October, 2010.

A spectre haunts the West and it is Islam. And nothing says Islam like sharia, that legal framework that conjures up images of women being caned for drinking, stoned for adultery and men having their hands chopped off for stealing. 

But sharia also means Islamic finance and, with a market worth an estimated $A1.65 trillion by 2012, every bank and banking hub is trying to get in on the action.

The buzzword here is sharia-compliant banking; that is, a system of banking that does not charge excessive interest, which is forbidden, but rather works on the basis of a cooperative bank with shared assets and shared profit and losses. Major drivers of Islamic finance are sovereign wealth funds (five of the top 10 are oil-rich Muslim countries) with trillions of dollars to invest. Australia is at the forefront of Islamic financial legislation and regulation, ready to tap into the market that is one of the fastest growing in the banking sector. The Middle East and Malaysia are the obvious big players, with London vying for a piece of the pie too. With money to be made, the real concerns for most was with technicalities of how to make financial transactions compliant with Islamic law to tap into the market.

However, why does sharia in the marketplace not excite such passions as sharia in the law? Surely, if we are happy to provide products that comply with sharia laws to Muslims, we should also be happy to provide justice to Muslims that is sharia compliant? It seems a major hypocrisy, that in the world of finance we embrace sharia and offer compliance, while in the law we want to banish it along with those who advocate it.

What is really at stake? We largely see markets as out of our control, we don't really have a clue as to what goes on, how they work and why they crash. It's all a bit of a gamble. Justice, however, is something visceral that we immediately have an opinion on. A man having more than one wife, women wearing a burka, homosexuality, adultery the list goes on. We all have a visceral response to these depending on our cultural, social, religious and personal backgrounds.

Justice then becomes personal and a matter of personal beliefs, whether they are rational or not. Whether we see something as good or bad, as permissible or not is a matter of personal judgement. It is this personal space that we value in the West, to make personal decisions within the rule of law; a rule of law that is impartial and man-made, where we are judged by our peers.

In sharia law, it is ultimately God who judges. This would be fine if we could wait for Judgement Day, but sharia dictates earthly punishments for crimes against God and nature.

Sharia stipulates some very harsh penalties for a range of crimes. We are familiar with the most brutal such as stoning to death, being whipped and caned or having one's hand severed. These images of brutality shape our perception of a legal system that has worked quite successfully across the globe, in most countries doing so without the harshest of these penalties being applied. Like any legal system, it has its flaws, which are most contested within particular national contexts, where Muslim feminists and human rights advocates fight for more equality, deliberation and changes to sharia-derived legislation.

But, to many of us, sharia represents a foreign body of cultural, theological and legal norms that are seen as a pollutant to an otherwise enlightened, secular Western body of laws.

The latter is itself the product of a long and violent history of dealing with its Judeo-Christian roots. Even then, Western law it is not as pristinely humanist as it may appear, as sharia law is already part of the legal proceedings in many Western countries.

In Germany, for example, German judges take sharia law into account if they think a particular case merits it. Sharia law has been applied in family and inheritance law to distribute pension funds to second wives or allow Islamic divorce to take place.

There is much unease about such moves that critics argue allows a dual legal system to evolve. Others argue it only means that Muslims will try to use the system or legal framework that best suits their intentions, giving them an unfair advantage.

In Malaysia, several cases exist in which custody battles for children have seen fathers convert to Islam in order to get the sharia courts to grant them sole custody, leaving little or no redress to their ex-wives.

For some men, this can also feed into an unhealthy male fantasy of preferential treatment and a largely patriarchal legal framework that gives them power over women. This oriental myth is just a fantasy, but may make some men jealous, for their own existence offers them little recognition or power.

Sharia in the context of justice offers us little except for deep visceral responses of unfairness and brutality. Both are deeply contested. Sharia in the context of finance offers us income and tax dollars. It becomes easy to see why we can live with the latter but not the former.

Dr Gerhard Hoffstaedter is a research fellow with La Trobe University's Institute for Human Security and co-founder of the Melbourne Free University Project.