Respecting Australian law is key to religious freedom

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The ‘shari‘a law’ straw man is being dragged out in public again. Oh, dear.

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This time, all sorts of talking heads are outraged that Sydney Uni law students might optionally take a course introducing them to the code of living followed by somewhere in the region of 1.8 billion people. Wouldn’t you think our future drafters of international business contracts selling our Aussie goodies should understand the basic elements underpinning many overseas law codes? Or that possible future legislators might like to understand the issues that motivate a growing segment of the Australian religious landscape?

It must be a slow news week: time to dust-off the familiar Muslim whipping-boy and give him a good public beating.

Federal Education Minister Simon Birmingham jumped on the bandwagon, waving a scolding finger at Sydney University and saying our tax dollars shouldn’t be used for That Type of Thing. Does he know that the government funds the National Centre of Excellence for Islamic Studies? It is a consortium of three major Australian universities that teach all about Islam and Muslims.

As distasteful as the media’s attempted take-down of Salim Farrar and Dr Ghena Krayem’s law subject is, it raises an important question. To what extent should Australian law accommodate the needs of different religious and cultural groups that have their own codes of living?

This doesn’t just affect Muslims: Catholics have canon law, Jews have halakha, Baha’is have their shari‘a, and don’t forget Indigenous Australians have traditional law too.

Most of the time, religious believers can go about their lives happily following their particular codes of sacred law. Priests can decline non-Catholics communion, Jews can down-tools on a Saturday, and Muslims can refuse to eat pork sausages.

But occasionally, Australian law and a particular religious law conflict with each other. Under shari‘a law, for example, a deceased Muslim should be shrouded and buried directly in the ground as soon as possible. Until recently, however, Australian laws—based on Christian practices—required the body be buried in a coffin. After successful lobbying by the late Sheikh Fehmi El-Imam, Victoria became the first state to permit direct burial, with other states following suit.


"Those politicians and media commentators threatening to exclude Muslims from contributing to questions of law and governance undermine the very fabric upon which our liberal democracy rests."

 

The notion of one law for all Australians is a furphy. What those wringing their hands should understand is that our social pact requires that we all assent to the government’s primacy of position as legislators, and that our liberal democracy allows any of us—Muslims included—the right to enter the public debate, lobby, and even run for office if we want to have a say in our law.

It is because Muslims (and Catholics, Jews, atheists and others) have the right to try to peacefully persuade others about their take on things, that we have liberal democracy, and not a theocracy or a revolution.

Muslims might try to persuade the government to recognise polygynous marriages, Jews might want non-stunning of animals for kosher slaughter to be standard practice; Catholics might want to end abortion; secular humanists might want to permit gay marriage—and it is quite possible that our legislators will say ‘no’. But Muslims, Catholics, Jews, or secular humanists have every right to lobby for these positions to be heard. It is the essence of Australian democracy.

This is the brilliance of the Rawlsian concept of ‘overlapping consensus’. That is, the idea that liberal democracy, by its nature, will produce fierce debate over political and social issues. We can build a peaceful and stable society by agreeing to cooperate with each other in the areas where we already agree, and give everyone the right to reasonably argue positions of difference.

It means we do not mutiny just because we haven’t gotten our way. Groups have to find within themselves the resources to recognise that this is a better way of doing things, rather than devolving into fighting and chaos.

Because we are a multicultural and multi-religious society, we do not impose a singular moral or religious code on everyone. Believers can follow their faith’s code of living voluntarily. But if they choose to enter public debate about legislation on questions that affect everybody, they must construct their arguments based on reasoning acceptable to non-believers. Put simply, it cannot just be because the Bible or the Qur’an says so.

This works pretty well in Australia. However, it is based on an agreement. The legitimacy of the government’s political power is recognised by various groups in our society because they have an assurance of the right to take part in public debate.

Those politicians and media commentators threatening to exclude Muslims from contributing to questions of law and governance undermine the very fabric upon which our liberal democracy rests.

If they keep going, it will push the disenfranchised into the position where they do not recognise the legitimacy of the government that systematically excludes them. For the future of Australian democracy, we cannot accept the fear mongering of xenophobes and racists to win.

 


Rachel WoodlockDr Rachel Woodlock is an expat Australian academic and writer living in Ireland.

Topic tags: Rachel Woodlock, Muslim, multicultural, democracy, Rawlsian


 

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“Centre of Excellence for Islamic Studies”. Despite coming from a small jurisdiction of 8.6 million (the population of the UK being nearly six times larger), the new chief justice of the High Court in 1952, Owen Dixon, was acknowledged to be a pre-eminent common law jurist. The continuing existence of the two Muslim law courses should be left to the market --- of local students prepared to fork out around $1300 per course (more for overseas students) --- to decide. The Australian tertiary education sector should offer Islamic theology undergraduate and higher degrees, just as (Christian) theology and divinity degrees are now offered. The reason why an Australia of 23 million should plan to be home to Islamic scholars with a reputation over 1.8 billion is because Islamic scholars of distinction can issue fatwas. The link between fatwa-issuing authorities and the (mainly autocratic) governments which pay their salaries (eg. between the Egyptian government and Al-Azhar University) is not transparent and fatwas are often thought to be issued with an eye to how a government might respond. It may be in Islam’s interest as an evolving work of history for fatwas to start coming from Islamic jurisdictions located in free states.
Roy Chen Yee | 21 July 2017


It would be good for students of Law or Commerce to be aware of Islamic (Sharia) Law for professional reasons.In our postmodern society I fear what used to be recognised as mainstream Christians have been pushed to the fringe of much public debate e.g. same sex marriage and euthanasia. This has not, I believe, been by an open process of mutually respected intelligent debate but by pressure, not all of it applied in what we would consider legitimate ways. You talk of Muslims being pushed to the fringe and not recognising the authority of the government. Yasmin Abdul Magid on Twitter has already said she feels disenfranchised and only recognises the authority of indigenous people to tell her what she can say about Australian society. We also focus inordinately on young, often violent Muslim men. Not that much attention is given to the likes of Jamal Rifi or the late Khalil Chamy. I suppose balanced and mature Muslim comment, as well as traditional Christian views, do not make it to many of the news media.
Edward Fido | 23 July 2017


As part of my work with a Christian group I am monitoring the social media debate on redefining marriage.What constantly shocks and dismays me is how little respect some of the more rabid 'traditionalists' show for the legal and political processes and institutions of Australia (or other countries). This is a very timely article in so many ways!
Margaret Ker | 24 July 2017


I am intrigued, Margaret Ker, as to what 'Christian group' you are monitoring the social media for. It sounds very much like they have an iron in the same sex marriage fire, as, indeed, has the ACL, of which I am not a member.
Edward Fido | 24 July 2017


An excellent article! It suggests to me that an important distinction should be drawn between rights/duties common to society as a whole and those which exist within a group. Thus, I do not need to lobby for Shari'a /canon law/halakha norms to be enforced upon society as a whole if there is no threat to curtail my or my community's rights to live by these laws without infringing upon the rights others. In this sense, the right to an open public space for which Rachel Woodlock argues so well should be complemented by robust protection for freedom of conscience, what she calls the right to "follow their faith's code of living voluntarily". I suspect that these issues will only become an explicit part of the national discourse once Australia gets a bill of rights which allows these boundaries to be adjudicated.
Justin Glyn SJ | 24 July 2017


Thank you, Rachel, for your wise and comprehensive article. So much possibility for a community of diversity is lost when people claiming to have Christian values see the stranger in their midst as the enemy. Earlier in my lifetime, the enemy were other Christians. Genuine knowledge of one's own and each other's ways and laws leaves room for challenge and hospitality.
Alex Nelson | 25 July 2017


I think Justin, you are looking at religious Law, of any sort, Christian; Muslim; Jewish; Hindu and any other as relating to voluntary adherence to what are supposedly purely religious matters. Sadly, these purely religious matters include things like marriage; divorce (including annulment in the Catholic Church); inheritance (very much part of Sharia) and other such difficult areas where religion and our Civil Law may be in conflict. At present Civil Law would override any religious law. We do not need a Bill of Rights for this. Sadly, even though Civil Law overrides religious law, it does not, in certain cases, prevent real problems, as when a Jewish husband refuses to give his wife a 'get' (divorce document) which would allow her to remarry within her religious tradition. There is no Civil or Jewish Law remedy for this even though it is a manifest injustice. I am also mindful of the situation in the Lebanon and Israel, where the various religious authorities have complete control over marriage laws. Hence a Christian cannot marry a Jew in Israel or a Muslim in Lebanon. Fortunately in Australia we are totally secular in matters of personal law.
Edward Fido | 25 July 2017


Thanks, Edward. I suspect we may be coming at the same problem from two different angles. As you say, there are issues with the application of religious law even given that civil law reigns supreme (in the eyes of the State, at least). However, giving civil law an override in these hard cases would seem (to me, at least) to be an impermissible encroachment on freedom of conscience (especially given judges' lack of expertise). There are equally issues going the other way. In Canada (and potentially, in Australia too, if the legislation goes ahead), there is a debate as to whether Catholic healthcare workers are obliged to offer medical assistance in dying (aka active euthanasia) to patients requesting it. Both the marriage and euthanasia questions raise the issue of freedom of conscience in different ways - and how that freedom bumps up against both individual rights and civil law. We are not yet having these discussions in explicit terms in Australia - something which I suspect may be aided by a Bill of Rights (which would at least give us the legal vocabulary to have these discussions in a public forum).
Justin Glyn SJ | 26 July 2017


I take your point Justin although we may disagree on its solution. In Victoria there have been voices raised already suggesting that, if the Catholic health system refuses to allow euthanasia to be performed in its hospitals, funding for those hospitals should cease. The cessation of that funding would be a counterproductive disaster for Victoria. There is now a strong anti religious movement in Australia which raises its head on matters of importance. A letter to the Australian last Monday 24-7-17 by Anne Riddell was subheaded 'Church must not obstruct well-designed system for voluntary euthanasia'. The tenure of this seemed to me very similar to the reporting of Julian Porteous to the Tasmanian Human Rights Commission for circulating a pamphlet on the traditional Catholic view of marriage to the parents of children who attended Catholic schools. Obviously, in the view of certain citizens committed to some causes, the Church has no right to speak or act in these situations. I am reminded of what is happening in officially Lutheran Sweden where I believe the government is putting strong pressure on the State Church to force all its pastors to perform same sex marriage ceremonies.
Edward Fido | 26 July 2017


Hi Edward It is really immaterial as to what Christian group Rachel Ker is monitoring the attitude of traditionalists, both Christian and otherwise, for; although there are marriage equality groups in both the Anglican and Uniting Churches. It happens that the attitude of most Catholics on this question also cleaves towards the liberal end of the scale and that should be enough to alert you to the fact that the voice of the People of God, post-Vatican II, is not confined to that expressed by the episcopate alone but would in several theological circles also require to be met by the principle of consent of the faithful.
Dr Michael Furtado | 27 July 2017


Michael Furtado: “It happens that the attitude of most Catholics on this question also cleaves towards the liberal end of the scale and that should be enough to alert you to the fact that the voice of the People of God, post-Vatican II, is not confined to that expressed by the episcopate alone but would in several theological circles also require to be met by the principle of consent of the faithful.” Theology, like law, is a technical art. Laypeople present their views in court but it takes a technician to decide the outcome or instruct the jury on how to go about it. The lay faithful serve as the vast bank of experiences produced when life hits religion, but it takes technicians to ratify what the experiences mean.
Roy Chen Yee | 03 August 2017


Woking codes of law contain three main and distinct categories: The actions required or obligatory, the actions permissible, and those prohibited or restricted. Often the clash of cultures debate confuses these and finds a "conflict" between codes where there is none. Using Rachel's simple passage on different religious codes, eating pork is permitted by my own religion and under Australian law, but it is certainly not obligatory (good for me who prefers other meats). Those who abstain on religious grounds are not breaking Australian law. This analogy also applies to more weighty concerns. Some cultural/religious laws permit forms of oppression such as domestic violence, however it is doubtful these actions compulsory for the followers. What is also forgotten is that most of us already live with several law codes whether religious or not. Pornography, for example, has been permitted and promoted with very light restrictions by Western societies for decades, yet it quite rightly defined as a termination offence by most corporations.
Kevin Wilson | 09 August 2017