Gender Justice in Islamic Law: Homicide and Bodily Injuries

Description

This book seeks to interrogate the classical fiqh formulation on gender and homicide with a view to exploring further the debate on whether the so-called gender injustice in Islamic law is a human creation or attributable to the divine sources of the Qur’an and Sunnah. The study is in response to the increasing criticism of the Islamic criminal law regime and the accusation that it discriminates on the basis of gender. It argues that any attempt to critique a religious question through the lens of traditional Western human rights ideals would be resisted by the vast majority of Muslims. An examination of the question and any suggested solutions offered would be much more effective if situated within the system they identify with; that is to address the question of gender justice deficit from within the Islamic legal tradition. Focusing on Nigeria and Pakistan, the book achieves this by drawing on classical fiqh literature, contemporary literature, legislative sources and relevant case law. Preface Acknowledgements Contents Notes on Transliteration List of Acronyms Table of Cases Table of Primary Legislation Table of Secondary Legislation List of Reports Part I: Theoretical Perspective Classical Discourse on Homicide, Bodily Injuries and Gender 1. Gender Justice in Islam I. Introduction II. Concept of Justice III. Justice in Islamic Jurisprudence 2. The Dividing Line between the Divine and Human I. Introduction II. Conceptualising the Term Sharīʿah III. Sources of Islamic Law IV. Dealing with Contradictory Narratives V. Conclusion 3. Homicide, Bodily Injuries and Gender in Fiqh Literature I. Introduction II. Homicide in Pre-Islamic Arabia III. From Vengeance Spree to Just Retribution IV. Retribution for Loss of Life V. Compensation for Loss of Life VI. Retribution in Bodily Injuries VII. Compensation for Bodily Injuries VIII. Conclusion 4. Juristic Use of ʿĀqilah in Balancing Gender Disparity I. Introduction II. Development of ʿĀqilah before Islam III. Classical Fiqh Discourse on ʿĀqilah IV. Extent of ʿĀqilah’s Obligation V. Rethinking ʿĀqilah in the Modern Era VI. Woman’s Individuality as Property Owner VII. ʿĀqilah Based on Migrant/Helper Dichotomy VIII. ʿĀqilah Based on the Dīwān System IX. Contemporary Relevance of ʿĀqilah X. Conclusion 5. Arguments and Counter-arguments on Asymmetric Diyah across Genders I. Introduction II. Testimony and Share of Inheritance as Markers of Inferiority III. Female Intellectual Inferiority Argument IV. Economic Argument V. Conclusion 6. Addressing the Conflicting Narratives Using Elimination (Al-tarjīḥ) and Abrogation (Al-naskh) Methods I. Introduction II. Qurʾān on Homicide and Bodily Injuries III. Addressing the Seeming Discrepancy in the Qur’anic Verses IV. Prophetic Sayings in Murder and Bodily Injuries Across Genders V. Creating a Chronology between the Narratives VI. The Half Diyah Narration in the Earlier Hadith Literature VII. The ‘One Third’ Formula in Bodily Injuries VIII. Opinion of Individual Companions as Source of Half Diyah Stipulation IX. Conclusion Part II: Case Studies Contemporary Application of Islamic Legal Principles on Homicide and Bodily Injuries in the Muslim World 7. Case Study of Pakistan I. Introduction II. Overview of Pakistan’s Constitutional and Legal Development III. Evolution of the Qiṣāṣ and Diyat Ordinance IV. Role of the Council of Islamic Ideology V. Impact of Gul Hassan’s Case VI. Overview of Qiṣāṣ and Diyah Provisions VII. Emerging Gender Issues under the Ordinance VIII. Conclusion 8. Legitimising Gender Violence through Judicial Process I. Introduction II. Judicial Attitude to Honour Crimes III. Provocation under the Pre-1990 Legal Framework IV. Judicial Legislation in the Post 1990 Regime V. Further Step to Protect Women against Honour Crimes VI. No Religious Justification for Honour Killing VII. Debunking other Arguments Justifying Honour Killing VIII. Conclusion 9. Case Study of Nigeria I. Introduction II. Historical Background of Nigeria III. The Legal Framework of Qiṣāṣ and Diyah IV. Provisions of the Code Detrimental to Women V. Conclusion 10. Judicial Insensitivity to Gender Issues I. Introduction II. Structure of Courts in Nigeria III. Consequences of Undermining State Legislation IV. Uncertainty of the Amount of Diyah V. Breaking the Jinx: Hope and Despair VI. Conclusion Epilogue Glossary Bibliography Index