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Gender Justice in Islamic Law: Homicide and Bodily Injuries

Gender Justice in Islamic Law: Homicide and Bodily Injuries

Author: Musa Usman Abubakar
Publisher: Hart Publishing
ISBN: 9781509915095

Published In: June 2018
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509943586

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This book seeks to interrogate the classical fiqh formulation on gender and homicide with a view to exploring further the debate on whether 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 regime and the accusation that it discriminates on the basis of gender. It argues that any attempt to critique 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.

The book does this by drawing on classical fiqh literature, contemporary literature, legislative sources and relevant case law.

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 Shari?ah

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 ?Aqilah in Balancing Gender Disparity

I. Introduction

II. Development of ?Aqilah before Islam

III. Classical Fiqh Discourse on ?Aqilah

IV. Extent of ?Aqilah’s Obligation

V. Rethinking ?Aqilah in the Modern Era

VI. Woman’s Individuality as Property Owner

VII. ?Aqilah Based on Migrant/Helper Dichotomy

VIII. ?Aqilah Based on the Diwan System

IX. Contemporary Relevance of ?Aqilah

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-tarji?) and Abrogation (Al-naskh) Methods

I. Introduction

II. Qur?an 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 Qi?a? and Diyat Ordinance

IV. Role of the Council of Islamic Ideology

V. Impact of Gul Hassan’s Case

VI. Overview of Qi?a? 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 Qi?a? 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

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