Gender and Human Rights in Islam and International Law: Equal before Allah, Unequal before Man?

Gender and Human Rights in Islam and International Law: Equal before Allah, Unequal before Man?

by Shaheen S. Ali, S. S. Ali, Shaheen Sardar Ali
     
 

ISBN-10: 9041112685

ISBN-13: 9789041112682

Pub. Date: 01/01/2000

Publisher: Brill Academic Publishers, Inc.

This important study offers a conceptual analysis of gender and human rights under Islamic law, state law and international law.

Overview

This important study offers a conceptual analysis of gender and human rights under Islamic law, state law and international law.

Product Details

ISBN-13:
9789041112682
Publisher:
Brill Academic Publishers, Inc.
Publication date:
01/01/2000
Pages:
358
Product dimensions:
6.58(w) x 9.52(h) x 0.99(d)

Table of Contents

List of Abbreviationsxiii
Table of Casesxvi
Table of Treatiesxix
Table of Statutesxxi
Introduction1
Part IWomen's Human Rights in Islam: Initiating the Discourse9
Chapter IHuman Rights in Islam and International Law: A Conceptual Analysis11
The Definitional Debate and Nature of Human Rights12
Foundations of Human Rights in the 'Western' Tradition16
Sources of Human Rights in Islam19
'Secular' and 'Western' versus 'Divine' and 'Islamic': A Clash of Traditions?25
Rights-based and Duty-based Human Rights: A Valid Distinction?29
Islam, Human Rights and Individualism33
Human Rights as Hierarchical Entitlements? Rights of White, Free, Male, Elite in the 'Western' Tradition and Entitlements of Adult, Free, Male, Muslims in the Islamic36
Concluding Remarks40
Chapter IIWomen's Human Rights in Islam: Towards a Theoretical Framework42
From the Saintly to the Evil? Conflicting Images of Women in Quran and Hadith Literature and Implications for Women's Human Rights in Islam44
Ibadaat and Muamalaat: Esposito's Hierarchical Notion of Rights in the Islamic Tradition47
Women's Human Rights in Islam as Categories of Entitlement49
The Non-Discriminatory Categories of Rights, Ibadaat and Women's Human Rights50
The Protective and Corrective Category, Muamalaat and Women's Human Rights56
Discriminatory Category of Rights: The Verse 4:34 Debate63
Evidentiary Value of Women's Testimony70
Inheritance Rights of Women: A Fixed, Unchangeable Share or the Basic Minimum?72
Polygamy: An Acknowledgement of 'Different Needs' or Statement of Male Superiority?73
Hijab (Veiling of Women): A Prescription for Female Modesty or Symbolic Division of Muslim Space on the Basis of Gender?75
Gradualism as a Method of Interpretation for Women's Human Rights in Islam79
Evolutionary Approach to Women's Human Rights in Islam85
Equal before Allah, Unequal before Man? Dilemma of Women in the Muslim World87
Part IIWomen's Human Rights in Islam: Application in Muslim Jurisdictions89
Chapter III'Public' and 'Secular'? Women's Human Rights Under Constitutional Law92
The Public/Private Dichotomy, Legal Pluralism and Women's Human Rights in Muslim Jurisdictions92
Constitutionally Guaranteed Equality for Women and the 'Secular' 'Public' Sphere: Replicating the Ibadaat Category of Non-Discriminatory Rights in Islam?94
Application of the Equality Norm as Espoused by Article 25 of the Constitution of Pakistan: An Overview in the Light of Reported Case-Law96
Islamic Provisions and the Constitution of Pakistan: Conflicting or Complementary Norms?98
'Islamisation' of the Constitution: Redefining the Equality Norm?101
Evidentiary Value of Women and 'Islamisation' of Laws in Pakistan102
The 'Islamic' Criminal Laws: Another Blow to Equal Rights Norms of the Constitution of Pakistan105
Insertion of Article 2A as a Substantive Provision of the Constitution: The Ensuing Debate and Implications of Women's Rights109
The Protective/Corrective Muamalaat Category of Women's Human Rights in the Public Sphere in Pakistan: Testing the Limits of Affirmative Action Measures112
Economic Rights of Women in Pakistan: Rhetoric and Reality112
'Seek Knowledge from the Cradle to the Grave': Muslim Women and the Right to Education116
'The Strong Muslim (Believer) is Better and Closer to God than the Weak One.' Women's Access to Basic Health Facilities121
Women and Employment Rights: Breaking Down the Public/Private Dichotomy?124
Muslim Women and the Right to Political Participation129
Concluding Remarks136
Chapter IV'Private' and 'Islamic'? A Discussion of Muslim Personal Law and Implications for Women's Human Rights138
Background to the Legislation Affecting Family Law in Pakistan: An Overview139
The Period of Muslim Rule in the Sub-Continent140
The Early Period of British Rule in India141
The 'Anglicisation' of the Administration of Justice142
Personal Law left Largely Untouched143
Custom as Source of Law: Attempt at Codification144
Codification of Islamic Family Law146
Child Marriages Restraint Act 1929147
The Dissolution of Muslim Marriages Act, 1939 (DMMA)147
The Muslim Family Law Ordinance, 1961 (MFLO)148
Is An Adult Muslim Woman Sui Juris? A Discussion on the Legal Status of Women in Pakistan with Reference to the Saima Waheed Case150
Definition of Marriage151
Dower153
Valid, Irregular and Void Marriages154
Marriage in Islam: Civil Contract or Sacrament?157
Guardianship in Marriage (Jab'r), Equality in Marriage (Kafat) and Option of Puberty (Khiyar-ul-Bulugh)160
Consent in Marriage by Adult Muslim Woman Versus Consent to Marriage by Wali: Competing or Complementary Rights?161
Kafat or Equality in Marriage163
Guardianship in Marriage and Khiyar-ul-Bulugh166
The Saima Waheed Case: Opening Up Pandora's Box?170
Chapter VCustomary Practices and 'Cultural Islam': Emergence of the 'Operative' Islam Law on Women's Human Rights173
The Role of Customary Practices in Perpetuating Gender Hierarchies in Muslim Jurisdictions: The Case of the North-West Frontier Province of Pakistan173
Crisis of Muslim Identity, Islamic 'Revivalism' and Implications for Women's Human Rights in Islam183
Emergence of the 'Operative' Islamic Law on Rights of Muslim Women187
Part IIIInternational Discourses on Women's Human Rights: Impact on Women in the Islamic Tradition193
Chapter VIDevelopments of the International Norm of Non-Discrimination on the Basis of Sex: An Evaluation of Women's Human Rights in International Law195
Development of the International Norm of Non-Discrimination on the Basis of Sex: An Overview196
The UN and Regional Approach to Women's Human Rights198
From Mexico to Beijing: Mainstreaming Women's Human Rights206
The Women's Convention: A Synthesis of the International Legal Norm of Non-Discrimination on the Basis of Sex?212
Women's Rights and Child Rights: Making the Linkages216
'Complementarity' Equals 'Equality'? A 'Muslim' View of the Norm of Non-Discrimination on the Basis of Sex218
Non-Discrimination on the Basis of Sex: An Evolving Norm of Customary International Law?231
Chapter VIIResponse of Muslim States to International Human Rights Instruments Affecting Women: A Discussion in the Light of Reservations to the Women's Convention238
The Reservations Regime of Multilateral Treaties and its Applications to Human Rights Instruments: An Overview of the Contemporary Position in International Law240
Reservations to the Women's Convention: An Overview of the Debate in the Muslim Context246
Reservations to the Women's Convention by Muslim States Parties: An Analysis249
Categories of Reservations to the Women's Convention: General, Specific, and Reservations based on Repugnancy to Islamic Law and Shari'a250
The 'Most Reserved' Articles of the Women's Convention by Muslim States: 'Islamic' or 'Secular' Reservations?252
Application of 'Operative' Islamic Law in the Context of International Human Rights: The Case of Pakistan's Ratification of the Women's Convention265
Addressing Reservations to the Women's Convention by Muslim States: Response of the International Community272
Conclusion: International versus Islamic Schemes of Women's Human Rights: A Move Towards Convergence?277
Appendix I287
Appendix II299
Appendix III307
Appendix IV315
Glossary319
Bibliography325
Index349

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