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

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This important study offers a conceptual analysis of gender and human rights under Islamic law, state law and international law, and extends this analysis to a specific examination of the nature of women's rights in the Islamic tradition. It explores the disparity between the theoretical perspective on women's rights and its applications to Muslim jurisdictions, determined by elements of cultural practices, socio-economic realities and political expediences, and uses the example of Pakistan to demonstrate the divergence between the theory and practice of Islamic law in these jurisdictions. It discusses the concept of an emerging 'operative' Islamic law, which includes principles of Islamic law, secular codes and popular custom and usage.

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Product Details

  • ISBN-13: 9789041112682
  • Publisher: Brill Academic Publishers, Inc.
  • Publication date: 1/1/2000
  • Pages: 358
  • Product dimensions: 6.58 (w) x 9.52 (h) x 0.99 (d)

Meet the Author

Shaheen Sardar Ali is Professor of Law at the University of Peshawar, Pakistan, and a former Director of the Women's study Centre at the same university. She is the only woman legal academic holding the position of Professor of Law in Pakistan. In 1998, she gained a Ph.D. at the University of Hull, UK, and is currently based at the School of Law, University of Warwick, UK. She has extensive experience of gender and human rights issuess relating to Islam, and has written or contributed to numerous books and journals on the subject.
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Table of Contents

List of Abbreviations xiii
Table of Cases xvi
Table of Treaties xix
Table of Statutes xxi
Introduction 1
Part I Women's Human Rights in Islam: Initiating the Discourse 9
Chapter I Human Rights in Islam and International Law: A Conceptual Analysis 11
The Definitional Debate and Nature of Human Rights 12
Foundations of Human Rights in the 'Western' Tradition 16
Sources of Human Rights in Islam 19
'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 Individualism 33
Human Rights as Hierarchical Entitlements? Rights of White, Free, Male, Elite in the 'Western' Tradition and Entitlements of Adult, Free, Male, Muslims in the Islamic 36
Concluding Remarks 40
Chapter II Women's Human Rights in Islam: Towards a Theoretical Framework 42
From the Saintly to the Evil? Conflicting Images of Women in Quran and Hadith Literature and Implications for Women's Human Rights in Islam 44
Ibadaat and Muamalaat: Esposito's Hierarchical Notion of Rights in the Islamic Tradition 47
Women's Human Rights in Islam as Categories of Entitlement 49
The Non-Discriminatory Categories of Rights, Ibadaat and Women's Human Rights 50
The Protective and Corrective Category, Muamalaat and Women's Human Rights 56
Discriminatory Category of Rights: The Verse 4:34 Debate 63
Evidentiary Value of Women's Testimony 70
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 Islam 79
Evolutionary Approach to Women's Human Rights in Islam 85
Equal before Allah, Unequal before Man? Dilemma of Women in the Muslim World 87
Part II Women's Human Rights in Islam: Application in Muslim Jurisdictions 89
Chapter III 'Public' and 'Secular'? Women's Human Rights Under Constitutional Law 92
The Public/Private Dichotomy, Legal Pluralism and Women's Human Rights in Muslim Jurisdictions 92
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-Law 96
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 Pakistan 102
The 'Islamic' Criminal Laws: Another Blow to Equal Rights Norms of the Constitution of Pakistan 105
Insertion of Article 2A as a Substantive Provision of the Constitution: The Ensuing Debate and Implications of Women's Rights 109
The Protective/Corrective Muamalaat Category of Women's Human Rights in the Public Sphere in Pakistan: Testing the Limits of Affirmative Action Measures 112
Economic Rights of Women in Pakistan: Rhetoric and Reality 112
'Seek Knowledge from the Cradle to the Grave': Muslim Women and the Right to Education 116
'The Strong Muslim (Believer) is Better and Closer to God than the Weak One.' Women's Access to Basic Health Facilities 121
Women and Employment Rights: Breaking Down the Public/Private Dichotomy? 124
Muslim Women and the Right to Political Participation 129
Concluding Remarks 136
Chapter IV 'Private' and 'Islamic'? A Discussion of Muslim Personal Law and Implications for Women's Human Rights 138
Background to the Legislation Affecting Family Law in Pakistan: An Overview 139
The Period of Muslim Rule in the Sub-Continent 140
The Early Period of British Rule in India 141
The 'Anglicisation' of the Administration of Justice 142
Personal Law left Largely Untouched 143
Custom as Source of Law: Attempt at Codification 144
Codification of Islamic Family Law 146
Child Marriages Restraint Act 1929 147
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 Case 150
Definition of Marriage 151
Dower 153
Valid, Irregular and Void Marriages 154
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 Marriage 163
Guardianship in Marriage and Khiyar-ul-Bulugh 166
The Saima Waheed Case: Opening Up Pandora's Box? 170
Chapter V Customary Practices and 'Cultural Islam': Emergence of the 'Operative' Islam Law on Women's Human Rights 173
The Role of Customary Practices in Perpetuating Gender Hierarchies in Muslim Jurisdictions: The Case of the North-West Frontier Province of Pakistan 173
Crisis of Muslim Identity, Islamic 'Revivalism' and Implications for Women's Human Rights in Islam 183
Emergence of the 'Operative' Islamic Law on Rights of Muslim Women 187
Part III International Discourses on Women's Human Rights: Impact on Women in the Islamic Tradition 193
Chapter VI Developments of the International Norm of Non-Discrimination on the Basis of Sex: An Evaluation of Women's Human Rights in International Law 195
Development of the International Norm of Non-Discrimination on the Basis of Sex: An Overview 196
The UN and Regional Approach to Women's Human Rights 198
From Mexico to Beijing: Mainstreaming Women's Human Rights 206
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 Linkages 216
'Complementarity' Equals 'Equality'? A 'Muslim' View of the Norm of Non-Discrimination on the Basis of Sex 218
Non-Discrimination on the Basis of Sex: An Evolving Norm of Customary International Law? 231
Chapter VII Response of Muslim States to International Human Rights Instruments Affecting Women: A Discussion in the Light of Reservations to the Women's Convention 238
The Reservations Regime of Multilateral Treaties and its Applications to Human Rights Instruments: An Overview of the Contemporary Position in International Law 240
Reservations to the Women's Convention: An Overview of the Debate in the Muslim Context 246
Reservations to the Women's Convention by Muslim States Parties: An Analysis 249
Categories of Reservations to the Women's Convention: General, Specific, and Reservations based on Repugnancy to Islamic Law and Shari'a 250
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 Convention 265
Addressing Reservations to the Women's Convention by Muslim States: Response of the International Community 272
Conclusion: International versus Islamic Schemes of Women's Human Rights: A Move Towards Convergence? 277
Appendix I 287
Appendix II 299
Appendix III 307
Appendix IV 315
Glossary 319
Bibliography 325
Index 349
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