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published_or_final_version / Education / Doctoral / Doctor of Philosophy

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The operationalization of Islamic criminal system by some Muslim jurisdictions in the post-colonial era raises many human rights questions. On the one hand, the system is perceived as inhuman, cruel and degrading, and on the other, as gender discriminatory and iniquitous. This thesis focuses on the second part of this critique. Discrimination on ground of gender in Muslim states has been one of the major human right issues that engage scholars in heated debates on whether or not gender justice exists under the Islamic criminal regime. In relation to the offences of homicide and bodily hurt, discriminatory principles are often justified on economic argument. Interestingly, these principles are characterised as divinely ordained, thus unchangeable to eternity. However, the interplay between the divine and the human elements in the development of the regime is mostly ignored and it is often difficult to ascertain from where such principles emanate. This thesis examines the classical theorization, the Sharīʿah-inspired penal codes of Pakistan and the 12 Northern states of Nigeria, as well as case law, with a view to ascertaining whether the so-called gender justice deficit is intrinsic to the divine or is mere human construction. The findings of the thesis reveal existence of an egalitarian tone in the divine. The divine however has left considerable room for human agency to employ construction that best suits its circumstances. This enabled the classical jurists to differ on many issues that raise gender concerns in the modern world. Biological determinism plays a significant role in the construction of the divine. What appears to influence the jurists include cross-contextual analogy by creating linkages between unrelated themes and infiltration of customary practices. The thesis posits that the problem of gender justice under the regime can best be addressed from within the system. This is possible when contemporary Islamic scholarship engages in thorough intellectual analysis of the classical fiqh literature. This is likely to appeal to Muslims in whose territories the law operates. The thesis therefore suggests participation of all stakeholders, including women, in criminal policy formulation. This would entail employing affirmative action measures that would guarantee participation of women in both legislative and judicial process.

This dissertation focuses on religious fundamentalism. For the past two decades, fundamentalism has been discussed in the social sciences as a style of belief by which beleaguered followers attempt to preserve their distinctive identity as a people in the face of modernity and secularization. However, it is my contention that this universalistic approach often undermines religious diversity and oversimplifies cultural particularities. Moreover, I find that the term ‘fundamentalist' is, more often than not, a label for the ‘Other'; one that is invariably negative and thus, dismisses and vilifies. With this argument in mind, in my research I present how different Muslim groups in Madrid and Barcelona understand the concept of ‘fundamentalism'—a term widely used by the Spanish media after the Madrid bombings claimed by Al-Qaeda in 2004. By examining how different Muslim groups repeat, alter, adapt, and argue ‘fundamentalism' in their daily lives, I explore who uses the term, under what circumstances and with what intent. In doing so, we also analyze broader, everyday problematics pertaining to Muslims in Spain. Rather than providing an universalistic definition of ‘fundamentalism' that offers an all encompassing meaning, in my research I present an analysis that is entangled with the individual. Centered on agency, this work first examines the category-construction process of the concept of fundamentalism; second, it explores how Muslims in Madrid and Barcelona understand this concept; and finally, it analyzes the the [sic] how the popular rhetoric of fundamentalism impacts the ways in which some Muslims their religiosity in a Muslim-minority context like Spain.

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There is a perception, held not only by scholars in the field but by many Muslims as well, that Islamic law in Indonesia is strongly colored by "non-Islamic" local custom (adat). Historically, this notion has given rise to a number of movements which have sought to ensure that religious beliefs and practices be restored and brought into harmony with the primary sources of Islam, the Qur'an and Sunnah. One of these movements was led by Ahmad Hassan (1887-1958), acknowledged by many as a great scholar and a tireless advocate of the need for renewal (tajdid) and reform (islah). This study analyses the significance of Hassan's role in the movement for Islamic legal reform and examines in particular his legal theory (usul al-fiqh) and its application to problems of substantive law (fiqh). In terms of Indonesia (and perhaps other regions as well), this is a new approach; for few works on Islamic law in Indonesia concerned with either the Islamic judicial system or substantive law devote any significant attention to usul al-fiqh, which, in fact, provides the foundation for these institutions, not to mention other aspects of Islamic teaching as well. / As a reformer, Hassan was sometimes led to adopt bold, even extreme positions. He attacked his traditionalist opponents for placing too much faith in the doctrines of particular legal schools when seeking solutions to the problems faced by Muslims. Too often this led them to base their decisions on individual opinion, which placed them at a doble remove from the two primary sources. Instead Hassan advocated constant ijtihad, or at least ittiba', in the belief that the door had never been shut on direct analysis of scripture. In adopting this position, Hassan developed a sound, consistent and text-based approach to usul al-fiqh that was adopted after his death by his followers and students. Indeed, this approach has even had a substantial effect on his opponents, whose stance has changed subtly to reflect many of Hassan's concerns.

This thesis investigates past and present understandings and applications of khul', synthesizing existing scholarship on the subject as well as H&dotbelow;anafi juristic doctrines. As khul' is part of a larger concept, namely, divorce initiated or approved by women, attention will also be given to the other options that Islamic law---or, on some points, cultural practices---grants women in order to obtain release from the marital bond. A comparative analysis between the application of marriage and divorce laws under the Ottomans and in contemporary Egypt will then be conducted with a view to shedding light on the effect that the rise of the nation-state has had on gender inequality.