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.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:569001 |
| Date | January 2012 |
| Creators | Abubakar, Musa Usman |
| Publisher | University of Warwick |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://wrap.warwick.ac.uk/53630/ |
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