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islamic jurisprudence lecture 11

Tags: islamic jurisprudence

Azam - Sexual Violation in Islamic Law

Chapters 1-2

  • Propietary approaches vs theocentric ones
  • martial rape undiscussed
  • sets up the dichomety that the pre-Islam near east the proprieary approach was dominiant
  • female sexuality was propritary, women’s subjectivity did not matter, belonged to husband or father
  • theocentric - affront to rights, rights are given by god, rape is an affront to god
    • propritary approach is absorbed into the theocentric one
  • was it two separate things that became one thing later?
  • violence inflicted on the body - does this have a ritual cadence?
    • paying a fine vs punishment of the bodies
  • is the idea of a propritary vs theological crafted in islamic law and extrapolated backwards into time problematic?
  • what spaces are the jurists interacting with when dealing with issues of violence against women?
  • is treating the all the laws with a theortical frame good for the study?
    • the authorizing discourse used as justification is “this is islamic law”, and she is trying to address that on a normative level
    • "

3-4

  • Maliki approach - dual penalty approach

    • hadd punishment and the property punishment
    • freedom owns property, free woman owns her own body
    • minimum and equitable dower
    • sexuality for women is similar between free or enslaved
    • the commodity of sexuality can be misappropriated
      • thus a free woman is the owner of her sexuality, so payment should go to her
      • coercieve zina and property crime (transgression against crime and transgression against property crime)
    • baber johnansen
      • private ownership of property is central to islamic law
      • does private property underpin rape laws?
        • kiesha ali
        • zakat and personal wealth?
    • manaf3 - capacity, usufroctory benefit
      • anything can have manaf3
    • zina is diametrically opposed to marital sex
    • divine claims are more important than personal claims
      • however, if the woman did not consent to zina, and the satisfaction of the god and satisfaction of the person are not mututally exclusive
      • the intertwining of the divine claims and personal ones

  • Hanafi approach - single penalty

    • hanafis believe the manaf3 of people are not mal, they are only rendered manaf3 under a contract
    • generally propriatary view of sexuality
    • marriage requires an exchange value, difference is that the hanafi school does not have the “proprietary notion of subjectivity”
    • linguistic point - never use istihab
    • hadd only punishment for coercive zina
    • “similar to double jepoardy” - can’t have two punishments for one crime, you have to identify which crime you want to prosecture
      • hadd (crime against god) and mahr (possibly licit sex)
        • means that you have to understand the mahr whether it’s licit or illicit, the volition of the human subject has no meaning
      • raises the questions of the dower in coercive zina
    • zina can’t be the basis of trade for dower, because then it’s similar to paying for dower
    • coercive zina provokes divine and interpersonal claims
    • extremely little interest in the violition of the women
    • central argument - hadd and sadaq (dower) are incompatible
      • dower vs dowery
      • dower - payment that is given by the husband to the wife
      • could you pay sadaq retroactively?

  • underage boy and older woman

    • underage boy is different because he has not developed sexually (very minority position)
    • understanding of consent is fundalmentally different for a woman than a man

  • do hanafi judges primarily ask themselves the question on the licitness of the sexual act, whereas maliki school asks whether the source of the payment

  • ta’zir - is there punishment for the violence to her

    • if the payment is the same as the payment for marriage, is there a fine?

5-6

  • athar and jurisprudence
  • hanafis tried to avoid hadd at all costs, while the malikis didn’t
    • however, a distcintion must be made between the plaintiff and the witnesses
      • four adult men and witnesses (quranic), and no compulsion within the hanafi school to witness
    • no way to pursue rape charges without zina
    • largely a crime against god alone
    • were all cases of aversion to hadd, was there differentiation?
    • social values cannot be read off of these legal categories
    • why is punishment greater for a woman who’s been married
  • sunni law - if a woman’s ever had licit sex, then any sex afterwards is illicit
  • why are slave punishments set at half? their legal status?
    • they have diminished agency
    • formally, there is a hadith

  • concept of shibha - how did this evolve over time?

  • maliki’s accept pregenacy as circumstantal evidence
    • allows victims to enter into court against the assailant
    • what could prove compensation
    • 3luq - at least two eyewitnesses
  • divergence between maliki jurists and hanafi ones, was the pursuit of propriatary principals about upholding consistency elsewhere?
    • maliki’s are also women friendly in divorce
    • maliki’s are where modern legistators took their divorce rulings
    • maliki’s tend to care much more about the women
  • hanafi school is the playing out of Kufan traditions against women
  • “step inside the discourses and try to view them from within”