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Sexual Violation in Islamic Law: Substance, Evidence, and Procedure

In this book, writer Hina Azam, explores formative and classical Islamic jurisprudence (fiqh) within two of the earliest Sunni schools of law: the Hanafi and the Maliki traditions.

This book provides a detailed analysis of Islamic juristic writings on the topic of rape and argues that classical Islamic jurisprudence contained nuanced, substantially divergent doctrines of sexual violation as a punishable crime. The work centers on legal discourses of the first six centuries of Islam, the period during which these discourses reached their classical forms, and chronicles the juristic conflict over whether or not to provide monetary compensation to victims. Along with tracing the emergence and development of this conflict over time, Hina Azam explains evidentiary ramifications of each of the two competing positions, which are examined through debates between the Ḥanafī and Mālikī schools of law. This study examines several critical themes in Islamic law, such as the relationship between sexuality and property, the tension between divine rights and personal rights in sex crimes, and justifications of victim’s rights afforded by the two competing doctrines.

  • Addresses a topic of pressing concern (violence against women) at a time when the issue of women’s rights and gender violence is at the forefront of women’s and human rights efforts
  • Provides a historically and intellectually nuanced analysis of Islamic law at a time when many Muslim countries are seeking to implement sharia
  • Analyzes Islamic law from a religious studies approach, addressing theological, ethical and narrative themes

About the Author

Hina Azam is an Assistant Professor of Middle Eastern Studies at the University of Texas, Austin. She has published articles in the Journal of Law and Religion, the Journal of Middle East Women’s Studies, and Comparative Islamic Studies. She has contributed to the edited volumes Feminism, Law, and Religion (2013) and A Jihad for Justice: Honoring the Work and Life of Amina Wadud (2012), as well as to The Oxford Encyclopedia of Islam and Law (forthcoming).

Table of Contents

Introduction

  Sexual Violence in Contemporary Muslim Societies

 Key Themes and Arguments of This Book

Sources and Periodization

Terminology: “Sexual Violence,” “Sexual Violation,”  and “Rape”

Limits of This Study

  1. Sexual violation in the Late Antique Near East

  Ancient Mesopotamian Laws

Mosaic and Rabbinic Laws

Roman and Christian Imperial Legislation

Pre-Islamic Arabian Custom

Conclusion
2. Tracing rape in early Islamic law

Theocentric Ethics and the Moralization of Sexuality

Legal Agency and Its Impediments

Proprietary Sexual Ethics and the Idea of Sexual Usurpation

Divine Rights (Huquq Allah) and Interpersonal Rights (Huquq al-‘Ibad)

Constructions of Rape in the Legal   Āthar

Conclusion
3. Rape as a property crime – the Mālikī approach

  Sexuality as a Commodity and the Dower as an Exchange Value

  Sexual Violation as Property Usurpation:   Ghasb and   Ightisab

Upholding Interpersonal Rights alongside Divine Rights

Conclusion
4. Rape as a moral transgression – the Ḥanafī approach

The Theocentric Approach to Sexual Violation

Marriage versus Fornication, Dower versus   Hadd

Additional Reasons for Rejecting the Dower

Compensation
5. Proving rape in Ḥanafī law – substance, evidence, procedure

  The Substance of   Zina: Definition

Exceptions to   Zina

Punishing   Zina

Ramifi  cations of the Hanafi  Definition of Zina for Rape

Evidence and Procedure in Zina and Rape

Conclusion
6. Proving rape in Mālikī law – evidence, procedure, penalty

Unity and Diversity in Maliki Evidence and Procedure

Evidentiary Foundations: Pregnancy as Evidence of   Zina

Procedural Foundations: Launching an Accusation of Rape

Pregnancy as Evidence in Later Maliki Writings

Calibrating Penalties According to Substance and Evidence

Conclusion

Bibliographic Information

Title: Sexual Violation in Islamic Law: Substance, Evidence and Procedure

Author: Hina Azam

Publisher: Cambridge University Press

 Language: English

Length: 286 pages

ISBN: 978-1107094246

Pub. Date:  July 2015

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