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" Legal Conceptions of Sexual Violation in Late Islamic Law and Modern Jordan "
Lowe, Julie Frances
Fadel, Mohammad
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Latin Dissertation
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| Language of Document
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English
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| Record Number
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1108683
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| Doc. No
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TLpq2467809348
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| Main Entry
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Fadel, Mohammad
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Lowe, Julie Frances
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| Title & Author
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Legal Conceptions of Sexual Violation in Late Islamic Law and Modern Jordan\ Lowe, Julie FrancesFadel, Mohammad
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| College
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University of Toronto (Canada)
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| Date
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2020
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| student score
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2020
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| Degree
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Ph.D.
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| Page No
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281
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| Abstract
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Despite the miscarriages of justice that occur when modern governments purport to implement Islamic laws on rape, and despite continuing interest among some Muslims in present-day applications of Islamic law, not enough research exists on the approach to sexual violations in Islamic jurisprudence. Further, little is known regarding the legal approach of most Muslim-majority countries to sexual violence. Therefore, this dissertation addresses two main questions: First, how does Islamic law, as conceived by the Ḥanafī, Mālikī and Shāfīʿī schools from the 15th CE/9th century onward, conceptualize sexual violence? Second, how does the law in Jordan conceptualize this issue? Based on analysis of fiqh and fatwās, and building on Hina Azam’s work, Muslim jurists primarily conceive of rape as a moral transgression against God rather than a crime against an individual victim. The association of rape with zinā (illicit intercourse), where jurists aim to cover the sin, precludes prosecution and compensation in many rape cases and impacts related issues such as reporting of sexual violence and standards of coercion. Further, alternate approaches to rape under usurpation (ightiṣāb) and banditry (ḥirāba), as well as tort compensation for injuries from sexual violence, are intertwined with moral considerations. Moreover, the moral framework combined with gendered concepts leads to additional difficulties for male victims. Analysis of criminal legislation, commentaries and a sample of court decisions indicates that Jordan has adopted a secular system for criminal law that contains little direct relation to Islamic jurisprudence. However, despite largely treating sexual violence as a crime against an individual victim, Jordan maintains a partially moral notion of sexual offences. While the moral slant has decreased in recent years, and although court judgments do not explicitly incorporate notions not found in the Criminal Code, there is some indication of non-written social mores guiding aspects of judicial proceedings.
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Criminology
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International law
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Islamic studies
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Law
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Sexuality
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