Academic journal article Duke Journal of Comparative & International Law

Women's Rights and Shari'a Law: A Workable Reality? an Examination of Possible International Human Rights Approaches through the Continuing Reform of the Pakistani Hudood Ordinance

Academic journal article Duke Journal of Comparative & International Law

Women's Rights and Shari'a Law: A Workable Reality? an Examination of Possible International Human Rights Approaches through the Continuing Reform of the Pakistani Hudood Ordinance

Article excerpt

Hudood laws are a tool in the hands of men--with these laws they can rape women and be totally unaccountable.... Many religious scholars are producing research which says that these laws are not in accordance with the Holy Koran. They are political tools to control women in our country. (1)

The divides are not Islam and western society, the divide is between people who have different values. We must promote connections between people who want to contribute to human values. People who share that commitment can collaborate across cultural divides. (2)

INTRODUCTION

There is continued debate over the ability to reconcile Islamic Shari'a (3) law with universal human rights, specifically women's rights. (4) With the United States' war against terror and the war in Iraq, tensions are mounting and cultural divides between Islamic nations and the western world seem to be widening rather than moving toward consensus. Scholars have argued human rights work in these countries cannot be effective so long as there is a perception of "exclusive Western authorship." (5) This association of the West with human rights has been tied particularly to women's rights, with Islamic traditionalists arguing female liberation would lead to a degeneration of the traditional Islamic family. (6)

This Note challenges the concept of international human rights as separate from the possibility of human rights protection under Shari'a law, using Pakistan's Hudood Ordinance of 1979 (Ordinance) as a case study. The unreformed Ordinance, under Shari'a law, placed rape in the same category as adultery (zina). (7) The law has garnered international attention through attempted reforms and compromises that would make the law more equitable to female rape victims; these reforms have been adamantly opposed by Islamic fundamentalist groups in Pakistan but were partially passed in November 2006. (8)

Part I examines Pakistan's emergence as an independent nation, along with its religious identity and the continuing tension between the secular and religious legal systems, including an analysis of the Hudood Ordinance and its evolution. Part II explores why international human rights mechanisms have been unsuccessful in achieving significant reforms and how they could be modified or used in tandem with Islamic conventions to bring about change for women. Part III hypothesizes on workable realities within Pakistan, using both international instruments and working within the current constructs of Shari'a and secular law. Part IV concludes that the international human rights movement must be flexible in its methods, partnerships, and approaches to Shari'a law, particularly within countries, such as Pakistan, which have formed much of their national identities through their religious beliefs. Shari'a law provides a framework for women's rights, but only through solidified bodies of law and through certain interpretations. Through flexibility and inclusiveness, these constructs can bridge the gap between Shari'a and universal international human rights doctrines.

I. HISTORY OF PAKISTANI LAW AND RELIGIOUS IDENTITY

A. Pakistan's Identity

The nation-state of Pakistan was formed with the partition of British India in 1947. (9) The division was along religious lines, creating a Hindu majority in India and a Muslim majority in Pakistan. The formal separation was an attempt to end the violence that had broken out between the two groups. (10) Thus, religion has always been central to the identity of the Pakistani people and the formation of a cohesive nation: "Continuing controversy over the role of Islam in Pakistan's political life and tension among the country's ethnic groups have dominated the process of state-building in Pakistan since independence." (11)

Pakistan's "founding father," Mohammed Ali Jinnah, advocated for a separate nation-state because he feared persecution of the Muslim minority in India; however, he did not intend to form a theocracy within the state of Pakistan. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.