sharia law
sharia law
sharia law
Semi-Annual, Vol. 14, No.2, Fall 2019-Winter 2020 1398 پاییز و زمستان،2 شمارۀ،سال چهاردهم
Issue 28, pp. 247-269 269ـ247 صص،28 شمارۀ پیاپی
Original Article مقالۀ پژوهشی
Abstract
There has been a great deal written about the relationship between sharia law and
international human rights law, particularly with regards to the treatment of women.
The tensions between sharia law and international law norms of equality and non-
discrimination have been well documented, and the possibilities for interpreting sharia
law in a manner that accords with international human rights law have been insightfully
explored by scholars of human rights and Islamic law. It has been shown that Islam is
a religion of peace, tolerance, justice and equality. It has been said that the Qur’anic
passages describing the role of women should be understood in the context in which
they were written, which was a time in history in which women were seen as vastly
inferior to men in almost every society throughout the world, particularly in the Arabian
peninsula. Read in this context, it is argued, Islam must be seen as an advocate for
gender equality, and should thus be interpreted as standing for gender equality today.
This paper argues that, while this may indeed be the preferred interpretation of Islam,
this is of little assistance to women in countries such as Sudan whose national
legislation enshrines and enforces the most discriminatory aspects of sharia law.
1. Introduction
The tensions between sharia law and international law norms of equality and
non-discrimination have been well documented, and the possibilities for
interpreting sharia law in a manner that accords with international human rights
law have been extensively debated.1 It has been shown that Islam is a religion of
peace, tolerance, justice and equality. It has been said that the Qur’anic passages
describing the role of women should be understood in the context in which
they were written, and that as such, Islam must be seen as an advocate for
gender equality. This paper argues that while this may indeed be the preferred
interpretation of Islam, this is of little assistance to women in countries whose
national legislation enshrines and enforces the most discriminatory aspects of
sharia law. Using Sudan as a case study, this paper explores the way in which sharia
law is reflected and applied in national legislation, explores the link between the
application of sharia law and the existence of inequality between women and men,
and discusses the implications of gender inequality – and the violence that is
often associated with inequality – both for development and for peace.
This paper commences with a brief outline of the principles enshrined
in international human rights law regarding the right to equality and
non-discrimination – because these principles set the standard against which the
treatment of women under classical sharia2 must be compared. Part 2 highlights
some specific aspects of sharia law which, on a classical reading of the sources,
violate international human rights law and contribute to an environment in
which women are subordinated and violence is condoned, while part 3 considers
the way in which these discriminatory aspects are reflected in national legislation
in Sudan. Part 4 discusses the varying degrees to which sharia law has been
incorporated into national legal systems across the Islamic world, and considers
the way in which this is manifested in disparities between the basic capabilities
of women and men, with significant implications for development. Part 5
explores the extent to which cultural norms of violence and subordination –such
as can be found in traditional interpretations of sharia law– affect the likelihood
of a state either engaging in conflict or achieving sustainable peace.
1 . For examples of Islamic scholarship that seek to reinterpret sharia law in a manner compatible with
international human rights law, see: eg, Mayer, 3rd ed, 1999; Baderin, 2003.
2. The term ‘classical sharia law’ means a strict reading of the primary sources of sharia law - the Qur’an and
the sunna (the words, or the teachings) of the Prophet. Throughout this paper I have adopted the definition of
sharia used by Abdullahi Ahmed An-Na’im. An-Na’im defines sharia as including ‘ethical and social norms,
political and constitutional theory, and so forth, as well as codes of private, public, penal and commercial
law,’ and as referring specifically to ‘historical formulations of this comprehensive system’ rather than ‘possible
re-formulations of a modern Islamic legal system’, See: An-Na’im, in Lindholm and Vogt (ed), 1992: 135.
Sharia Law, Traditional Justice and Violence …/ Barber 249
1. See: Convention on the Elimination of Discrimination Against Women, opened for signature 18 December
1979, 1249 UNTS 13 (entered into force on 3 September 1981).
2. See: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS
171, art 3 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural
Rights, opened for signature 16 December 1966, 999 UNTS 3, art 3 (entered into force 3 January 1976).
3. See: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS
171, art 26 (entered into force 23 March 1976).
4. See: ICCPR art 14.
5. See: ICCPR art 12.
6. See: ICCPR art 23(4).
250 Human Rights/ Vol. 14/ No.2/ Issue 28/ pp. 221-245
1. See: International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December
1966, 999 UNTS 3, art 6 (entered into force 3 January 1976).
2. See: Lillich, 1984: 115, 133 and McDougal, Lasswell and Chen, 1980: 564. An extensive list of authorities in
support of the international law ‘norm of non-discrimination’ is provided by McDougal, Lasswell and Chen,
1980: 567.
3. See:Universal Declaration of Human Rights, GA Res 217A (III), art 1, UN Doc A/810/71 (1948).
4. See: UDHR, art 2.
5. See: UDHR, art 7.
6. See, eg, Sohn, 1982: 32. Pohl, Report on the Situation of Human Rights in Iran, UN ESCOR, CHR, 43rd Sess,
Provisional Agenda Item 12, [4 - 5], UN Doc E/CN.4/1987/23 (1987); McKean, 1983: 274; McDougal,
Lasswell and Chen, 1980: 272.
7. See: Lillich, 1984, McDougal, Lasswell and Chen, 1980: 564.
8. See: Declaration on the Elimination of Violence against Women, GA Res 48/104, 48th Sess, Agenda Item
111, UN GAOR, UN Doc A/Res/48/104 (1993).
Sharia Law, Traditional Justice and Violence …/ Barber 251
Whenever you give or take credit for a stated term, set it down in
writing … And call upon two of your men to act as witnesses; and if
two men are not available, then a man and two women from among such
as are acceptable to you as witnesses, so that if one of them should
make a mistake, the other could remind her. (Asad, 1984: 63)
Much has been written about the value of a woman’s testimony in sharia law,
1. See: Bunch, ‘The Intolerable Status Quo: Violence against Women and Girls,’ The Progress of nations 1997
<http://www.unicef.org/pon97/40-49.pdf> at 25 June 2007.
252 Human Rights/ Vol. 14/ No.2/ Issue 28/ pp. 221-245
and the reason for the differentiation between men and women in this regard.
A number of explanations have been offered, including the fact that women
were, in the time of the Prophet, ‘less familiar with business procedures than
men, and, therefore, more liable to commit mistakes in this respect’. (Asad,
1984: 63) While the testimony of a woman is acceptable in non-criminal
matters, provided that it is confirmed by the testimony of another woman and
a man,1 classical Islamic jurisprudence provides that ‘in the time of the Prophet
and his two immediate successors it was an invariable rule to exclude the
evidence of women in all cases inducing punishment or retaliation’ (al-
Marghinani, 1982: 353) – that is, in criminal cases. The lack of value accorded
to a woman’s testimony is not only significant insofar as it makes a statement
about the relative value of men and women, but –as will be shown below– it
creates a situation in which certain crimes, such as rape, are rendered almost
impossible to prove. This has been an important factor in creating a climate of
virtual impunity for these crimes.
1. See: al-Marghinani, 1982: 353; An-Na’im in Lindholm and Vogt (ed), 1992: 145. Although it is generally
agreed that the testimony of women may be accepted in all non-criminal matters, there is support in the hadith
literature for the proposition that a woman’s testimony should never be accepted in matters of marriage and
divorce. See, for eg, Anas, 1989: 297.
Sharia Law, Traditional Justice and Violence …/ Barber 253
seek not against them Means (of annoyance) …1 (Ali, 1938: 190)
While a number of Islamic law scholars argue that the emergence of sharia
law in the early seventh century improved the position of women,2 that the
Qur’an accords equality to men and women (in dignity if not in rights),3 and
that the reference to ‘lightly’ beating wives was intended only to restrict what
was an already common practice,4 dominant interpretations of sharia accept
the following as basic tenets of the marital relationship: male authority or
responsibility over women (qawwama),5 a woman’s duty of obedience (ta’a)
to her husband, and a man’s right (albeit a restricted one) to physically
discipline his wife.6 It will be suggested below that, in the case of Sudan and
elsewhere, these basic principles permeate marital relations and family life,
justify and condone domestic violence, and – because domestic violence is
rarely seen to be a crime – ultimately bar women from accessing the formal
criminal justice system and thus contribute to impunity for these crimes.
1. With regards to the type of beating that is permitted by the Qur’an, Sahih al-Bukhari states ‘beat them (lightly
your wives, if it is useful) ie, without causing them severe pain’: Bukhari, 1976: 100.
2. See: Nawaz, 1965: 328; Al-Hibri, 2001: 37, 47.
3. See: al-Hibri, 2001: 46; Badawi, 1995: 4.
4. See: al-Hibri, 2001: 60; Hajjar, 2004: 11 (‘the notion that beating constitutes a right available to men certainly
contradicts the Qur’anic ideal of marital relations as companionable and mutually supportive.’) The approach
taken by al-Hibri and Hajjar is supported by a hadith found in the collection of Maulana Muhammad Ali,
which states that ‘the best of you are the kindest of you to their wives’: Tirmidhi 10:11, in Ali, 1945: 377.
5. See: Roald, 2001: 149. The interpretation of the word qawwamun as meaning man’s authority over women is
contested by some scholars of Islam. See, eg, al-Hibri: 2001, who notes that the word is translated as
protectors and maintainers, and that ‘[a]ncient Arabic dictionaries ... include among the meanings of
“qawwamun” those of guiding and advising’ and that ‘[t]hese meanings are more consistent with the general
Qur’anic view of gender relations than the one preferred by male jurists’: at 51.
6. See: Roald, 2001: 149.
7. See: generally, Pearl and Menski, 1998: 178.
254 Human Rights/ Vol. 14/ No.2/ Issue 28/ pp. 221-245
1. See: Roald, 2001: 147. As is the case with much of the hadith literature, hadiths can also be found to support
the contrary view (that women are permitted to leave the home). One hadith contained in the collection of
Bukhari, 1976, for eg, states that ‘[o]nce Sauda bint Zam’a went out at night for some need, and Umar saw
her, and recognizing her, he said (to her) “By Allah, O Sauda! You cannot hide yourself from us”. So she
returned to the Prophet and mentioned that to him … [and he said]: “O women! You have been allowed by
Allah to go out for your needs”’: at 120.
Sharia Law, Traditional Justice and Violence …/ Barber 255
the way in which sharia is interpreted and applied at the state level. The most
important variable in explaining these differences is the state itself. It is the
state that formalizes and regulates gender relations through the law, and it is
the state alone that is formally “vested with the responsibility to prohibit and
punish violence”. (Hajjar, 2004: 5) It is therefore important to consider the role
played by the state in the interpretation and application of sharia law, and the
way in which the principles of sharia law are reflected in the national
legislative regime.
The formal legal system in Sudan is comprised of the Constitution (which
came into force after the signing of the Comprehensive Peace Agreement in
2005) and national legislation which “has as its sources Sharia law and the
consensus of the people”. (Interim National Constitution of the Republic of
Sudan 2005) The current government came to power following a coup in 1989,
committed to Islamization, fundamentalism and to the consolidation of a
legislative regime based on sharia law.1 The principles of sharia are today reflected
in a range of legislative instruments including the Criminal Act 1991, the Evidence
Act 1993 and the Muslim Personal Matters Act 1991. This section discusses each
of these Acts, with a focus on their sources in sharia law, their compatibility with
international human rights law and their discriminatory impact upon women.
The Criminal Act 1991 aims to observe ‘sharia as the main source of legislation,
so that its spirit shall infiltrate into the Act and its principles intermingle with
the provisions thereof, and its guidance manifest itself in the added or omitted
provisions’. When read together with the Evidence Act 1993, the Criminal Act
1991 has an enormously disproportionate impact upon women, and arguably
plays a greater role than any other single legal instrument in creating an
environment of impunity for violence against women (particularly rape and
sexual violence) in Sudan.
In line with the principles of sharia, the Criminal Act 1991 accords special
status to six types of crime referred to as hudud offences: capital theft, armed
robbery, false accusation of unchastity, apostasy, drinking alcohol, and
adultery.2 Hudud offences are distinguished in a number of important ways
from other offences. Among other distinctions, the restriction on the death
penalty to offenders over the age of 18 years does not apply to hudud offences,3
1. For a more detailed background and discussion of the ‘Islamization’ of the Sudanese legal system see:
An-Na’im, in Lindholm and Vogt (ed), 1992: 138 - 140.
2. See: Criminal Act 1991 s 3.
3. See: Criminal Act 1991 s 27(2).
256 Human Rights/ Vol. 14/ No.2/ Issue 28/ pp. 221-245
meaning that any ‘adult’ (aged 15 and above) 1 can be subject to the death penalty
for the commission of a hudud offence.
The discriminatory way in which women are positioned within the Criminal
Act 1991, and particularly in relation to the hudud offences, can only be fully
understood when the legislation is read in conjunction with the Evidence Act
1993 – also with its sources in sharia law. Section 63 of the Evidence Act
provides that, with the exception of adultery, all hudud offences shall be
proved either by a confession before a court, or by the testimony of two men,
or ‘when necessary’ by the testimony of a man and two women or the
testimony of four women.2 This provision, with its foundation in sharia law, is
one of the aspects of Sudanese national legislation that most blatantly violates
the principle of equality before the law enshrined in the UDHR and the
ICCPR.3 It also violates the guarantee in section 31 of the Constitution of
Sudan that all persons are equal before the law.4
In the case of adultery, the Evidence Act 1993 requires that the offence shall
be proved either by express confession before a court, or by the testimony of
four adult men, or by the pregnancy of an unmarried woman.5 This is in
accordance with the Islamic law doctrine, discussed above, that ‘the testimony
of women is not accepted in accusations involving hadd punishments’.6
(Malik, 1989: 297 (and accompanying discussion)) This requirement means
that while it is almost impossible to prove a man guilty of adultery, an
unmarried woman who falls pregnant may in the absence of any witnesses be
found guilty and convicted of the crime. An unmarried woman who finds
herself in these circumstances has, as her only defence, the crime of rape. Yet
while her pregnancy alone is sufficient to establish her guilt of adultery, she
must produce four adult male witnesses to establish her lack of consent.1 The
result is that for women who fall pregnant outside marriage, a finding of
adultery is almost inevitable, while at the same time, there is virtual impunity
for male perpetrators of rape. The discriminatory provisions in the Criminal
Act 1991 and the Evidence Act 1993 are of critical importance in creating and
sustaining an environment in which women are accorded a status subordinate
to that of men, and must live with the knowledge that there is little likelihood
of redress for sexual violence committed against them.
The other significant piece of legislation in Sudan which violates the
international legal doctrine of equality between men and women, and that
contributes to a social, cultural and legal environment in which domestic
violence is condoned, is the Muslim Personal Matters Act 1991 (‘Personal
Matters Act’). In accordance with sharia law, the Personal Matters Act
provides that a wife should take care of and obey her husband, 2 and that in
return she is entitled to maintenance, to be ‘treated tenderly’ and to ‘visit her
parents and those relatives whom she is prohibited to marry’. (Personal
Matters Act for Muslims 1991 s 51) Notably absent from this enumeration of
rights are the right to work and the right to freedom of movement, including to
leave the family home for reasons other than visiting her immediate family.
Art 51 states that a wife does not deserve maintenance if, inter alia, she works
outside the home without her husband’s approval unless ‘the husband’s
disapproval is coercive’. (Personal Matters Act for Muslims 1991 s 51) The
differentiation between a man and a woman’s rights and duties in marriage
manifestly violates the principle of equality enshrined in the ICCPR, the
ICESCR and the Constitution of Sudan,3 as well as the requirement in art 23(4)
of the ICCPR that states must ‘take appropriate steps to ensure equality of
rights and responsibilities of spouses as to marriage, during marriage and at its
dissolution’.4 The restriction on a woman’s ability to work without her husband’s
1. See: The Evidence Act 1993 does not specify the number of witnesses required to prove the crime of rape.
However, the crime of rape is defined (Criminal Act 1991 s 149(1)) in the following terms: ‘there shall be
deemed to commit the offence of rape, whoever makes sexual intercourse, by way of adultery, or sodomy,
with any person without his consent’ (emphasis added). Thus, in order to prove the crime of rape, technically
one must first prove adultery - requiring four male witnesses - and then prove lack of consent.
2. See: Personal Matters Act for Muslims 1991 s 52.
3. See: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS
171, art 3 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural
Rights, opened for signature 16 December 1966, 999 UNTS 3, art 3 (entered into force 3 January 1976);
Interim National Constitution of the Republic of Sudan 2005, s 32.
4. See: International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS
171, art 23(4) (entered into force 23 March 1976).
258 Human Rights/ Vol. 14/ No.2/ Issue 28/ pp. 221-245
approval also violates art six of the ICESCR, which obligates Sudan to ensure
the progressive realization of the right of everyone to ‘gain his [sic] living by
work which he or she freely chooses or accepts’.1 The Personal Matters Act
plays an important role in formalizing and legitimating the hierarchical relationship
between husband and wife, and this contributes in turn to an understanding that
disciplinary measures, including the possibility of violence, may be imposed
when the relationship is challenged. More broadly, the restrictions on economic,
social and cultural rights significantly impede women’s ability to access
economic and social resources, and thus to fully participate in public and
private life.2 The implications of these restrictions for development and for
peace are discussed in the following sections.
1. See: International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December
1966, 999 UNTS 3, art 6 (entered into force 3 January 1976).
2. See: Sullivan, 1991: 795, 839.
3. See: Constitution of Iran 1979, article 4.
4. See: Constitution of the Kingdom of Bahrain 2002 s 2; Constitution of the Arab Republic of Egypt 1980 s 2;
Constitution of Kuwait 1962 s 2; The White Book: The Basic Law of the Sultanate of Oman 1996 s 2;
Constitution of the Islamic Republic of Pakistan 1973 s 2; Permanent Constitution of the State of Qatar 2003
s 2; Constitution of the Syrian Arab Republic 1973 s 2; Constitution of the Republic of Yemen 1994 s 3.
5. See: Constitution of Sudan 1998 s 65; Constitution of the Republic of Maldives 2008 s 10; Constitution of the
Islamic Republic of Afghanistan 2004 s 2.
Sharia Law, Traditional Justice and Violence …/ Barber 259
Libya, Gambia and Jordan, have hybrid legal systems – their constitutions
stipulating that sharia courts will have jurisdiction over specified matters such
as divorce, marriage, child custody and inheritance.1
One of the commonalities across almost all states that have reflected sharia
even partially in their legal systems is the extent to which the principles of
sharia law regulate marriage and family life. The importance of sharia law in
this area, and the recognition of its potential incompatibility with international
law norms of equality and non-discrimination, is reflected in the reservations
entered by states to art 16 of CEDAW concerning the equality of men and
women in all matters relating to marriage and family life.2 Almost all of the
Islamic states that have ratified CEDAW have entered reservations to art 16,
most explaining in the text of their reservations that art 16 will not be observed
insofar as is it incompatible with the Islamic Sharia.3
Where sharia law is reflected in national legal systems, the restrictions on
women’s ability to exercise economic, social and cultural rights, and associated
norms of inequality and violence, are manifested in two important ways that
have implications for development and –as will be discussed in the following
section– for peace.
At the most basic level, a constant threat of violence, coupled with an
understanding of the impunity that exists for the perpetrators of violence, is
profoundly disempowering for the victims of violence and for those at risk of
violence. Many women whose lives have been regulated by traditional
interpretations of sharia law have been taught from childhood and throughout
marriage that from time to time others –even those they love– will subject them
to violence. They have been taught that challenging the established order
within the family may properly result in violence that in the event of an
unwanted pregnancy they may be accused of adultery, and that if they seek
legal redress for sexual violence there can almost never be sufficient evidence
to support their story. Thus disempowered and living in a climate of fear, many
women are prevented from attaining a basically acceptable quality of life and
are unable to either contribute to or benefit from development. It has thus been
1. See: Constitution of Libya 1969 s 8; Constitution of The Second Republic of the Gambia 1996 s 7; Constitution
of Hashemite Kingdom of Jordan 1952 s 105.
2. See: Convention on the Elimination of Discrimination Against Women, opened for signature 18 December
1979, 1249 UNTS 13 (entered into force on 3 September 1981) art 16.
3. See: UN Division for the Advancement of Women, Department of Economic and Social Affairs, ‘Declarations,
Reservations and Objections to CEDAW’ <http://un.org/womenwatch/daw/cedaw/reservations-country.
htm> at 7 January 2008.
260 Human Rights/ Vol. 14/ No.2/ Issue 28/ pp. 221-245
1. See: United Nations Economic and Social Commission for Asia Pacific, ‘Report of The Sub-Regional
Training Workshop On Elimination Of Violence Against Women In Partnership With Men’ (2-5 December
2003) 2-3.
2. See: Moghadam, 2005: 98-100.
3. See: United Nations Development Program, 'Human Development Report 2007/2008: Fighting Climate
Change: Human Solidarity in a Divided World' (2008) 358.
Sharia Law, Traditional Justice and Violence …/ Barber 261
account of gender equality. The greater the disparity between men and women
in basic capabilities, the greater the discrepancy between a country’s GDI as
compared to its HDI.
Of all 157 states for which statistics are provided in 2007/2008 report, the
states with the greatest discrepancy between HDI and GDI rankings are Oman
and Saudi Arabia, each with a discrepancy of -13, meaning that these states fall
13 ranks lower on the development index once their rankings are adjusted to
take gender inequality into account. The average discrepancy for states that
explicitly recognise sharia as the primary source of legislation is -3.9.1 If the
selection is expanded to include states whose constitutions recognise the
jurisdiction of sharia courts over specified matters (Afghanistan, Brunei,
Libya, Gambia, Jordan and Malaysia), the average discrepancy between HDI
and the GDI rank falls to -3.6.2
To sum up, then: social, legal and cultural norms which restrict women’s
ability to exercise basic human rights, support violence as an appropriate
response when the norms are violated, and restrict women’s ability to seek
legal redress in response to violence, are fundamentally disempowering and as
such limit women’s ability to contribute to or benefit from development.
Personal status laws, in particular, formalize and sustain patriarchal gender
relations, and the application of these laws is manifested in significant
inequalities in the basic capabilities of women and men. The disempowerment
of women, coupled with significant gender disparities in basic capabilities,
have significant implications not only for development but for the achievement
of sustainable peace.
1. See: United Nations Development Program, 'Human Development Report 2007/2008: Fighting Climate
Change: Human Solidarity in a Divided World' (2008)
2. See: United Nations Development Program, 'Human Development Report 2007/2008: Fighting Climate
Change: Human Solidarity in a Divided World' (2008)
3. See, for eg, Warriner and Tessler, 1997: 250; Caprioli, 2003; Caprioli, 2005: 49; Caprioli, 2001: 503; Caprioli,
2000: 51; Caprioli and Trumbore, 2003: 5; Bussmann, 2007; Bouta, Frerks and Bannon, 2005.
262 Human Rights/ Vol. 14/ No.2/ Issue 28/ pp. 221-245
gender-based violence, then there is no real chance for peace and security’.1
Four years later the Security Council passed Resolution 1820 on Women,
Peace and Security, stressing ‘the importance of [women’s] equal participation
and full involvement in all efforts for the maintenance and promotion of peace
and security’, and acknowledging that the ‘persistent obstacles and challenges to
women’s participation and full involvement in the prevention and resolution of
conflicts’ has a ‘negative impact … on durable peace, security and reconciliation’.2
In explaining the relationship between gender equality, freedom from violence
and peace, two alternative approaches have been put forward. The first demonstrates
that violence and inequality contribute indirectly to the likelihood of conflict
by constraining a state’s ability to pursue economic development and good
governance. The second approach argues that violence and inequality between
men and women reflect cultural norms of hierarchy, domination and the use of
force, and that the existence of these norms increases the likelihood of a state’s
engagement in both internal and external conflict. These two approaches will
be discussed in turn.
1. Thoyara Ahmed Obaid, 'Women, Peace and Security, Responding to the Needs to Victims of Gender Based
Violence' (Statement, UN SC Open Debate on SC Res 1325 on Women, Peace and Security, 2004)
<http://www.unfpa.org/news/news.cfm?ID=523> at 7 January 2009.
2. Resolution on Women, Peace and Security, SC Res 1820, UN SCOR, 5916th mtg, UN Doc S/Res/1820 (2008).
3. See: World Bank, Engendering Development - Through Gender Equality in Rights, Resources and Voice, 2001: 5.
4. See: World Bank, Engendering Development - Through Gender Equality in Rights, Resources and Voice, 2001: 8.
5. See: World Bank, Engendering Development - Through Gender Equality in Rights, Resources and Voice, 2001: 11.
6. See: World Bank, Engendering Development - Through Gender Equality in Rights, Resources and Voice, 2001: 8.
Sharia Law, Traditional Justice and Violence …/ Barber 263
that while ‘identifying and measuring the full extent of [the costs of gender
inequalities] is difficult, … a wealth of evidence from countries around the
world demonstrates that societies with large, persistent gender inequalities pay
the price of more poverty, malnutrition, illness and other deprivations’.1 The
report concluded that gender equality is a ‘development objective in its own
right’ in that it ‘strengthens countries ability to grow, to reduce poverty, and to
govern effectively’.2
The causal effect between economic development and peace has been well
established in civil war literature.3 Hegre and Sambanis, in their 2006 analysis
of factors that potentially increase the likelihood of civil war, note that the ‘key
variables in economic theories – per capita income and, to a lesser extent, the
rate of growth of income – are very robust’. (Hegre and Sambanis, 2006: 533)
Their research shows GDP per capita to be ‘robustly significant’, with a 1%
increase in income reducing the risk of civil war onset by 0.5%. 4 The finding
is consistent with a significant body of literature supporting the relationship
between economic development and civil war.5 If it is well established that
reducing disparities between women and men promotes development, and that
development is one of the most significant factors determining the likelihood
of peace, it may equally be said that gender equality is a significant contributor
–albeit indirectly– to peace. As stated by the UN Economic, Social and
Cultural Organisation at the Fourth World Conference on Women, ‘there can
be no lasting peace without development, and no sustainable development
without full equality between men and women’.6
1. See: World Bank, Engendering Development - Through Gender Equality in Rights, Resources and Voice, 2001: 8.
2. See: World Bank, Engendering Development - Through Gender Equality in Rights, Resources and Voice, 2001: 1.
3. See: Bussmann, 2007: 72-522.
4. See: Hegre and Sambanis, 2006: 524.
5. See: Hegre and Sambanis, 2006: 532.
6. See:UN Economic, Social and Cultural Organisation, 'Statement on Women's Contribution to a Culture of
Peace' (Statement presented to the Fourth World Conference on Women, Beijing 1995) <http://www.unesco.org/
cpp/uk/declarations/wcpbei.htm> at 11 January 2008.
7. See: Caprioli, ‘Gender Equality and Civil Wars’, 2003: 72-5.
264 Human Rights/ Vol. 14/ No.2/ Issue 28/ pp. 221-245
7. Conclusion
Inequality and violence against women is prevalent not just in Islamic
1. See: Caprioli, ‘Gender Equality and Civil Wars’, 2003: 72. 4-6.
2. See: Caprioli, ‘Gender Equality and Civil Wars’, 2003: 72. 4-6.
3. See: Caprioli, ‘Gender Equality and Civil Wars’, 2003: 72, 17.
Sharia Law, Traditional Justice and Violence …/ Barber 265
societies, but throughout the world; in no region in the developing world are
women equal to men in legal, social and economic rights.1 There are myriad
reasons for the prevalence of inequality and violence, and this paper does not
purport to suggest that the existence of sharia law is the only, or even the
primary, cause. It is clear, however, that the messages conveyed by sharia
regarding gender relations, and the actions of governments in incorporating
sharia into state legislation, are powerful forces in the entrenchment of
inequality and violence throughout the Islamic world. Inequality and violence,
as has been shown above, prevent women from contributing to and benefiting
from development, inhibit a country’s ability to ensure economic progress, and
increase the likelihood of inter and intrastate conflict.
Islamic states, as well as all other states whose legal systems do not ensure
equality of men and women before the law and equal protection by the law,
must be encouraged to bring their domestic legislation into line with international
human rights instruments to which the state is party, and with the principles of
equality and non-discrimination enshrined in customary international law.
Personal status legislation (and in the case of Sudan, the Criminal Act 1991,
the Evidence Act 1993 and the Personal Matters Act 1991) must be addressed
as priorities. States that have not yet ratified CEDAW and/or its Optional
Protocol should be encouraged to do so, and should be encouraged to do so
without entering reservations that contradict the very purpose and spirit of the
Convention. States that have entered such reservations, in particular to art 16
concerning equality in marriage and family life, should be encouraged to
withdraw these reservations in light of their obligations under customary
international law. States that have not already done so should be encouraged to
adopt domestic violence legislation.2 Until state legislation and practice is brought
into line with standards in international human rights law, particularly as regards
the equal rights of women in marriage and in family life, violence will continue
to be a part of women’s lives, women will be restricted from exercising the
basic human rights to which they are entitled, and countries will be constrained
in their progress towards development and ultimately towards peace.
Bibliography
A) Books & Article
- Al-Hibri, Azizah (2001). “Muslim Women’s Rights in the Global Village:
Opportunities and Challenges”, Journal of Law and Religion, Vol. 15, p. 37, 47.
- Ali Muhammad, Maulana (1945). A Manual of Hadith, Alexandria,: Library
of Alexandria.
- Al-Marghinani, Ali ibn Bakr (1982). The Hedaya or Guide: A Commentary
on the Mussulman Law, Charles Hamilton trans, first published,
Cambridge: Cambridge University Press.
- Anas, Malik ibn (1989). Al-Muwatta of Imam Malik ibn Anas: The First
Formulations of Islamic Law, Aisha Abdurrahman Bewley trans, first
published, London: Bookwork.
- Asad, Muhammed (1984). The Message of the Quran, London: The Book
Foundation.
- Baderin, Mashood A (2003). International Human Rights and Islamic Law,
London: Oxford Press.
- Bukhari, Muhammad ibn Ismail (1976). Ṣaḥīḥ al-Bukhārī: The Translation
of the Meanings of Sahih al-Bukhar, Muhammad Muhsin Khan trans, 2nd
revised ed, Texas: Dar-us-Salam Publications.
- Caprioli, Mary (2003). Gender Equality and Civil Wars, Social Development
Department, Environmentally and Socially Sustainable Development Network.
- Caprioli, Mary (2005). “Primed for Violence: The Role of Gender Inequality
in Predicting Internal Violence”, International Studies Quarterly, Vol. 49,
No. 2, p.161.
- Caprioli, Mary (2001). “Gender, Violence and International Crisis”, Journal
of Conflict Resolution, Vol. 45, No. 4, p.503.
- Caprioli, Mary (2000). “Gendered Conflict”, Journal of Peace Research, Vol.
37, No. 1, p.51.
- Caprioli, Mary and Trumbore, Peter (2003). “Ethnic Discrimination and
Interstate Violence: Testing the International Impact of Domestic
Behavior”, Journal of Peace Research, Vol. 40, No. 1, p.5.
- Bussmann, Margit (2007). “Gender Equality, Good Governance and Peace”,
(Paper presented at Making Sense of a Pluralist World, Sixth Pan-European
International Relations Conference, Turin, 12-15 September 2007)
- Bouta, Tsjeard, Frerks, Georg and Bannon, Ian (2005). Gender, Conflict and
Development, Washington: The Word Bank.
Sharia Law, Traditional Justice and Violence …/ Barber 267
- Hajjar, Lisa (2004). “Religion, State Power and Domestic Violence in Muslim
Societies: A Framework for Comparative Analysis”, Law and Social
Inquiry, Vol. 29, No.1, p.7.
- Hegre, Havard and Sambanis, Nicholas (2006). “Sensitivity Analysis of the
Empirical Literature on Civil War Onset”, Journal of Conflict Resolution,
Vol. 50, No. 4, p.508, 533.
- Lillich, Richard B (1984). “Civil Rights” in Meron (ed), Theodore, Human Rights
in International Law: Legal and Policy Issues, London: Oxford press.
- Lindholm, Tore and Vogt, Kari (ed), (1992). Islamic Law Reform and Human
Rights, London: Nordic Human Rights Publications.
- Mayer, Ann Elizabeth (1999). Islam and Human Rights, NY: Routledge.
- McDougal, Myres S, Lasswell, Harold D and Chen, Lung-Chu (1980).
Human Rights and World Public Order, Oxford: Oxford University Press.
- McKean, Warwick (1993). Equality and Discrimination under International
Law (1983) 274;
- Nawaz, M K (1965). “The Concept of Human Rights in Islamic Law”,
Howard Law Journal, Vol. 11, p.328.
- Moghadam, Valentine (2005). “Is Gender Inequality in Muslim Societies a Barrier
to Modernization and Democratization? ”, in Shireen Hunter and Huma
Malik (eds), Modernization, Democracy, and Islam, Weastport: Peager.
- Pearl, David and Menski, Werner (1998). Muslim Family Law, 3rd ed,
London: Sweet & Maxwell.
- Pohl, Reynaldo Galino (1987). Report on the Situation of Human Rights in
Iran, UN ESCOR, CHR, 43rd Sess, Provisional Agenda Item 12, [4 – 5],
UN Doc E/CN.4/1987/23 (1987).
- Roald, Anne Sophie (2001). Women in Islam: The Western Experience, NY: Routledge.
- Sohn, Louis B (1982). “The New International Law: Protection of the Rights
of Individuals rather than States”, American University Law Review, Vol.
32, No. 1, p. 17.
- Sullivan, Donna (1991). “Gender Equality and Religious Freedom: Towards
a Framework for Conflict Resolution”, New York University Journal of
International Law and Politics, Vol. 24, p. 795, 839.
- Yusuf Ali, Abdullah (1938). The Holy Quran: Text, Translation and Commentary,
London: The Islamic Foundation.
- United Nations Economic and Social Commission for Asia Pacific, “Report
of The Sub-Regional Training Workshop On Elimination Of Violence
Against Women In Partnership With Men” (2-5 December 2003) 2-3.
268 Human Rights/ Vol. 14/ No.2/ Issue 28/ pp. 221-245
B) Documents
- Beijing Platform for Action, Fourth World Conference on Women, [125], UN
Doc A/CONF.177/20 (1995) and A/CONF.177/20/Add.1 (1995).
- Biro, Situation of Human Rights in the Sudan, UN Doc E/CN.4/1994/48
(1994), above n 57, [102].
- Constitution of Hashemite Kingdom of Jordan 1952 s 105.
- Constitution of Kuwait 1962 s 2.
- Constitution of Libya 1969 s 8.
- Constitution of Saudi Arabia 1992 s 1.
- Constitution of Sudan 1998 s 65.
- Constitution of the Arab Republic of Egypt 1980 s 2.
- Constitution of the Islamic Republic of Afghanistan 2004 s 2.
- Constitution of the Islamic Republic of Pakistan 1973 s 2.
- Constitution of the Kingdom of Bahrain 2002 s 2.
- Constitution of the Republic of Maldives 2008 s 10.
- Constitution of the Republic of Yemen 1994 s 3.
- Constitution of The Second Republic of the Gambia 1996 s 7.
- Constitution of the Syrian Arab Republic 1973 s 2.
- Declaration on the Elimination of Violence against Women, GA Res 48/104,
48th Sess, Agenda
- Interim National Constitution of the Republic of Sudan 2005 s 31.
- Interim National Constitution of the Republic of Sudan 2005.
- International Covenant on Civil and Political Rights, 1966.
- International Covenant on Economic, Social and Cultural Rights, 1954.
- Item 111, UN GAOR, UN Doc A/Res/48/104 (1993).
- Permanent Constitution of the State of Qatar 2003 s 2.
- Personal Matters Act for Muslims 1991 s 52.
- Resolution on Women, Peace and Security, SC Res 1820, UN SCOR, 5916 th
mtg, UN Doc S/Res/1820 (2008).
- The White Book: The Basic Law of the Sultanate of Oman 1996 s 2.
- Universal Declaration of Human Rights, GA Res 217A (III), art 1, UN Doc
A/810/71 (1948).
Sharia Law, Traditional Justice and Violence …/ Barber 269
C) Websites
- Bunch, Charlotte ‘The Intolerable Status Quo: Violence against Women and
Girls,’ The Progress of nations 1997 <http://www.unicef.org/pon97/40-
49.pdf> at 25 June 2007.
- Obaid, Thoyara Ahmed (2004). 'Women, Peace and Security, Responding to
the Needs to Victims of Gender Based Violence' (Statement, UN SC Open
Debate on SC Res 1325 on Women, Peace and Security, 2004)
<http://www.unfpa.org/news/news.cfm?ID=523> at 7 January 2009.
- UN Division for the Advancement of Women, Department of Economic and
Social Affairs, ‘Declarations, Reservations and Objections to CEDAW’
<http://un.org/womenwatch/daw/cedaw/ reservations-country.htm> at 7
January 2008.
- UN Economic, Social and Cultural Organisation, 'Statement on Women's
Contribution to a Culture of Peace' (Statement presented to the Fourth
World Conference on Women, Beijing 1995) <http://www.unesco.org/
cpp/uk/declarations/wcpbei.htm> at 11 January 2008.