Justice for Half a Man

Urstruly
Jul 17, 2003

Table of Contents



Synopsis



Part I: The Basics of Islamic

1.1 Categories of Crimes in Islamic Penal

1.2 Islamic of Evidence

1.3 Standard of Witness - Nisa’b-e-Shahadat

1.4 Benefit of




Part II:The Role of in Islamic of Bearing Witness

2.1 Situations Where ’s Testimony Is Not Accepted

2.2 Situations Where Men’s Testimony Is Not Accepted

2.3 Situations Where Testimony of Two Along With a Man May Be Admissible




Part III: ’s Emphasis On Differences - The Philosophical Basis

3.1 Benefit of - An Argument of Biology

3.2 vs. Equity - An Argument of Sociology



References & Footnotes



SYNOPSIS



The legal code of a society determines the worth and position of an individual
in the society by specifying the and duties, dos and don’ts, and gives
and gets. Societies enact laws to regulate themselves and to conform and direct
the behavior of individuals. But laws have a life of their own; they also
influence and shape societies in the ways, which sometimes are unpredictable. It
is a two way street.



The traditions, ethics, morals and ideals of a society are unwritten laws and
when these characteristics are written down, propagated and taught they become
standards; and when these standards are imposed by the state they become laws.
The source or origin of these traditions and ethical is sometimes unknown
and sometimes it is based on religious edicts or edicts issued by an entity of
authority which then become the traditions. If a monarch or a enacts
legal code it may be representative only of the wishes, vision, and outlook of
that individual or partly that of the society. In democratic societies is an
expression of the traditions, ethics, morals ideals and collective outlook of
the society or at least that of majority in it.



By the middle of 20th century when Muslim world freed itself from the chains of
colonial oppression of the West, it realized that the talons of vassalage still
penetrate deep into its jugulars. Those talons were a legal system based on
English Common or Napoleonic Code and a system of , which were
imposed on them by their colonial masters. When those laws and system
were enacted the goal, as explained above, was to conform and tame those
societies to produce most obedient subordinates. This understanding resulted in
a struggle in Muslim societies at political, jurisprudence, legal, judicial,
educational and popular levels to re-establish the severed link between the
Muslim society’s code of ethics and the . In Muslim societies, since the
advent of , the code of ethics has always been Qura’n, Hadith, Ijtehad
(Reasoning) and Ijmaa (Consensus). Islamic is not a recent invention. It has
a history of being in practice for about 1400 years until 1924 when Ottoman
Caliphate collapsed. The said transition is inevitable as long as Muslims pledge
their allegiance to their sources of code of ethics. The process that has
started in almost all Muslim countries has been protracted for various reasons;
one of the reasons being its implementation through legislation, which is a
continuous, long, arduous and evolutionary process.



As this process of implementation is taking place, the Islamic and
jurisprudence have also come under international scrutiny since it presents a
historically proven and viable alternative to the existing English Common
and Napoleonic Code. One of the main issues that have come under the spotlight
is the worth and position of in Muslim society as defined by the Islamic
. The following lines sum up the key issues, narrated by Lisa Beyer who wrote
in Time magazine recently "…Nowhere in the Muslim world are treated as
equals… Part of the problem dates to Muhammad. Even as he proclaimed new
for , he enshrined their inequality in immutable , passed down as ’s
commandments and eventually recorded in scripture. The Koran allots daughters
half the inheritance of sons. It decrees that a woman’s testimony in court, at
least in financial matters, is worth half that of a man’s. Under Shari’a, or
Muslim , compensation for the murder of a woman is half the going rate for
men. In many Muslim countries, these directives are incorporated into
contemporary . For a woman to prove in , for example, four adult
males of "impeccable" character must witness the penetration, in accordance with
Shari’a" [1].



Today when has become the focus of the world, people who write about it
oft repeat such contentions. The fundamental topic that we will discuss in this
article is the question whether promulgates or not?
There are two aspects to this fundamental topic - one deals with the status of
in the Islamic and other discusses the status of in Islamic
social structure. These two facets are two sides of the same coin. One has to
understand both of theses related and entwined aspects to do with the
whole idea.



This analysis is done in three parts. The first part lays down a list of basic
Islamic legal terminology, which is necessary to understand the structure of our
argument. In the second part we will try to understand what part of Islamic
takes into consideration in its working. The third part deals with the
philosophical base behind those considerations. There are two arguments
in this part - the first argument i.e. ‘an argument of biology’ discusses
specifically the matters related to the whereas the second argument
discusses the differences between the concepts of and
equity and how these concepts define the status of in Islamic social
structure.



PART 1: THE BASICS OF ISLAMIC



Before we start the discussion on the subject, it is imperative for the readers
to understand some of the basic terminology and ideas in Islamic jurisprudence.




1.1 Categories of Crimes in Islamic Penal : Muslim Fiqah or penal divides
crimes into three categories: Hadud, Ta’azir, and Qisas.



1.1.1 Hadud (s. Hadd) crimes: is a set of eight crimes which along with their
punishments are defined in the Qura’n and/or specified explicitly in the Hadith.
The eight Hadud crimes and their punishments are: (i) Stoning to (rajm)
for adultery (zina); (ii) one hundred lashes for fornication; (iii) eighty
lashes for slandering a chaste woman i.e., accusing her of adultery or
fornication; (iv) for apostatizing from (irtida’d); (v) eighty
lashes for drinking wine (shurb); (vi) cutting off the right hand for theft;
(vii) cutting off of one foot and one hand for highway robbery; and (viii)
for robbery accompanied by murder. [2]



1.1.2 Ta’azir: Ta’azir crimes and punishments are those, which are neither
defined in Qura’n nor did the Holy Prophet leave any specific instruction about
them. These crimes and punishments are left on the discretion of society.
According to the overwhelming Ijma’a (consensus) of Muslim jurists
punishment cannot be imposed for Ta’azir crimes and corporal punishment in this
case cannot exceed 10 lashes. This consensus is, however, not without dissent.
Some Ulema hold that the number of stripes is to, be determined on the basis of
the enormity of the crime. [2]



1.1.3 Qisas (Restitution): The crimes that fall under this category are murder
and the cases where someone has either accidentally or deliberately and unjustly
wounded and mutilated or murdered another. In these crimes the empowers the
victim or the next of kin to accept blood money (diyat) as compensation. In case
if the next of kin foregoes his right to accept blood money a ta’azir punishment
is imposed upon perpetrator which in case of murder may be capital.
[2]



1.2 Islamic of Evidence: There are four components of Islamic of
Evidence, which are used to prove a case against an accused.



1.2.1 Confession: There are stringent restrictions on obtaining a confession. A
confession must be acquiesced without coercion. The accused must be fully
explained the consequences of his confession and he is given several chances to
recant from his confession. The evidence of confession is applicable to both Hadd and Ta’azir crimes.



1.2.2 Bearing Witness: Bearing witness to a crime has special significance in
Islamic jurisprudence. As a matter of fact a whole branch of has evolved
based on the principles elaborated in Qura’an, Hadith and legal precedence set
forth by companions of Prophet (pbuh), the early jurists and Imams. This branch
of is called Qanun-e-Shahadat ( of bearing witness). The minimum
requirement for the number of witnesses required for any situation, in general,
is two. In most of the cases the testimony of a woman is equal to that of a man.
However, there are exceptions to this rule, which are discussed in detail in
Part II.



1.2.3 Circumstantial Evidence: Circumstantial evidence is permissible but only
after strict scrutiny and for Ta’azir crimes only.



1.2.4 Forensic Evidence: Forensic evidence is permissible but cannot be used to
impose Hadd punishments.



1.3 Standard of Witness - Nisa’b-e-Shahadat:
The phrase "standard of witness" (Nisa’b-e-Shahadat)
is legal jargon, which refers explicitly to the number of witnesses required to
prove a certain offence or to establish the legality of an issue e.g. a business
contract or a will in Islamic . The term also refers to the credibility of
witness (tazkia-al-Shuhood) i.e. witness must have an impeccable character,
which means that he has a good reputation and must have not been convicted of
any crime, etc. Most of these standards are set forth by Qura’n itself and some
have been established through Ahadith or the consensus of later jurists. The
minimum number of witnesses required in any case is two, as discussed above; and
the testimony of a woman is equal to that of man except in certain cases, which
are discussed in Part II.



1.4 Benefit of : In Islamic jurisprudence an accused is considered innocent
until proven guilty; therefore, burden of proof lies solely on the accuser
and/or prosecution. We will see that, in Islamic criminal procedure, there are
very stringent requirements to successfully prove a case in the court where
benefit of always goes to the accused.




PART II - THE ROLE OF IN ISLAMIC OF BEARING WITNESS (Qanun-e-Shahadat)



The Islamic of bearing witness i.e. Qanun-e-Shahadat is complex and very
comprehensive. It has originated, basically, through several verses in Qura’n,
which lay down the guiding principles and through several Ahadith, which
elaborate on those principles. These verses detail the standard of witness i.e.
number of witnesses required to prove a case and also the qualifying criteria
for someone to bear a witness. These standards are being discussed here briefly
along with the verses from which they are derived. In order to be brief and to
the point we will only elaborate on that part of Qanun-e-shahadat which deals
with the testimony of , since it is the main topic of this article.



As a general rule, in Islamic , the witness of a woman is equal to that of a
man, but there are some exceptions to this rule. These exceptions occur in three
different variations, which are as follows:



- Situations where ’s testimony is not accepted;

- Situations where men’s testimony is not accepted;

- Situations where testimony of two with one man is acceptable.



A brief discussion on these variations follows:



2.1 Situations Where ’s Testimony Is Not Accepted



There is a general consensus (Ijma’a) among Muslim jurists - based on Qura’nic
edicts, the traditions of the Holy Prophet (pbuh) and the rulings of the two of
his immediate successor Caliphs - that the testimony of is not acceptable
to establish a Hudd and Qisas punishment [3, 4, 5]. Maliki Fiqah also does not
allow ’s testimony in case of violent crimes, which fall under Ta’azir
category [4]. It must be kept in mind that the minimum number of witnesses
required to prove a crime, which falls under any of these three categories,
varies. Except in the case of slander, adultery, and fornication, the minimum
number of witnesses required is two adult males of impeccable character. In
case, the standard of witness is not met, (e.g. in case of theft, if there is
one male and one female witness) the state cannot impose Hudd punishment (which
is the amputation of a hand); the sentences may be reduced and crimes may be
prosecuted as Ta’azir crimes.



It is necessary to discuss certain Hudud crimes i.e. slander, fornication and
adultery briefly so that the arguments presented in Part III may be understood
better.



Slander : If someone (other than one’s spouse) launches a charge of adultery or
fornication against a chaste woman or if someone merely slanders a woman of
doing so, must prove his case by producing four adult male witnesses, otherwise
the woman has the right to drag him to the court. Failure to support ones
allegation with four witnesses, who must have seen the act of penetration, would
result in severe punishment; as Qura’n illustrates "And those who launch a
charge against chaste , and produce not four witnesses (to support their
allegations),- flog them with eighty stripes; and reject their evidence ever
after: for such men are wicked transgressors" - An-Nur (The Light) 24:4.



Muslim jurists, on the basis of logical equivalence and guidance from Qura’n
have extended the applicability of this to protect the honor of chaste men
as well. Qura’n says " And those who malign believing men and believing
undeservedly, they bear the guilt of slander and manifest sin" - Al-Ahzab (The
Confederates) 33:58.



Fornication or Adultery: In an Islamic society the acts of fornication and
adultery are strictly forbidden and they are cognizable offenses. The punishment
for such crimes is severe: stoning to for adultery [6] and 100 lashes with
an exile for a year for fornication [7]. As the punishments are so severe the
standard of proof required to prove these offenses is also very stringent. For
prosecution, the minimum requirement to prove the case against someone who is
charged with such offense is a witness account of four adult males
[8], of
impeccable character, who must have seen the act of penetration in person. In
this case the circumstantial or medical evidence such as blood, sperm or DNA
test are not permitted. But this does not mean that if medical or circumstantial
evidence is available and evidence is less than that of four adult male
witnesses the accused go Scot free instead they may be charged and tried with Ta’azir crime
[9]. Fiqah Ja’fria makes an exception to this rule of four male
witnesses and allows the testimony of two with three men also to establish
the Hadd punishment [10].



A Special Note on Adultery: When a spouse charges other with , he or
she does not have to provide the testimony of four adult males to prove his or
her case (unless there are actually four witnesses available). In case there are
no witnesses, the Hudd punishment of slander cannot be imposed on accuser and
that of adultery on the accused, unless the accused voluntarily confesses of
committing adultery. Such an issue between two spouses is settled by an oath by
each spouse and the is annulled by the state. This is called La’an
and the procedure is elaborated in the verses 6-9 of chapter An-Nur (The Light),
which are self-explanatory: "And for those who launch a charge against their
spouses, and have (in support) no evidence but their own,- their solitary
evidence (can be received) if they bear witness four times (with an oath) by
Allah that they are solemnly telling the truth; And the fifth (oath) (should be)
that they solemnly invoke the curse of Allah on themselves if they tell a lie.
But it would avert the punishment from the wife, if she bears witness four times
(with an oath) By Allah, that (her husband) is telling a lie; And the fifth
(oath) should be that she solemnly invokes the wrath of Allah on herself if (her
accuser) is telling the truth". An-Nur (The Light) 24:6-9



A Special Note on : is not a Hudd crime; therefore, the requirement of
four adult male witnesses to prove one’s accusation is not required. The Hudd
punishment of fornication can only be imposed on the accused if he (or she)
confesses or there are four adult male witnesses who happened to have witnessed
that crime. Similarly, the accuser (i.e. victim) cannot be charged with
slander or (that of confessing to have committed fornication) if she (or he)
fails to prove her (or his) case.



Unfortunately, when Hudud Laws were enacted in , through the Hudud
Ordinance in 1979, these delicate points regarding and adultery were not
taken into account neither in Criminal Procedure Code (Cr.PC) of the courts nor
in the police investigation manuals. That unleashed an untold misery upon
(and men), who were charged with fornication or adultery. Thousands of
were incarcerated just because their husbands accused them of adultery and
courts and police did not have instructions on how to proceed with those cases.
Most cruel treatment was meted out to who were victims of ; as they
were asked by police and courts to produce four witnesses who must have seen the
. And as they failed to do so they in turn were charged with confessing of
having committed fornication. Such draconian laws raised national and
international outcry; but since for the past 20 years or so, legislation in the
country has been in limbo because of the political situation, this cruelty went
on. This is one of the darkest chapters in the history of jurisprudence and
in - a source of eternal shame for Muslims in this country.



Fortunately, on June 6, 2002, Federal Shariat Court in a landmark ruling in a
case of State vs. Zafaran Bibi ruled that a woman, if coerced into committing
fornication, couldn’t be charged with Hudd or Ta’azir. (Please check this
reference to see details of this case and how court ruled on it [11]). This
ruling clarified certain aspects of as compared to fornication and came as
the first sign of relief for unfortunate around the country after decades
of suffering. A lot more has to be done in this regard, but still the
legislative procedure, the system of courts and police procedures in the country
are in abysmal shape.



2.2 Situations where Men’s Testimony is not Accepted



A list of such situations along with a brief description is discussed below:



Witnessing the live or Still Birth: According to the standard of witness set
forth by Holy Prophet (pbuh) the witness of one woman who acted as midwife can
be accepted. [12]. Man’s testimony is not accepted in such situations.



Suckling: In case if there is a dispute on whether a woman suckled a child or
not a judge may accept the sole testimony of the woman who suckled the child.
This is an important issue in marriages because two who have suckled
the same woman whether she was their mother or not become siblings.
[13]



Medical Evidence: In case medical evidence is required by court as regards to
’s private parts then one woman can testify. This also includes the case of
where medical evidence is obtained by examination. [14]



Testimony of Iddah: The Waiting Period: The word Iddah refers to the period of
waiting for re- after the of a woman’s husband or her separation
or from him. She can use the testimony of one woman to establish that
her waiting period is over. It is very important because there is different
kinds of iddah, for different situations and this information is of great
importance to settle the issues like mehr (dowry), property, paternity, alimony
and child support etc. [15].




2.3 Situations Where Testimony of Two Along with a Man may be admissible



It must be kept in mind that in Islamic , in order to establish the legal
status of an issue, at least two witnesses are required except in some cases as
discussed above. As a general rule the witness of a woman is equal to that of a
man. But in certain cases the condition is imposed that either there should be
two male witnesses or one male can be replaced with two female witnesses. This
rule largely applies to the situations where a financial transaction takes
place. This rule emerged from a Qura’nic edict and also from the tradition set
forth by the Prophet (pbuh) and two of his immediate successor Caliphs. This
verse in chapter Al-Baqara (The Heifer) is an extremely important verse because
it establishes several principles in Islamic of Business Transactions; an
elaborate and comprehensive , which deals with a variety of subjects like
sale and ; debt; transference of debt; representation, authorization, and
business by proxy; loans, payment of loans, freezing of property, bankruptcy;
mortgaging, partnerships and witnessing a bequest (will) etc. [16]. The verse
elaborates the principles in these words:



"O ye who believe! When ye deal with each other, in transactions involving
future obligations in a fixed period of time, reduce them to writing. Let a
scribe write down faithfully as between the parties: let not the scribe refuse
to write: as Allah Has taught him, so let him write. Let him who incurs the
liability dictate, but let him fear His Lord Allah, and not diminish aught of
what he owes. If they party liable is mentally deficient, or weak, or unable
Himself to dictate, Let his guardian dictate faithfully, and get two witnesses,
out of your own men, and if there are not two men, then a man and two ,
such as ye choose, for witnesses, so that if one of them errs, the other can
remind her. The witnesses should not refuse when they are called on (For
evidence). Disdain not to reduce to writing (your contract) for a future period,
whether it be small or big: it is juster in the sight of Allah, More suitable as
evidence, and more convenient to prevent doubts among yourselves but if it be a
transaction which ye carry out on the spot among yourselves, there is no blame
on you if ye reduce it not to writing. But take witness whenever ye make a
commercial contract; and let neither scribe nor witness suffer harm. If ye do
(such harm), it would be wickedness in you. So fear Allah; For it is Good that
teaches you. And Allah is well acquainted with all things. If ye are on a
journey, and cannot find a scribe, a pledge with possession (may serve the
purpose). And if one of you deposits a thing on trust with another, let the
trustee (faithfully) discharge his trust, and let him Fear his Lord conceal not
evidence; for whoever conceals it, - his heart is tainted with sin. And Allah
knoweth all that ye do" - Al-Baqara (The Heifer) 2:282.



Several principles of Islamic of Bearing Witness (Qanun-e-Shahadat) have
also been derived from this verse. The underlined part dictates the position of
in the laws regarding business transactions. Since this is the main
subject of this article, a detailed discussion follows in succeeding part.




PART III: ’S EMPHASIS ON DIFFERENCES - THE PHILOSOPHICAL BASES



3.1 Benefit of - An Argument of Biology



and Jurisprudence are means to an end i.e. to serve . They are an
evolutionary process. Laws change as the time changes and as societies face new
challenges new laws are made and old laws are either discarded or modified
through new reasoning according to the of jurisprudence to meet those
challenges. The challenges of the present time have forced us to look into the
reasons why has placed an emphasis on the issue of differentiation
in the matter of ; and then we can try to re-interpret those laws. Why we
need an argument based on biology? One should ask why not. If can
differentiate human beings into males and females because of their physiology,
and when this physiological differentiation forms the basis of the two separate
branches of psychology - psychology of men and psychology of - then why
can’t we study or at least look into the of jurisprudence from
based perspective. Not only the of physiology and psychology but also
that of sociology has confirmed that men and behave differently when
subjected to the same stimulus. This difference is well pronounced in learned
behaviors, which is understandable, but it is even more expressive in the
instinctive behaviors. About 50 - 60 years ago, the following argument was not
even possible, because neither the concept of ’s - as we know it
today - was known nor the medical was so advanced to bring forth this
argument.



We start our examination from verse 2:282 - as discussed in detail in Part II-
which stipulates that " ….and get two witnesses, out of your own men, and if
there are not two men, then a man and two , such as ye choose, for
witnesses, so that if one of them errs, the other can remind her ….". If we look
at the Arabic text of 2:282 the word used for "….errs" is "tadahila" which
literally means "loses the way," "gets confused," or "errs." The question arises
as to what makes a woman "lose her way" or get "confused" and how they are
different from men who do not similarly "err" or "get confused". If we search
for explanations, the first thing we look at for guidance - according to the
principle of Islamic Jurisprudence - is the Ahadith of the Prophet (pbuh). There
is a Hadith, which indirectly points us to physiological differences between
genders. Here is the Hadith narrated by Abu Said Al-Khudri:



"Once Allah’s Apostle went out to the Musalla (to offer the prayer) of ’Id-al-Adha
or Al-Fitr prayer. Then he passed by the and said, "O ! Give alms, as
I have seen that the majority of the dwellers of Hell-fire were you ()."
They asked, "Why is it so, O Allah’s Apostle?" He replied, "You curse frequently
and are ungrateful to your husbands. I have not seen anyone more deficient in
intelligence and than you. A cautious sensible man could be led astray
by some of you." The asked, "O Allah’s Apostle! What is deficient in our
intelligence and ?" He said, "Is not the evidence of two equal to
the witness of one man?" They replied in the affirmative. He said, "This is the
deficiency in her intelligence. Isn’t it true that a woman can neither pray nor
fast during her menses?" The replied in the affirmative. He said, "This is
the deficiency in her ." [17]



This leads us to present our main argument, which has only become possible as
the medical has progressed and we are getting to know ourselves better.




Woman’s body is unique and dissimilar from man in several respects. have a
unique reproductive system and throughout its biological life it passes through
certain cyclical changes. Some of these changes are temporary yet others are
permanent and bring along with them certain consequences that are unique to that
particular phase.



A woman’s adult biological life can be divided into three main phases:
pre-menopause phase, pregnancy and post menopause phase. Throughout these stages
a woman’s body goes through certain changes that affect her emotional level and
cognitive abilities. These are not diseases or disorders but they are natural
processes, which support and maintain the ability of reproductive system. As we
will see below in the detail of these phases, the changes in the reproductive
system affect not only the physical abilities but also the cognitive abilities,
and moods. Some of these changes constitute an altered ability to concentrate,
memory , and mood swings. It is not only hard but almost impossible to be
certain when these changes have affected a woman. It is like a headache, which
cannot be seen nor a scanner can detect it, yet it affects . This
phenomenon creates a when a woman stands in the court of as a witness
and the life of a human being depends upon her testimony. In case of criminal
cases the benefit of is always awarded to the accused whereas in financial
matters the interests of two parties cannot be safeguarded if there is on
the cognitive ability of the woman who signed and witnessed the deal. That is
exactly the reason why in some cases ’s testimony is not permitted in
while in other cases it is valid if two testify. A brief description of
three physical phases, as discussed above, follows:



3.1.1 Premenstrual Syndrome (PMS) and Premenstrual Dysphoric Disorder (PMDD):






Premenstrual syndrome (PMS) refers to the variation of physical and mood
symptoms that appear 10-14 days prior to the menstrual cycle and disappear by
the end of a full flow of menses. This is a diagnosis used by Ob-Gyns and
primary care physicians. Psychiatrists and other mental workers tend to
use the diagnosis term of Premenstrual Dysphoric Disorder (PMDD) [18; 19; 20].



Up to 80% of have cyclic symptoms associated with their menses; between
20-40% have moderate complains but only about 3-9% have symptoms so severe
that it interferes with work, school, usual activities or . The
average onset is 26 years of age with symptoms often becoming worse over time.
[19a]



Premenstrual symptoms are not a modern phenomenon; during the 5th century B.C.
Hippocrates wrote about cognitive premenstrual symptoms. Writings from the time
of late Renaissance show that the premenstrual suffering was commonly reported
and a survey conducted in year 1800 showed that 20% of all experience
serious psychological troubles pre-menstrually [19b].



Common Premenstrual Symptoms may be classified into three categories: Physical
Symptoms, Mood Symptoms and Cognitive Symptoms. For brevity only the cognitive
symptoms are being listed in detail, and those are:

Feeling out of Control, difficulty concentrating, forgetfulness, strained
personal relations, increased interpersonal conflict, avoidance of social
situations, decreased interest in hobbies and activities, and decreased
self-image. [19c]



Although there is dispute concerning the nature, symptoms and treatment of
premenstrual syndrome (PMS), its physiological existence is well recognized in
English Common . In the 1980s, the criminal courts of Canada and England
tentatively recognized PMS as a relevant factor in the determination of legal
responsibility [21]. However, this defense argument had already resulted in
acquittals and/or successful pleading of diminished responsibility prior to the
1980s for offences ranging from shoplifting to manslaughter [22]. The most
recent overseas case widely publicized in the press was heard in the United
States during 1991. It may be reflective of the perspective contained in the1990
supplement to Crimes of Violence: Homicide and Assault, by the noted American
lawyer, F. Lee Bailey. He devotes a chapter to PMS, noting that "…it is a
fruitful area for the diligent attorney to pursue . . . Those who suffer
symptoms severe enough to impair their emotional or mental functions are a small
proportion of the who suffer from PMS. Do not try to raise the defense
unless you can back it up with solid medical evidence" (Bailey & Fishman 1990,
p. 728). [22a]



For more information on the studies related to PMS and related deviant behavior
and its place in judicial system check the reference [23].



3.1.2 Pregnancy:



Studies have shown that in their third trimester of pregnancy experience
forgetfulness approximately 15 percent more than the average person. Although
decreased estrogen levels have been associated with decreased memory recall,
researchers have had trouble finding the reason for forgetfulness during
pregnancy, when estrogen levels are more than 1,000 times greater than that of a
normal ovulatory woman. One possible explanation is the high level of Oxytocin
during the third trimester. As Dr. Keenan of Wayne State University Medical
Center notes, Oxytocin is known to have an amnesic effect, which may contribute
to a weakened memory. Another possibility is the two to fourfold increase in
free Cortisol levels during the third trimester. There is increasing evidence
that high levels of Cortisol may adversely affect the Hippocampus, which plays a
critical role in learning and memory. Furthermore, Estradiol and Progesterone
levels are at their peak during the third trimester, but previous reports
indicate an association between hypo- rather than hyper-estrogenic states and
impaired memory [24].



In English Common the menopause and postnatal psychosis have been
instrumental in dismissal of criminal charges for minor offences since and prior
to 1980s. [25]



3.1.3 Perimenupause and Menopause:




Researchers in the burgeoning field of psychoneuroendocrinology - the interface
of psychology, neurology, and endocrinology - have learned that Estrogen,
Progestrone, thyroid and adrenal hormones are critical regulators of brain.
Imbalances among one group of hormones can trigger imbalances in other groups:
brain is influenced by endocrine factors that impinge on each other in a complex
interplay. Without a proper balance we are vulnerable to mental and sexual
disturbances. [26, 27]



Perimenopause, or pre-menopause is a transitional stage of two to ten years
before complete cessation of the menstrual period. Its average duration is six
years, and can appear in from 35 to 50 years of age. During this stage a
woman can find herself experiencing puzzling changes, and not know why. What is
actually going on is a gradual decrease of estrogen. The manifestations of
perimenopause can vary.



Between the ages of 20-50, before the onset of menopause, the estrogen levels
drop 70-80%. The subtler changes before menopause may be enough to effect mood,
memory and ……And a testosterone drop of 40-50% prior to menopause is a
direct factor in the of sexual desire in many peri- and post menopausal
[26a]



The hormonal changes can cause marked shift in cognition, mood, and behavior.
Not all experience them, but for those who do the common cognitive
symptoms are [26b]:



- Forgetting things you said or did within the past few days, hours, minutes.

- Losing the train of conversation, so you have to ask people to repeat things
they have just said

- Misplacing things with in moments of putting them somewhere, such as keys or
glasses

- Forgetting names, sometimes even your own members.

- Fading memories don’t come to you as accurately or quickly

- Saying malapropisms - wrong words that sound similar to ones you intended

- Difficulty focusing or concentration work or other tasks

- Feeling hazy or fuzzy-headed, so that your thought process seem foggy.

- General absent-mindedness

- A change in faculties such as reading ability, driving or writing.



Prior to the 1980s, menopause and postnatal psychosis had been instrumental in
dismissal of criminal charges for minor offences. [28]




3.2 vs. Equity - An Argument of Sociology




3.2.1 The Western Concept of



Sin ce the most vehement criticism of the status of in Muslim societies
comes from West, it is necessary that we explore the genesis and evolution of
the concepts of , , and Individualism in Western
societies and find out how these ideas took their contemporary form. These ideas
emerged through an evolutionary process, which was the result of Western thought
process and the social changes that span over centuries, beginning with
Crusades. At the time of Crusades the people of Europe were under the iron grip
of Church and a feudal . The Crusades impacted them both. First, when as
a result of Crusades Muslims lost their control over the Mediterranean seaway
new routes became available to Europeans and a mercantile class emerged
and based surfaced. Secondly, partly due to this economic change
and partly due to the interaction with Muslim societies, people in Europe
started demanding freedom from the clutches of brutal oppression of Church on
and doctrinal hold on personal freedom. Initially people’s struggle was
against the Pope and Church only, but when Church responded back in the name of
people eventually turned against the as well; and since Church
had such an overwhelming control over the lives of people they started
considering as the greatest hindrance to their well-being. The Church
eventually collapsed. This collapse had a very profound effect on and on
people as individual and as society [29].



The most profound effect of this change on the people was that they started
seeing economic freedom and personal freedom as two connubial and inseparable
concepts. Thus as the evolved through a period of revolutionary
economic change between 13th and 19th century - formation of guilds of artisans
and merchants (12th -13th century); the discovery of America, Australia and new
routes (14th - 16th Century); establishment of colonies; the Industrial
(1750-1850) etc. - the economic theory evolved into such ideas as
that of doctrine of laissez-faire. This doctrine stresses that an economic
system functions best and secures the maximum well-being for the individual and
community when there is no interference by any (moral or governmental, sic.)
authority. Similarly, at individual level, what started as the guilds of
artisans and merchants winning immunity from feudal and Church dues and bonds
formed the core of individual freedoms [30]. But at the moral front man’s
eternal quest for a guiding compass, which was lost with the collapse of church,
gave rise to philosophers and thinkers like Hobbes, Locke, Mill and Voltaire who
tried to find a moral compass that on one hand must not include divinity and on
the other hand could keep the economic interests prime at the same time. The
unfortunate consequence of these ideas was that the ’human being’ was degraded
into ’human resource’; a tool and mean of production; a commodity on which a
price-tag could be attached. That provided the necessary seed out of which the
concept of Individualism shoots out.



The emergence of the ideal of must also be viewed through this
perspective and background. In the emerging Individualist societies had no
other choice but to prove themselves not only as a viable ’human resource’ but
as one that was as good as their male counterparts. This mindset triggered the
genesis and subsequent evolution of and today we have essentially three
different strands of feministic thought - which can be labeled as First Wave or
Equity Feminists, Second Wave or Feminists, and Third Wave or Individual
Feminists (I-Feminists), respectively.



The First Wave Feminist movement traces back its roots to Mary Astel, the
British author who in 1694-97 proposed the idea of a woman’s college. During the
French , ’s republican clubs demanded that ideals of liberty,
, and fraternity be extended to as well [31].



In North America, when the United States was being written, Abigail
Adams and Mercy Otis Warren stressed for the inclusion of ’s emancipation
in the . In 1848, at Seneca Falls, N.Y., the first ’s right
convention was held where a declaration of independence for was issued,
which demanded full legal , full educational and commercial opportunity,
equal compensation, the right to collect wages, and the right to vote. Under the
leadership of Elizabeth C. Stanton and Susan B. Anthony, the movement spread
rapidly and soon extended to Europe [31].



By 1920, when in the United States were enfranchised, they had already won
the for higher , entrance into trades and professions, and
married ’s to property. At that time were divided on the
question of equal standing with men versus some protective legislation. Some
protective legislation were enacted in the 19th century that limited the number
of hours could work per week and excluded from certain high-risk
occupations [32].



The World II drew a generation of out of home and into workforce, both
in North America and Europe; for the very first time experienced the
emotional and financial independence. In 1946 the UN Commission on the Status of
was established to secure equal political , economic , and
educational opportunities for throughout the world.



The Equity Feminists of today, conservative in their outlook, associate
themselves with the First Wave Feminists; they acknowledge that there are
inherent differences between the sexes and seek specific reforms to address
issues which they perceive as unequal treatment in society.



The Second Wave or " Feminists" emerged in 1960s. Greatly influenced by
Betty Friedan’s 1963 bestseller The Feminine Mystique and incensed with the
findings of President Kennedy’s Commission on the Status of (pcsw) report
in 1964, the movement took a more radical form. The National Organization for
(NOW) was formed in 1966, to fight the widespread at
work as reported by the PCSW investigation. The moderate faction of this new
wave of feminists, which called themselves "socialist-feminists"
considered as the sole source of male dominance; they pressed for
such changes as abortion , federally supported child care centers, equal
pay for , the occupational upgrading of , the removal of all legal and
social barriers to , political influence, and economic power for
[33]. On the other hand the radical faction under the leadership of feminists
such as Shulamith Firestone, Kate Millett, and Ti-Grace Atkinson, propounded
that the exists as a social construct and not as a biological fact. They
were the first to criticize the institution of , the nuclear ,
normative heterosexuality, violence against , and sexist care.



The Feminists of today associate themselves with the radical ideologues
of the ’60s. This group propounds that any psychological or social differences
between men and are rooted in the oppression of a patriarchal structure
that seeks to make lesser persons than men. They seek to end patriarchy
and maintain complete egalitarianism between the sexes [34]. So they seek to
abolish all social structures that in their perception support this patriarchy -
they propound prostitution, , and right to bear without
the institution of as basic human right. They advocate the
-neutral translations of the Bible and promote the idea of "goddess
within". One such feminist, Genie Webster echoes such demands as, "True
of the sexes will come when is universally perceived as androgynous".



The Third Wave or Individualist Feminists are mainly Generation Xers and
younger. Their tenets are not as radical as that of Feminists, yet they
are generally not as conservative as the equity feminists either and tend to
advocate liberal causes such as abortion on demand etc. In the words of Wendy
McElroy, I- is based on the belief that all human beings have a right to
the protection of their persons and property. It applies the principle "a
woman’s body, a woman’s right" to every issue that confronts today from
reproductive choices to pornography, economic opportunity to prostitution. In an
ideal society the legal system would make no distinction based upon secondary
characteristics, such as race or sex but protects of each individual
equally [35].



3.2.2 The Concept of Equity in :




In order to understand the concept of Equity in , first it is
necessary that the social structure of a Muslim society must be understood and
there must be an understanding of the nature of those cohesive forces that keep
that structure intact. But before that we need to summarize what we have found
about the Western concept of and how in the western social
structure are placed in it.



We see from the above argument that in the Western culture, the concept of
and is not of a monolithic character rather it goes to
the extents on either side - on one extent we have those who believe in
equity and on the other we have those who do not even want to recognize the
physiological differences between genders. But no matter how we look at these
extents, there is one common denominator, a prime mover behind the whole idea of
and , and that is, the economics. As we have explored
through the history that the of in Western societies were not
granted to them voluntarily, or out of kindness, or with mutual consent or
divine teachings; had to work very hard for them because of the compulsion
of the economic pressures. She was forced by circumstances and in turn she
forced herself through and acquired her new status. But to gain with
men - in , at work, in earnings, and to prove herself as a viable human
resource - she had to make painful sacrifices and give up many of her natural
. As a matter of fact if we look at the stage the feminist struggle is now
at, we see that Western woman wants absolute freedom with no strings of
responsibilities attached - not because her nature has changed but because that
is what individualism driven by economic prime mover demands from her.
Unfortunately, for what she perceives as her ultimate freedom and with
man, demands her to strip off the very essence of being a woman. She perceives
as an obstacle in her personal freedom because she cannot make a
distinction between her personal and financial freedom - to her, the spouse is a
potential financial liability. The economic compulsions have put men and
in adversarial and competitive positions and now no one wants to be a loser in
this competition. So she wants to abolish the institution of . She sees
economic value in her body and she wants to cash it too by recognizing
prostitution as her basic human right. She perceives as an obstacle to
her freedom and she sees feticide as a way out of this responsibility. She wants
feticide and prostitution to be accepted as social norms because she wants to be
as guilt free as that of the Individualist man. And individualist man is
indifferent because he considers these things as an obstacle to his freedom too.
Perhaps, the reason for his apathy is that he thinks of himself as a survivor of
someone else’s choice, while he never had one. If freedom means killing your own
flesh and blood, then we should really question the worth of that freedom.



On the other hand, in , the economics is just one aspect of its moral and
social cosmography. It presents a complete code of life, which engineers a
society with an integrated approach. It compares and views society as a human
body, where if one part gets hurt the whole body feels the pain [36]. It gives
its adherents a purpose of life - life has a meaning and it is to achieve the
blessing of in this world and beyond. This world is like a field, in the
words of Holy Prophet (pbuh), where we sow seeds of our actions, and harvest the
fruit (of those actions) in the afterworld.



In order to achieve the blessing of one has to recognize two sets of .
One set of is called the of (Haququllah) and other is called
of People (Haququl ibaad). The ultimate accountability with regards to
these lies with . A man fulfills Haququllah by offering the ritual of
worship (Declaration of , Prayers, Fasting, Pilgrimage, and Zakat
(mandatory alms)). These are a matter between man and [37]. The
second set of defines his responsibilities towards the society. These
and responsibilities are expressed in an elaborate system of ethical
and laws. It is interesting to note that an ethical value may not be a
in Islamic society but every also represents an ethical value. This is a
delicate point to understand because that forms the basis of our understanding
of the forces that coalesce a Muslim society together. For example, being kind
and loving to the orphans is an ethical value and there is no that can
enforce that but guarding their property and wealth until they become adult is
an ethical value and a . But interestingly, whether we recognize a certain
ethos as only an ethical value or a , the ultimate accountability is towards
. Without the backing of an ethical value a creates only resentment and
contempt and sometimes it is meaningless. Whereas has stressed that the
of people are as important as His own or even more so because He
may totally reject a person’s fulfilling of His if he neglected on
recognizing his responsibility towards society. So there is a mutuality and
reciprocity of and r

Islamic law and jurisprudence have also come under international scrutiny since it presents a historically proven and viable alternative to the existing English Common Law and Napoleonic Code. One of the main issues that have come under the spotlight is t