{"title":"伊斯兰教法与妇女权利:马尔代夫对平等与非歧视国际人权规范的渴求","authors":"Shamsul Falaah","doi":"10.1515/mwjhr-2016-0009","DOIUrl":null,"url":null,"abstract":"Abstract The topic of the rights of women is a contentious and diverse one; it continues to fuel debates in both Muslim-majority and other countries. In principle, all agree that women are entitled to rights. However, particularly in Muslim-majority countries, there is a fierce debate about how and to what extent women are entitled to certain rights. On the one hand, some scholars advocate for the rights of women without deference to gender inequality or discrimination in comparison with men, while on the other hand, other scholars try to defend the inequalities and discriminations that arise from religious or cultural norms. In this regard, the literature relating to the status of women’s rights in the Muslim-majority countries gives rise to vigorous criticism. Much of this criticism relates only to the domestic laws of specific countries and their interaction with the broader international human rights norms. Although there is some discussion about the status of women’s rights in the Maldives, this discussion occurs only in Non-Governmental Organizations (both local and international) and in international forums; apart from an occasional passing mention of the Maldives in other areas of debate, thus far, there has been no academic discourse devoted to the rights of women in the Maldives and their relationship to the international human rights norms of equality and non-discrimination. This article contributes to filling this gap by studying the status of the two norms of international human rights – equality and non-discrimination, in the Maldivian context. The study hypothesises that there are potential tensions within these two norms arising out of the incorporation of Islam in the Maldivian Constitution and that these tensions can be harmonized through the techniques and tools of Islamic Shari’ah. The research finds that a maqasid-oriented ijtihad (al-ijtihad al-maqasid) could be the most suitable method for easing the tensions arising out of qat’iatil dilala (the explicit rulings in the Quran and Sunnah); in the case of tensions falling under zanni (speculative) sources, the tools of takhayyur and talfiq could bring harmony to the tensions arising. It is suggested here that these methods be used for the reforming and interpretation of laws and by way of fulfilling the international obligations of the Maldives. This article concludes by discussing the challenges and recommendations for overcoming the challenges in order to achieve the main objective of resolving the potential tensions between the Maldivian law and the international human rights norms of equality and non-discrimination.","PeriodicalId":35445,"journal":{"name":"Muslim World Journal of Human Rights","volume":null,"pages":null},"PeriodicalIF":0.0000,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1515/mwjhr-2016-0009","citationCount":"1","resultStr":"{\"title\":\"Islamic Shari’ah and the Rights of Women: The Maldives’ Thirst for International Human Rights Norms of Equality and Non-Discrimination\",\"authors\":\"Shamsul Falaah\",\"doi\":\"10.1515/mwjhr-2016-0009\",\"DOIUrl\":null,\"url\":null,\"abstract\":\"Abstract The topic of the rights of women is a contentious and diverse one; it continues to fuel debates in both Muslim-majority and other countries. In principle, all agree that women are entitled to rights. However, particularly in Muslim-majority countries, there is a fierce debate about how and to what extent women are entitled to certain rights. On the one hand, some scholars advocate for the rights of women without deference to gender inequality or discrimination in comparison with men, while on the other hand, other scholars try to defend the inequalities and discriminations that arise from religious or cultural norms. In this regard, the literature relating to the status of women’s rights in the Muslim-majority countries gives rise to vigorous criticism. Much of this criticism relates only to the domestic laws of specific countries and their interaction with the broader international human rights norms. Although there is some discussion about the status of women’s rights in the Maldives, this discussion occurs only in Non-Governmental Organizations (both local and international) and in international forums; apart from an occasional passing mention of the Maldives in other areas of debate, thus far, there has been no academic discourse devoted to the rights of women in the Maldives and their relationship to the international human rights norms of equality and non-discrimination. This article contributes to filling this gap by studying the status of the two norms of international human rights – equality and non-discrimination, in the Maldivian context. The study hypothesises that there are potential tensions within these two norms arising out of the incorporation of Islam in the Maldivian Constitution and that these tensions can be harmonized through the techniques and tools of Islamic Shari’ah. The research finds that a maqasid-oriented ijtihad (al-ijtihad al-maqasid) could be the most suitable method for easing the tensions arising out of qat’iatil dilala (the explicit rulings in the Quran and Sunnah); in the case of tensions falling under zanni (speculative) sources, the tools of takhayyur and talfiq could bring harmony to the tensions arising. It is suggested here that these methods be used for the reforming and interpretation of laws and by way of fulfilling the international obligations of the Maldives. 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Islamic Shari’ah and the Rights of Women: The Maldives’ Thirst for International Human Rights Norms of Equality and Non-Discrimination
Abstract The topic of the rights of women is a contentious and diverse one; it continues to fuel debates in both Muslim-majority and other countries. In principle, all agree that women are entitled to rights. However, particularly in Muslim-majority countries, there is a fierce debate about how and to what extent women are entitled to certain rights. On the one hand, some scholars advocate for the rights of women without deference to gender inequality or discrimination in comparison with men, while on the other hand, other scholars try to defend the inequalities and discriminations that arise from religious or cultural norms. In this regard, the literature relating to the status of women’s rights in the Muslim-majority countries gives rise to vigorous criticism. Much of this criticism relates only to the domestic laws of specific countries and their interaction with the broader international human rights norms. Although there is some discussion about the status of women’s rights in the Maldives, this discussion occurs only in Non-Governmental Organizations (both local and international) and in international forums; apart from an occasional passing mention of the Maldives in other areas of debate, thus far, there has been no academic discourse devoted to the rights of women in the Maldives and their relationship to the international human rights norms of equality and non-discrimination. This article contributes to filling this gap by studying the status of the two norms of international human rights – equality and non-discrimination, in the Maldivian context. The study hypothesises that there are potential tensions within these two norms arising out of the incorporation of Islam in the Maldivian Constitution and that these tensions can be harmonized through the techniques and tools of Islamic Shari’ah. The research finds that a maqasid-oriented ijtihad (al-ijtihad al-maqasid) could be the most suitable method for easing the tensions arising out of qat’iatil dilala (the explicit rulings in the Quran and Sunnah); in the case of tensions falling under zanni (speculative) sources, the tools of takhayyur and talfiq could bring harmony to the tensions arising. It is suggested here that these methods be used for the reforming and interpretation of laws and by way of fulfilling the international obligations of the Maldives. This article concludes by discussing the challenges and recommendations for overcoming the challenges in order to achieve the main objective of resolving the potential tensions between the Maldivian law and the international human rights norms of equality and non-discrimination.
期刊介绍:
Muslim World Journal of Human Rights promises to serve as a forum in which barriers are bridged (or at least, addressed), and human rights are finally discussed with an eye on the Muslim world, in an open and creative manner. The choice to name the journal, Muslim World Journal of Human Rights reflects a desire to examine human rights issues related not only to Islam and Islamic law, but equally those human rights issues found in Muslim societies that stem from various other sources such as socio-economic and political factors, as well the interaction and intersections of the two areas. MWJHR welcomes submissions that apply the traditional human right framework in their analysis as well as those that transcend the boundaries of contemporary scholarship in this regard. Further, the journal also welcomes inter-disciplinary and/or comparative approaches to the study of human rights in the Muslim world in an effort to encourage the emergence of new methodologies in the field. Muslim World Journal of Human Rights recognizes that several highly contested debates in the field of human rights have been reflected in the Muslim world but have frequently taken on their own particular manifestation in accordance with the varying contexts of contemporary Muslim societies.