Religious and State Laws on the concept of Zani (Essay Sample)

 
The Impact of Customary law, Religious law and State law on the concept of "Zina”.
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The Impact of Customary law, Religious law and State law on the concept of "Zina”.
The term ‘Zin’a is Arabic for describing illegal acts of sexual intercourse, between a man and a woman who are not partners in marriage. It is viewed in Islam as an infringement to the marriage union. The concept bears strict penalties for offenders within the Islam society whereby guilty married women stand to be stoned to death. Similar legislation is evident in other societies outside Islam (Cite: Abou-bakr, O. 2003. Teaching the Words of the Prophet: Women Instructors of the Hadith (Fourteen and Fifteenth Centuries). Hawwa: Journal of women of the Middle East and the Islamic World. 1(3). P306-328) . In Native American societies for example, server and strict penalties existed for wives guilty of the crime of adultery. Such penalties were carried out by the husbands of the guilty wives in these societies wherein the guilty were inflicted with unsympathetic physical punishment on their bodies that served the purpose of enabling the husband to ensure such actions would not be repeated again in future. (cite Schoolcraft, Historical and Statistical Information Respecting the History, Condition and Prospects of the Indian Tribes of the United States, I, 236; V, 683, 684, 686; H.H. Bancroft, The Native Races of the Pacific States of North America, I, 514;  ABA aug Journal 1969, p.738). The Manu people of ancient India on the other hand had laws which stated that "though destitute of virtue or seeking pleasure elsewhere, or devoid of good qualities, yet a husband must be constantly worshiped as a god by a faithful wife… if a wife, proud of the greatness of her relatives or [her own] excellence, violates the duty which she owes to her lord, the king shall cause her to be devoured by dogs in a place frequented by many." (cite Laws of Manu, V, 154; VIII, 371). Conversely, Christianity considers act of adultery to be a form of immorality in equal portion for both men and women. Even so, laws in England (a Christian country) instances involving married women with men apart from their husbands posed as a serious crime at personal and societal level. Chief Justice Lord John Holt of England indicated in 1707 that a man involving himself with another man’s wife conducted "the highest invasion of property" making the aggrieved man to bear provocation of the highest form.
Overview
According to traditional Islamic law, sex outside marriage is considered a crime against society. Such crimes are referred to as "zina", by definition, the term implies an amalgamation of all acts of sexual involvement between a given man and woman who are not a partner in holy matrimony (Cite: Abou El Fadl, K. 2001. Speaking in God’s Name: Islamic Law, Authority and Women. Oxford. Oneworld).
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Acts of "zina" are punished in a same manner for both men and women; the sentence involves a hundred lashes for unmarried people and stoning to death for married offenders, even though occurrences of such punishments are infrequent in historical records of Islamic societies.
A Review of how customary law, religious law and state law relate to the concept of Zina.(Cite: Al-Ashmawi, M.S. 2004. Usul al-sharia (The Principles of Sharia). 5th ed. Beirut: Al-hintasar as-Arabi.)
Customary law
Most customary laws of Islam promote stern action against the concept of Zina. In truth, laws of Zina bear a religious background that has been in existence since ancient times, prohibitions of adultery and fornication in part draw a lot from traditional cultural practices. However, in light of recent legal trends in documentation, they are termed by different sections of people as having a predominant discriminatory nature underneath the concept of adultery. Apart from Islam, the Jewish laws of ‘Moses’ describe adultery as sexual relations between a man and a married woman and not a woman and a married man. More so, penalty for Zina tends to be directed more to the woman involved and not the male partner (cite "And the man that committed adultery with another man's wife, even he that committed adultery with his neighbor’s wife, the adulterer and the adulteress shall surely be put to death." (Lev. 20:10).
). Such matters of interpretation have also been brought to light in past and current times for exhaustive discussions
There has been a battle of conflict between international human rights law and customary laws, which are still held as paramount in the minds of people in many stern Muslim societies and countries. The customary laws are still regarded as part of religious discourse. This poses a huge challenge for the adoption of international laws by these communities whose context is dictated by the customary and traditional figh- in which legal rulings are influenced by customary practices and particular codes of human behavior. Even so, the dedicated Muslim communities seem to have an upper hand as far as the future of the practice of law in their respective societies is concerned, mostly because the Zina laws are categorized as Hudud (Godly), a potentially all-sufficient ground for argument against reforms contrary to Islam in its true form. In addition, an in depth look reveals that the more pressure put on Islam communities to adopt Western reforms, the more the Islamist rally for the return to Shari’ a laws. (cite: Dembour, M.B 2001.Following the movement of a pendulum: Between Universalism and Relativism. In Cowan, J., Dembour, M.B.,., Wilson, R. (Ed). Culture and Rights: Anthropological Perspectives. Cambridge University Press. P56-79.)
It is no doubt that women organizations and other support social groups remain concerned such that they constantly fight against and criticize most customary laws of Zina advocating for change of the laws perceived as discriminatory against women
A major element of controversy that exists in Islamic customary law involves the revival of Qisas laws. These allow members of the society to partake in ‘Crimes of honor’, which include but are not limited to deliberate killing of a female family member who has engaged in illicit sexual misconduct while the slayer gets away with only a few years imprisonment at most. (cite: Welchman, L. 2007. Honor and violence against Women in Modern Shar’ia Discourse. Hawwa: Journal of Women in the Middle East and the Islamic World 5(2-3).p.165-247.
State law
in many African and Asian countries where Islamic law finds relevance, statutes in state law that determine and define criminal liability with a clearly stated penal code do not include clauses of customary law in cases of Zina. In fact, for most African countries, the legal systems do not allow for prosecution and punishment for sexual religious offenses by law aside from provisions of state law or other existing acts in force as part of laws of the land. However, provisions entrenched in law to allow for execution of Shari’ a penal codes are executed fully and both the prosecution and defense sides in a case draw hugely from Islamic provisions of customary law. In such an instance, the prosecution side is required to first to prove that the accused are or is indeed a Muslim. The prosecution is then required to go ahead and prove that the accused is or is guilty of partaking in illicit sexual activities with concrete evidence to support the case. If proven guilty, the accused face charges of Zina or adultery according to provisions of the Shari’ a laws, which state the crime of Zina as "whoever, being a man or woman fully responsible, has sexual intercourse through the genital of a person over whom she has no sexual rights and in circumstances in which no doubt exist as to the illegality of the act, is guilty of the offence of Zina" (insert subscript to indicate Katsina State Shari’ a Penal Code law 2 of 2001- Nigeria country). (Cite: Menski, Werner 2006. Comparative Law in a Global Context: The Legal Systems of Asia and Africa. Cambridge University Press.)
The 20th century witnessed the emergence of modern and somehow liberal legal systems in all nations around the world that bore a contemporary viewpoint. even Islamic societies shifted focus to a more personal level aside from the traditional communal or societal approach.(cite: Abu ayd, N.H. 2001. The Quranic Concept of justice, Polylog: Forum for International Philosophy. Available online at http://them.polylog.org/3/fan-en.html )
The Zina laws became obsolete in practice but the renaissance of Islam with a political backing in late 20th century resulted in the opposite; the laws were revived once again in different extents varying from community to community but bearing significance in most of them with characteristics of violence against women and girls.
Countries like Pakistan, Nigeria, Iran and most recently Syria have been hit the hardest with this recent emphasis on Zina laws that sternly criminalize illicit sexual activity among members of specified Muslim societies within these countries.
Activists and independent social groups are working to implore the governments of affected countries to do away with the laws that allegedly infringe greatly on rights of women and girls.
State laws have surpassed the concept of Zina in instances of the Islamic described Qisas or retribution. This describe a scenario whereby a person offends another by bodily harm or murder; even if crimes of sexual nature were conducted in the process, the jurisdiction falls under state laws and not the customary sani laws. Such offenses fall under the category of private matters that do not encompass the involvement of the larger society. Under this arrangement or leg...