Sayed Sikandar Shah Haneef

Sex reassignment technology: the dilemma of transsexuals in Islam and Christianity.

The birth of people with confused or ambiguous sex makeup as a biological fact since the annals of history has posed the challenge of accommodating them within the binary gender of sociocultural systems. In this process, the role of religion as a defining factor in social engineering has been paramount. Major religions, such as Islam and Christianity, have addressed this issue within the frame of their God-ordained laws by devising a set of moral and legal imperatives specific to the “third gender.” Modern developments in medicine and biology, however, have made sex reassignment possible for this category of people, today called transsexuals. The question is: How do Islam and Christianity respond to it. After presenting an analytical view of both Muslim scholars and Christian religious authorities on the legitimacy of sex reassignment for transsexuals, this paper attempts to explore if such a dilemma can be resolved.

Discourse on Hudud in Malaysia: addressing the missing dimension

Much has been written on the issue of applicability of hudud law in Malaysia. But, by and large, the discourse revolves around its feasibility or otherwise in the context of the existing legal framework at the behest of local academia as well as politician. Little attention has been paid to the question of the type and model of hudud that is going to be codified. This study argues that the discourse on hudud would not be complete unless hard questions surrounding its substance and practical procedures are judiciously disposed.

Debate on methodology of renewing Muslim Law: a search for a synthetic approach

Islamic law as a sum total of juristic views believed and practiced by Muslims, by and large, is locked in interpretations made by legal scholars of the medieval ages. To relate it to contemporary needs of the Ummah, Muslim thinkers have been entangled with the question of its renewal for the past two centuries. In this pursuit, the thorniest question has surrounded the methodology of accomplishing such a renewal. This has given rise to three main trends, namely traditionalist, liberal and middle of the road approaches to the renewal of Islamic law. This paper, however, argues that rejuvenating Muslim religious law requires a synthetic method rather than a bigoted exclusivist approach as advocated by the proponents of renewal in our time.

The status of an illegitimate child in Islamic law: a critical analysis of DNA paternity test

The use of DNA test to determine the paternity of a child is a controversial issue in Islamic law. Although vast majority of legal scholars pragmatically concede its use as a means of connecting unidentifiable children or dead bodies to their next of kin, they oppose its use to ascribe the paternity of children born out of illicit sexual intercourse to the male parties involved. Consequently, such an illegitimate child is a liability on the female partner in terms of raising and supporting. The conventional logic for such a lopsided application of child’s paternity was that in the case of female partner, it is easy to ascertain that such a child is her biological progeny but establishing such a de facto connection of the child to her male partner is impossible to obtain. Accordingly, practical option for the naïve even curious but sexually active female member to thwart the stigma and burden of giving birth to such children, has been either abortion or baby dumping (Statistics show that there were 417 baby dumping cases recorded nationwide between 2009 and September 2013. See more at: http://www.theantdaily.com/Main/Baby-dumping-cases-turn ing-into-an-epidemic-in-Malaysia#sthash.fpHHoWGk.dpuf.). This paper, however, argues that in the age of scientific technology invoking the conventional wisdom of non-traceability of male partner in a sexual act no longer holds true. Accordingly, biologically connecting ill-conceived babies to male partners, in the context of present Muslim societies, goes a long way in protecting women and children.

Islamic Jurisprudence on Reproductive Technology: A Methodological Appraisal

Reproductive medical technology commonly known as assisted reproductive technology (ART) has revolutionized the natural order of human procreation. It is often called as one of the facets within the wide range of the new millennial technological development. Globally some have celebrated its advent as a new determinant of the kinship and librating, while others have frowned upon it as a vehicle for “guiltless enjoyment of sex.” The Islamic position, by and large, is represented by Sunni-Shia dichotomy with immense implications in terms of ethical dilemmas which it entails for common folks, regardless of their sects. The main problem from a juristic standpoint with the permissive stand is that it fails to evaluate their use against the background of Islam’s insistence on the principles of kinship, sexual propriety, and social cohesiveness for building a family. This study, therefore, proposes that the fault line is one of the methodologies. To remedy the situation, this study aims to examine the issues from a macro perspective of sexual purity, family cohesiveness, and family well-being. To accomplish this objective, it uses qualitative content analysis method to assess the relevant prevailing legal rulings and juristic opinions about some of the most commonly debated reproductive technologies. In the final analysis the study concludes that the juristic crave to prove that Islamic law is capable of adjusting to technological innovations if not guided by larger consideration of kinship cohesiveness, uncompromising Islamic notion of sexual purity and moral well-being of the family, a sexual human procreation may become a norm even if it is not necessary or medically warranted.

Treatment of Recalcitrant Wife in Islamic Law: The Need for a Purposive Juridical Construct

Abstract Islamic law dealing with the issue of the scriptural treatment of a recalcitrant wife (nushuz) as detailed by both exegetes and classical jurists has emerged as one of the much debated topics in readings on Muslim women in our time. Some go the feminist way; others tend to be reformists while the vast majority remain traditionalists. Ironically, however, all these advocates, by and large, have one thing in common, namely they are locked in the traditional literal methodology of legal construction. This study, however, calls for taking the discourse beyond the confines of literalistic polemics to that of purposive methodology and analytical legislative constructs. It concludes that the three-stage procedures of disciplining a recalcitrant wife as legislated by the Qur`an, is intended to mitigate the harsh treatment of such wives in socio-cultural conditions in which wife-battering was normal. To literally adopt such a procedure for restoring the relationship of marriage at present time instead of repairing marital discord, will further ruptures it; thus it is against the end-goal of the law on nushuz.

Women and Malaysian Islamic family law: towards a women-affirming jurisprudential reform

Codification of Islamic family law has been one of the most effective recent ways of administering Islamic law. It is obviously due to its many advantages, including making the law certain, uniform and supposedly in tandem with the current needs of society in a modern setting, particularly in solving issues facing Muslim women in contemporary families. Nevertheless, according to critics, this legislative measure has not been free of pitfalls and loopholes, which have worked against womens welfare in many ways. In the Malaysian context, for examples, the most prominent allegation is the gender-bias feature of certain provisions of the applicable law. To remedy the situation, given the cultural sensitivity and moorings of different interest groups in the country, the approaches have been diverse. But by looking at the issue from a purely academic, nonpartisan perspective, one would assume that the problem is rooted in the way that the legislature has construed fiqh and codified it in the form of the existing statutes. In this paper, therefore, I attempt to explore analytically to what to undo in the existing laws in order to make them more robust, effective and responsive to the need of Muslim women in the twenty-first century.

Women and Malaysian Islamic Family Law: exploring the gender sensitive path of jurisprudential reform

Modern Islamic family laws in the form of statutory codified fiqh, dated back to Ottoman Law of Family Rights 1917, supposedly was initiated with the prime purpose of overcoming certain juristic doctrines disfavoring women. Nevertheless, from the female perspective, such a state-sponsored approach has failed to ameliorate the conditions of women the world over on many aspects including methodological grounds, in spite of some progress towards such an end. The same assertions are made against various state Islamic family law enactments in the Malaysian context. To remedy the situation, given the cultural sensitivity and moorings of different interest groups in the country, the approaches have been diverse. Examining the issue from a purely academic, nonpartisan jurisprudential perspective also points to serious problems of methodology alongside with attitudinal ones. This paper argues that a paradigm shift from the current school-bound cum eclectic approach to that of gender sensitive jurisprudential choice of the juridical views would be an alternative way to reform the law.