Masculinity as a term of Judgment; a comparative study between Islam, Common Law and Civil Law legal systems
By: Assistant Professor Abdul Qahar Azizi
Abstract
Judgment is the fundamental legal method of conflict resolution. It is widely regarded as the best recourse for healing disputes and disagreements in the three following legal systems: Islam, Common Law, and Civil Law. One characteristic of debatable necessity for the proper execution of judgment is that of masculinity.
Islamic scholars have three main ideas regarding masculinity. The majority of scholars consider masculinity an indispensable. Conversely, Ibn Jareer Tabari opines that the masculine is not required as a condition of proper judgment in any case. Hanafi scholars, taking a more centrist view, state that masculinity is only necessary in judging fixed crimes, which under Hodod include such acts as adultery, robbery, the drinking of wine, the false accusation of a man or woman for adultery, and under Qisas deliberate murder; however, the ruler is considered guilty as he appoints a woman as judge.
Women living in under Common Law are generally given their rights by living and passing time in the legal system. Women living under Civil Law, on the other hand, have also received more rights, but on a step-by-step basis. In comparing the two systems, it is interesting to note that, to date, more women have been hired as judges in Civil Law countries than in countries that follow Common Law. There is no documented bill to prove that women were banned from being judges while men were allowed the privilege, but rather both genders have had the opportunity to fill judicial roles. This paper has been written in analytical-descriptive method and is library based. Several books, laws, papers and internet sources have been synthesized to construct the following research, and references following the in-context method are included.