LAWS818 Research Methodologies In LAw

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Question:

Students select and design a research methodology (or multiple methodologies) to complete a project about any topic of law. Then, they present and explain their chosen topic.

Answer:

This research examines the concept and issues surrounding abortion in Islamic Jurisprudence.

Multiple researches show that thousands of women living in countries that restrict abortion practice often have unsafe and hidden abortions. This can lead to serious consequences for their lives.

The increasing number of unsafe and hidden abortions has become a serious public health concern.

The Islamic jurisprudence includes abortion laws. This has been a matter of great concern for religious and scientific communities. It has now reached the medical society realm.

This research examines the perspectives of Islamic law’s various schools regarding abortion and the related laws.

Background of The Study

According to Islamic laws, traditional families are given the greatest importance. It is believed that traditional families encourage procreation.

Children and marriage are considered a gift from God and are depicted in the Quran, the holy text of Islam as ‘decoration and life’.

Although the Quran does provide some relief for moral problems, including those related to adoption, Muslims must follow the teachings of the Prophet Muhammad.

The Hadith may provide different interpretations. In such cases, the Muslims adhere to the principles of ijtihad.

If abortion is dangerous to the mother’s health, it is illegal in Islam.

If the pregnancy threatens her life or causes serious harm, the mother may have an abortion.

Quranic verses say that it is against the law to violate another person’s life at any stage of their lives. However, abortions that cause death to the mother are allowed.

The reason for this exception is that the fetus is dependent on its mother and cannot cause death to her.

Because the life and health of the mother is more secure than that of the unborn baby, they must be given priority over the uncertain life of their child.

The decision to allow abortion to save the mother’s health is based on the principle that it is better not to do more harm than to accept less.

Background of Islamic Schools

There is disagreement among contemporary scholars about the laws concerning abortion.

Hanfite jurisprudence authorizes abortion after 120 days have passed since conception.

This school of Islamic law allows a mother to have an abortion prior to the inspiration of her soul.

These teachings are flexible regarding abortion laws.

This school of legal thought allows abortion within 120 days of conception if the pregnancy causes death or severe harm to a mother.

The Maliki School bans abortion.

This school does not allow for abortion to be considered legal or acceptable.

The Hanbalite School of Law forbids abortion after the 40th day of pregnancy.

The Zahirites School of law bans all forms of abortion. They do not accept exceptions unless they are dangerous to the mother’s health.

The Islamic schools of the past believed that abortion was illegal (haram), after 120 day, even if it causes the death of the mother.

The reason is that jurists believed that the foetus is still alive and that killing it would violate the law because it is not known if the pregnancy will cause the mother’s death.

Accordingly, it is against the law to kill a person based on assumptions.

The mother can have abortion if she is certain of her death and the pregnancy is not terminated.

All schools of legal thought allow abortion before the inspiration or soul provided both parents or the couple consent.

The Islamic Fiqh Academy of Muslim World League has a council of religious scholars who believe that abortion must be prohibited after 120 days of gestation.

The Study’s Justification

The legality and permissibility for abortion are greatly affected by the gestational period of the mother and her specific circumstances.

The laws that govern abortion vary from one country to another. It all depends on whether the country follows Islamic law only or the combined Islamic and civil laws.

Egypt is a Muslim-majority nation. Abortion is forbidden in Egypt under any circumstance according to the Egyptian Penal Code 37.

The criminal law allows abortion if the mother is in imminent danger or medical experts confirm the deformation.

However, the medical panel must confirm that abortion is required and is performed according to law.

Some religious scholars consider the growing acceptance of abortion in Muslim-majority countries to be a sign that people have drifted from the faith’s teachings.

Certain religious leaders have issued fatwa that requires anyone who has an abortion to be paid for.

A fatwa is issued to Egypt in cases where abortion is necessary because the fetus is raped.

Some scholars have criticised the fatwa being issued, believing that it violated their holy book, which prohibits the killing innocent persons.

Because fatwa bans abortion, it encourages killing innocent peoples. Therefore, it should be banned.

Despite legal and religious restrictions that ban abortion in Muslim countries, there has been an increase in abortion rates in these countries due to changes in economic and social values.

This study will analyze the effect of Islamic religion on abortion laws, and the justification for human rights with respect of the right of life of the fetus.

Sharia Law Regarding Legalization Of Abortion

The Islamic jurisprudence regards human life as sacred. Therefore, no one is permitted to kill or endanger any person’s life.

Globally, the right of a fetus to live has been a significant concern under sharia law.

Abortion means that the unborn child is killed in the womb while it is developing. This directly relates to the rights to life of the child.

A person who is not in the process or development of life can be killed by abortion, according to Islamic laws.

However, jurists differ on when and how the woman may have an abortion.

The teachings of the Sharia law state that the protection of man’s life extends to the embryo. This protection does not only apply to the post-natal period.

Therefore, abortion, which is the act of killing an embryo, can be considered a crime.

According to Quranic verses the creation of humankind was based on the union two primary cells. Any attempt to destroy one of these cells at any stage would result in the loss of human life.

The Islamic law does not allow abortion to be used as a way of controlling the birth rate, except in very limited circumstances.

But, this doesn’t mean that Islamic law does not support birth control measures. If a woman becomes pregnant, parents cannot terminate the life or the health of the fetus unless the pregnancy is a danger to the mother’s life.

Islamic jurisprudence holds that allowing the fetus develop and be born alive is an act of respect for the right.

However, some scholars agree that abortion is allowed if the pregnancy puts the life of the mother at risk.

Because abortion laws are not mentioned in the Quran and are not incorporated into the Quran, the rulings made by the Prophet are the primary source of Islamic Islamic law.

The rulings of Prophet are often used by Muslim scholars to form opinions or pass verdicts in Islamic jurisprudence related to abortion.

Human Rights Regarding Abortion Laws

Human Rights law recognizes that the right of life is one of the fundamental rights conferred on individuals at birth.

This fundamental right to life is available to all people. The states that are parties to international human rights agreements must ensure that this right is not denied to anyone.

A major concern is the practice of abortion. This is due to the increasing rate of abortion and the inability to obtain contraceptive drugs.

The prenatal protections of women must conform to the human rights of the woman. This has been confirmed by international and regional human right bodies as well as the courts.

A significant threat to human rights has emerged around the right to life prior to birth, particularly from conception.

These attempts, often rooted in religious motives, usually deny women adequate reproductive services that are fundamental to ensure their health, life, dignity, equality, and other human rights.

These measures grant life to the fetus prior to its birth and are considered equal to the rights granted to women.

These attempts may sometimes lead to the prohibition of termination of a pregnancy. In some cases, they can also result in women being denied the right to make decisions about fertility on their own.

Influence of religious beliefs on abortion

Laws relating to abortion are often influenced in part by differing religions. These religions may have different views and not all agree on whether abortion is legal or not.

My belief is that religion is a belief that some people hold onto and that one should not be able to force those beliefs upon others.

While abortion is considered imprudent in all parts of the world, it should be allowed when the continuation of pregnancy threatens the life and health of the mother.

The decisions regarding abortion are influenced by religion. It places people in a difficult position between medical and religious beliefs.

Women resort to unsafe abortion to protect their religious beliefs and avoid social stigma.

Sharia Law teaches that termination of the human life is prohibited after 120 days.

However, the Shafi Jurist allows the mother to have an abortion within 80 days. The Hanabli School law approves abortion if performed within 40 days.

The international and regional human right treaties that protect the right of life are able to provide evidence and a description about the moment when life begins.

Below is a list of International Human Rights, which aim at protecting the rights to life.

Universal Declaration of Human Rights – Article 1 of UNDHR’s Universal Declaration of Human Rights states that all humans are born free of charge and have equal dignity and rights.

This principle signifies that all Declarations rights are implicit from birth.

International Covenant on Civil and Political Rights – This covenant discredits the notion that the right to live extends its protection beyond prenatal life.

The Human Rights Committee, which acts in accordance with the ICCPR, reaffirms the principle that the right of life is an inherent human right that is granted to all humans from conception. This law extends protection for such rights.

The treaty provision shall be void if restrictive abortion laws force pregnant women to use unsafe abortions, putting their lives at risk.

Covenant on the elimination of all forms of discrimination against women (CEDAW). This Convention says that the fundamental principles and principles of equality and non-discrimination demand that the rights for a pregnant woman be respected above the unborn fetus’s interests.

Convention said that restrictive abortion laws could violate women’s right to health and their life.

The Islamic jurisprudence however, states that the right to life of the baby begins before the birth. Therefore, parents are prohibited from aborting the child or any other act that could cause his death.

Islamic law grants the fetus a special status and protection.

This legal recognition derives from the concept called dhimmah.

If both parents consent, the child’s parents may have an abortion. However, abortion can not be performed without the consent of one of the parents.

The mother who consents to an abortion will be fined and held accountable for her actions.

If the mother refuses to consent, the father of her child cannot force her to have an abortion. She will be held responsible.

The assertions made by the International Human Rights Conventions (and the Human Rights Committee) regarding the priority for the Mother’s rights over the interests of the baby’s is just and reasonable.

The mother bore the child so if the pregnancy puts the mother’s life at risk, it is only fair that termination is ordered.

The rights of the unborn child shall not be overruled by the rights of the mother, especially if the pregnancy leads to death or serious injury to her mental and physical health.

The above discussion shows that it is quite easy to establish the current state of pregnancy right at the beginning.

While the Islamic or Sharia law recognizes abortion when it puts the mother in danger, there is no consensus on abortion laws because they are different in each country.

My opinion is that Islamic Jurisprudence must adopt liberal abortion laws, giving priority to the mother’s welfare, and not prohibiting her from ending a pregnancy that would endanger her life.

Research Method Outline

I have used secondary data from several journals and books to outline the research.

Research Purpose

You have three options for the purpose of your research. There are descriptive, exploratory, or explanatory.

Because this form of purpose provides more information and exploration, the descriptive purpose was chosen for this research.

It allows researchers to add additional information to the research topic.

In order to gather the required data and investigate this whole research project, the researcher has used many books and journals, online and offline.

Sources of data

For their research, there are two sources of data: primary and secondary.

Secondary data has been gathered from various journals and books.

Data analysis technique can include both quantitative and qualitative techniques.

To conduct research on the selected topic, the researcher has chosen qualitative data analysis technique.

Refer to

Al-Matary. Abdulrahman. Jaffar Ali.

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BMC medical ethics 15.1 (2014).

Ardestani and Abass Shafei. Mahdi Khaghani Efahani. Seyed Mohammd Mussieni.

“Abortion from the Perspectives of Different Religions”

Human rights: Universality in practice.

Acting on Conscience: What Can We Do to Responsibly Combine Law, Religion, and Politics?

Univ.

A brief introduction to human rights.

OUP Oxford 2015.

Cook, Rebecca J. Joanna N. Erdman, Bernard M. Dickens and Bernard M. Dickens, edited.

The transnational perspective of abortion law: cases, controversies.

University of Pennsylvania Press. 2014.

“Gender Stereotyping In International Law: The Struggle for the Realisation of Women’s Reproductive Health Rights.”

Griffith Journal of Law & Human Dignity 4.2 (2016).

Finer, Louise, Johanna B.

“Abortion law in the world: progress and opposition.”

American journal for public health 103.4 (2013): 585-589.

Harris, O’Boyle & Warbrick – Law of the European convention for human rights.

Oxford University Press USA, 2014.

“Violent extremism: An overview in Australia”

Trends & Issues in Crime & Criminal Justice 491, 2017

The ethics behind abortion: Women’s rights and human life.

“Intended as well as unintended consequences for abortion law reform: Perspectives of abortion specialists in Victoria, Australia.”

Journal of Family Planning and Reproductive Health Care 43.1 (2018): 18-24.

“Queensland Abortion Laws, Criminalizing One in Three Women.”

QUT L.Rev.

“Advancing Sexual Health through Human Rights: The Role of the Law.”

Global public health 10.2 (2015), 252-267.

Mapp Susan C. Human rights, social justice and a global perspective: A guide to international social work.

Oxford University Press USA, 2014.

“Reproductive Justice, Public Policy and Abortion on the Basis of Fetal Impairment: Lessons from International Human Rights Law and the Potential Impact of the Convention on The Rights of Persons With Disabilities.”

JL & Health 28 (2015) : 121.

“Pious, critical and pious: Muslim women activists. The question of agency.”

Gender & Society 28.6 (2014) 824-846.

Shapiro Gilla K. Abortion law in Muslim-majority nations: A review of the Islamic discourse and policy implications

(2013). Health planning and policy. czt040.

Takhti, Fahime Khaonaki, Abas Ali Salihi.

“Evaluation abortion from the Islamic perspective and jurisprudence.”

International Journal of Physical and Social Sciences. 6.4 (2016). 1-6.

Human rights: Between idealism & realism.

OUP Oxford 2014.

World Health Organization.

“Safe abortion: technical guidance and policy direction for health systems: legal considerations and policy considerations.”

World Health Organization.

Guidelines and recommendations on ensuring the protection of human rights when contraceptive information is provided.

World Health Organization (2014)

World Health Organization.

Law, sexual health, and human rights.

World Health Organization (2015)

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