Sexual Ethics in Islam (13 page)

The issue of female captives and their treatment cannot always be ignored in such a glaringly obvious way. When directly confronted, in a polemical context, with historical and textual permission for the sexual use of unfree women, Muslim authors sometimes respond defensively, seeking to protect Islam’s repu- tation. It may be argued, for instance, that Islamic “slavery” bore no resemblance to harsh American chattel slavery. In this view, the Qur’anic permission for men to have sex with “what their right hands possess” was merely a way of integrating war cap- tives into society. Sometimes, it is added that the captives would be“integrated” into the Muslim community through becoming the property of a specific man who would be responsible for them and their offspring. Whatever merit these arguments have in the context of inter-communal polemics and apologetics, however, they are insufficient for internal Muslim reflection. In particular, the notion that women would be integrated into society by bearing offspring to their owners or captors does not apply to the case of the Bani Mustaliq: the rationale for the cap- tors to practice withdrawal, according to other accounts, is that they did not want to impregnate the women lest they spoil their chances to ransom them.
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This provision of a rationale incompatible with the sce- narios represented in the historical sources is one instance of a

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larger phenomenon of attempting to make sense of instances where Prophetic
sunnah
, classical jurisprudence, and modern notions clash. Attempting to assess an event such as the capture of women from the Bani Mustaliq (assuming one accepts the historical record as provided by Bukhari’s account) by the standards even of later jurisprudence causes difficulties as “some traditions ascribe to the Prophet actions that appear to be incompatible with the opinion prevalent in later sources.”
39
How can one reconcile Abu Sa‘id al-Khudri’s account, for example, with the later insistence of Muslim jurists that any time a man came into possession of a captive or slave, he had to wait until she had a menstrual period before having intercourse with her, in order to determine whether she was already pregnant?
40
The Prophet’s reported permission for the Muslim captors to practice withdrawal with their female captives does not take any notice of this point. It has been suggested that the fact that the Prophet’s reported action does not take account of the need for a waiting period is evidence that Abu Sa‘id al-Khudri’s account is wrong; the Prophet could not have allowed the men sexual access to the captives. This apologetic account seeking to deflect the accusation of impropriety makes the error of assuming that later legal doctrine cannot impose a requirement that was not grounded in the Prophet’s actions. As an historical point, just because the jurists required something does not mean that the Prophet did it; likewise, just because the jurists allow something does not mean the Prophet did. Still, another hadith included by Abu Dawud in his Book of Marriage records the purported words of the Prophet in asserting that men must wait to have sex with captive women until they have menstruated once, and still others forbid men to have sex with women pregnant by other men. A similar issue arises regarding the religion of the captive women, who were likely to be from among the pagan Arabs. Later jurists state quite clearly that only Christian and Jewish (and perhaps Sabean or Zoroastrian) captives or slaves were permissible as sexual partners.

Nonetheless, questions about the religious affiliation and menstrual status of the female prisoners pale in comparison to the larger issue at stake: what does it mean for those who view

“what your right hands possess” 51

the Prophet’s actions as exemplary to accept that he tacitly allowed the rape of female captives? Is it correct to refer to the actions of the Muslim soldiers as rape, or does that term have connotations that are contextually inappropriate? Does the fact that “marriage” by capture was a common Arab custom at the time make his actions intelligible? Acceptable? Finally, assuming one accepts that the accounts in Bukhari, Muslim, and other hadith compilations are essentially accurate, what are the impli- cations of the Prophet’s action for the contemporary world? Is his precedent binding or is it to be understood as limited to the particular circumstances of his time and place?

There is general silence on these questions and their broader implications in Muslim scholarship. Algosaibi mentions the incident in passing, under the title“Family Planning,”without any analysis or acknowledgement of its signifi e for matters beyond contraception. Other influential works treat the issues of slavery differently, but no more satisfactorily. For instance, in his 1991 translation of the classic Shafi work
Reliance of the Traveller
, Nuh Keller excises nearly all mention of slavery from the English text, leaving it, bracketed off, in the parallel Arabic discussions of marriage, divorce, and other social transactions.
41
The translation carries no ellipses or notation that something has been removed. As a result of this editorial sleight of hand, the importance of slavery to the medieval Middle Eastern context in which this text originated simply disappears. By way of rationale for these frequent changes, Keller affirms in his introduction that “Not a single omission has been made from it” – that is, the Arabic text – “though rulings about matters now rare or non-existent have been left untranslated unless interesting for some other reason.”
42
A specifi reference to the missing material on slavery comes in place of a translation of the chapter on manumission:“Like previ- ous references to slaves, the following four sections have been left untranslated because the issue is no longer current.”
4
3
Keller thus suggests that the regulations on slavery, a now obsolete social institution, are somehow separable from the rest of the work; the other rules contained in this “Classic Manual of Islamic Sacred Law,” as the translation’s subtitle proclaims, are directly relevant to the lives of contemporary Muslims.

52 sexual ethics and islam

A different approach, utilized by the official Saudi fatwa council as well as some other twentieth- and twenty-first- century jurists, has been to reiterate classical doctrines as though slavery had never been abolished by national governments. In their responses to legal queries – which have influence far beyond Saudi boundaries, through online distribution and sub- sidized translations into European languages – they maintain references to slavery throughout, just as their medieval counter- parts would have. Evaluating the conditions making polygamy permissible, the late Saudi mufti Ibn Baz stated that “If a person fears that he will not do justice [between wives], then he may only marry one wife in addition to having slaves.”
44
Though seemingly the opposite of Keller’s strategy of excision, this rote inclusion of material presuming the existence of slavery (even when slavery was not even mentioned in the original question) demonstrates the same unwillingness to engage with the basic problem at hand: how does one reconcile the presumption of slaveholding in Qur’an, hadith, and classical jurisprudence with the contemporary reality of the Muslim world where legal slav- ery no longer exists? Although the vast majority of Muslims do not consider slavery, especially slave concubinage, to be accept- able practices for the modern world, the reticence to confront the juristic, as well as social, legacies of slavery has resulted in blindness to the hierarchical residue of its practice to Islamic gender relations more broadly, and to marriage and sexual rela- tions in particular.

Conclusion

I have repeatedly referred to the scriptural and legal acceptance of slavery as something troublesome to the vast majority of con- temporary Muslims, when it is thought about at all. Because of the repugnance with which slavery is viewed, arguing that other matters are linked with, or analogous to, slavery creates an open- ing for Muslims to think differently about them. I claim no ori- ginality for this tactic; Fazlur Rahman applied it to good effect at least two decades prior to this writing, when he compared

“what your right hands possess” 53

slavery to polygamy.
45
Both, he argued, were institutions that it was impossible to eradicate at once but which were harmful and which God intended to abolish, even if one had to follow indica- tions of a trajectory toward abolition in the Qur’an rather than its literal words. Treating the Qur’an as a document with some verses bound by context, but others containing broad principles of justice that should take precedence over specific, time-bound commands, is one essential element of feminist and other reformist interpretation of scripture. For many ordinary Mus- lims, particularly those for whom slavery is distant history, it is simple common sense. This should not, however, be mistaken for the view that it is “obvious” that Islam disallows slavery, and that it was always meant to be abolished.
46
The insight is more powerful if one acknowledges that abolition was not a forgone conclusion, but rather the result of both non-religious historical processes and interpretive choices by individuals. Indeed, even today some scholars insist that although the specific circum- stances making slavery permissible may have ceased to exist – i.e., there is no legitimate caliph to declare jihad and divide the spoils of war, or that Muslim nations have signed international treaties agreeing to prohibit slavery – that it is nonetheless unac- ceptable to declare slavery forbidden. To do so, they argue, constitutes a sin, because one is declaring unlawful something permitted by God.

Muslim thinkers who reject slavery as unjust have applied two main methods to argue that this rejection of slavery is based in the Qur’an. First, some suggest that the abolition of slavery is implicit in the Qur’anic message, and Muslims simply did not see it before, being blinded by their social circumstances. Mohamed Syed’s stance that sex with captive or unfree women was always forbidden without marriage, and that legal per- mission for sex with
milk al-yamin
was the result of the jurists’ misinterpretation, applies this perspective on a smaller scale.
47
Second, developing Rahman’s methodology, others have argued for a trajectory from hierarchical institutions to more egalitarian ones, from acceptance of slavery to its abolition: the practical limitations of the Prophet’s mission meant that acquiescence to slave ownership was necessary, though distasteful, but meant to

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be temporary. Fatima Mernissi makes a parallel argument that the Prophet’s compromises regarding husbands’ rights to con- trol their wives were similarly necessary accommodations with patriarchal power in the interests of ensuring the success of Islam.
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Both perspectives contain valid points: the presuppos- itions of interpreters matter a great deal in implementation (or lack thereof) of the Qur’an’s precepts; and there is evidence that in some instances the Qur’an accommodates or gradually pro- hibits certain practices that God and/or Muhammad might have preferred to abolish immediately (e.g., consumption of alco- hol). However, neither of these approaches is sufficient if one does not take the responsibility of individual interpreters seriously.

An approach to revelation that takes both propositions seriously allows one to interpret scripture without being bound by the assumptions of previous generations of exegetes who accepted male superiority and other social hierarchies, includ- ing slavery, without question. Additionally, one can see certain passages and Prophetic
sunnah
s as gestures in the direction of egalitarianism, capable of full realization only in a world where equality and freedom are common shared values. Yet neither of these approaches engages the critical, and critically difficult, question: where is God’s justice in permitting slavery in the first place, if slavery constituted an injustice and a wrong in the seventh century, just as it would and does in the twenty-first cen- tury? And if it did not constitute an injustice and a wrong in the seventh century in God’s eyes, then on what basis may anyone subsequently declare it unjust without rendering divine justice subordinate to the vagaries of human, and therefore inherently flawed, moral sensibilities?

A full consideration of questions about God, history, and justice would require delving further into philosophy and theodicy than I dare attempt; these issues have preoccupied many generations of theologians and I make no pretense of resolving them here. I raise them, though, because although generally omitted from feminist reflections on Qur’an,
sunnah
, and law, these theological questions are deeply relevant to larger issues of ethical definition.
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How can one reconcile God’s

“what your right hands possess” 55

justice and goodness with the injustice of slavery, or does view- ing God as just and good necessitate acceptance of slavery as part of the divine plan for humanity? To my mind, a proper response involves two propositions, each of which places a great deal of responsibility on individual Muslims. First is the view that while God is responsible for the just and the good, and guides human beings accordingly, injustice and oppression (
zulm
) come from human beings; imperfection is inevitable once one accepts the complicated possibility of human free will.
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Second is the dis- tinction noted by theologians between legal justice, where human beings are “commanded to observe a minimum standard of duties,”and ethical justice, which“is justice in accord- ance with the highest virtues which establish a standard of human conduct.”
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Combined with the view that historical developments render certain specific regulations irrelevant, these notions make reform more attainable at the same time as they place a greater burden on human beings to achieve it. God clearly orders Muslims in the Qur’an to combat injustice and oppression yet simultaneously permits institutions such as slav- ery. Outside of accepting that slavery is a just and therefore not problematic practice (or insisting, against the clear sense of the text, that the Qur’an never actually allowed it), the only possible response is to suggest that the Qur’anic text itself requires Mus- lims to sometimes depart from its literal provisions in order to establish justice.