Sexual Ethics in Islam (4 page)

xx introduction

misogynist – why not bypass it entirely, and turn to the Qur’an alone as a guide? What is to be gained from focusing energy on analysis and critique of texts that I do not consider authorita- tive?
19
There are several possible answers to these questions. In part, the scholars are worth studying because of their method- ological sophistication, acceptance of divergent perspectives, and their diligence in the pursuit of understanding of the divine will. More obviously, they are worth analyzing because their frameworks and assumptions often undergird modern views in ways that are not fully recognized or understood.

For all of its flaws and insufficiencies, the Muslim intel- lectual and, especially, legal tradition provides significant ground for engagement on matters of ethics. Conventional wisdom in some circles has come to view “oral” Islam (which Ahmed equates to “women’s” Islam) as more compassionate and ethical than “textual” or “official” (“men’s”) Islam but this is an oversimplification. As Ahmed and others show, “official” or “textual” Islam is sometimes more protective of women’s rights than cultural practices that depart from the jurists’ rules. It is impossible to generalize about whether popular practices are more favorable to women than strict observance of doctrine, because so much depends on which women and which doctrine. In any case, the premodern legal texts dismissed by many contemporary thinkers as hopelessly patriarchal or narrowly legalistic are attuned to ethical considerations to a considerable extent, even though, on many matters of gender and sex, their authors’ ethical visions depart from those that I see as being in accordance with highest aspirations of the Qur’an. In part, this book is an attempt to demonstrate that constructive and critical engagement with the Islamic intellectual heritage can be important in providing a framework for renewed and invig- orated Muslim ethical thought.

The scholarly tradition is one significant source of knowledge and wisdom; much is lost when Muslims – Qur’an- only feminists or pro-hadith Salafis – choose to bypass it for a literalist approach to source texts.
20
Careful investigation of the legal tradition, for instance, demonstrates the ways in which authorities have, from the earliest years of Islam, used their own

introduction xxi

judgment and the customs of their societies to adapt Qur’anic and prophetic dictates to changed circumstances. It illustrates that some of the doctrines taken for granted as “Islamic” emerged at a particular time and place as the result of human interpretive endeavor and need not be binding for all time. Furthermore, the precedent of earlier jurists can authorize a similar interpretive and adaptive process for Muslims today, including bypassing (through a variety of interpretive devices) even seemingly clear Qur’anic statements. A legal methodology offers legitimacy for a flexible approach to the Qur’an and the Prophet’s
sunnah
as revelation that emerged in an historical context.
21

How does this discussion of jurisprudence and law relate to the issue of ethics? The word ethics does not have a precise equivalent in Arabic;
akhlaq
, the usual term, is better rendered as morals or character, and
adab
, a less frequently used alternative, is more appropriately translated as comportment.
22
Most of what falls under the rubric of ethics as understood in the modern West was the purview of the Muslim jurists, who addressed issues well beyond the scope of what is usually under- stood by “law.” As Jonathan Brockopp states, “Islamic ‘law’ is better characterized as an ethical system than a legal one. It does not merely separate action into categories of required and forbidden, but also includes intermediate categories of recommended, reprehensible, and indifferent.”
23
This five-fold classification scheme (
al-ahkam al-khamsa
) became standard among Muslim thinkers, although they often disagreed about where particular acts fell on the scale.
24
It allows for more nuanced categorizations than the simple “lawful/forbidden” (
halal/haram
) dichotomy – often equated to Islamic/un-Islamic

• that informs contemporary Muslim discourses.
  25
  The lawful/ forbidden dyad was, of course, relevant for premodern Muslim scholars, who warned against “making lawful what is forbidden and forbidding what is lawful,” but they generally engaged in a less categorical and more nuanced analysis of moral and immoral behavior.
  

  What does it mean to say that something is lawful or forbidden according to Islam (or Islamic law or
  shari‘a
  ) today?
  

  xxii introduction
  

  The relationship between enforceable duties and ethical obliga- tions has become increasingly blurred in a world where Islamic legal institutions no longer function in anything like the manner they did in the classical and medieval periods.
  26
  Even in the pre- modern Muslim world, the jurists’ doctrines did not find direct expression in the courts. Given these shifts, is Islamic jurispru- dence the necessary framework for resolving how to address issues of marriage, family, and sex? While some insist that the legal framework developed by Muslim jurists from approxi- mately 900–1400 CE must govern all Muslim behavior, the reality in the contemporary world is that the vast majority of social and economic transactions engaged in by Muslims, even in majority Muslim societies, do not strictly follow these legal precepts. Only on some matters of personal status do some majority-Muslim nations retain religiously based laws, and these differ widely from one country to another. In many cases, these post-colonial family laws also diverge sharply from the classical Islamic jurisprudence on which they are purportedly based. Among Muslim-minority populations in the nations of North America and Europe, moreover, Muslims are free to apply only those regulations that they choose, either writing them into contracts drafted to comply with applicable civil laws or entrust- ing compliance out of belief and conscience, just as in matters of religious practice.
  

  As an American, I am particularly concerned with the issues facing what British scholar Abdal-Hakim Murad refers to as “Muslims living in post-traditional contexts in the West.”
  27
  Living in a nation where Islamic law has no coercive power, regardless of its moral weight for individual believers, I write as one with the luxury of deciding whether and how to apply reli- gious doctrine in my own life – whether to arrange my affairs to follow the dictates of one or another school of jurisprudence, or the regulations in the Qur’an, or to follow civil law. The entirely voluntary nature of all types of religious observance means that the urgent questions for Muslims living under civil laws in North America and Europe in particular are ethical or moral rather than narrowly legal. At the same time, the fact that there are no putatively Islamic civil statutes involved means that those
  

  introduction xxiii
  

  Muslims concerned with Islamic law tend to focus on “authen- tic” texts, rather than national legal codes, making engagement with the tradition necessary.
  28
  

  Even in majority-Muslim societies, there has been a dra- matic shift over the past century in the role of the ‘ulama, who once held a monopoly on many forms of religious authority. Although the ‘ulama retain prominence in a variety of contexts, some of the most influential thinkers of the late nineteenth and especially twentieth centuries have come from outside this class, a tendency which seems likely to continue unabated in the twenty-first century. Basheer Nafi and Suha Taji-Farouki argue that reformist (
  salafi
  ) insistence on “the primacy of the founda- tional Islamic texts, the Qur’an and Sunna,” has been one import- ant factor in “the rupturing of traditional Islamic authority.” They suggest that “As the salafi idea of returning directly to the founding texts gradually displaced the assumption of the ulamatic traditions of learning as the necessary credentials for speaking on behalf of Islam, the Islamic cultural arena became wide open to an assortment of voices, reflecting new notions of authority.”
  29
  In theory, the processes Taji-Farouki and Nafi iden- tify could lead to inclusiveness. Yet as Khaled Abou El Fadl has shown
  ,
  the “new notions of authority,” far from opening up a democratic intellectual space, have tended toward authoritar- ianism, and a rigidification of debates.
  

  Four interconnected issues recur throughout this study. First, the discourse of Islamic authenticity has had a stifling effect on intra-Muslim debates about sex and sexuality. Second, the increasing gap between classical doctrines, present-day “values,” and actual sexual practices has led to questioning by some of the “don’t ask, don’t tell” model embedded in Islamic norms that allows for deviation in practice, provided certain ideals aren’t questioned. Third, the shift in values surrounding sex brings into relief the legal tradition’s systematic, though not necessarily intentional, devaluation of mutual consent as an ethico-religious value for sexual relationships and sexual acts. This classical model exists in tension with the stress on consent and mutuality in contemporary Muslim discourses on marriage and gender relations. Finally, and cutting across the previous
  

  xxiv introduction
  

  three items, I am concerned with structures of authority and the shifting and competing models of authoritativeness invoked by participants in contemporary debates over sexual ethics. I will address the first three items in a bit more detail, returning to questions of authority throughout the study.
  

  The continual framing of discussions over sex in terms of “Islamic-ness” is part of a broader flattening of moral argu- ment and thoughtful debate among Muslims. Kevin Reinhart has noted the shift among Muslims to talking about “Islam” as a source of authority rather than the Qur’an, God, the Prophet, or the scholars.
  30
  On the one hand, this shift may facilitate atten- tion to principles; on the other hand, it allows for the emergence of doctrinal authoritarianism. Abou El Fadl has presented a painstaking portrait of this authoritarianism, which he views as pervasive in contemporary Muslim discourse. While the pri- mary targets of his critique are the numerous conservative authorities who presume to speak for Islam – or rather, for God
  

• his arguments are equally relevant to those who advocate change. According to Abou El Fadl, those who would argue against the weight of inherited tradition have an obligation to make clear that they are doing so, even as they present their case for why an alternate position has more merit.
  31
  This requires acknowledging the extensive and diverse views of previous generations of thinkers, not just citation of isolated hadith or Qur’anic verses as if those texts were entirely dispositive of a particular point.
  

The issue of full disclosure is particularly relevant given the fundamental shift in conventional wisdom among many Muslims on issues of sexual morality and gender equality, mani- fested in particular in an emphasis on individual consent. Just to take one example, while the classical Muslim legal tradition uniformly accepted a father’s right to marry off his minor daughters (and sons) without consulting them, modern state- ments, including a recent Saudi fatwa, gloss over this consensus in favor of prophetic statements commanding that they be con- sulted.
32
For many Muslims born and raised in Western nations, the issue of consent emerges as well in discussions of sex outside marriage. The widespread acceptance of sex between

introduction xxv

consenting adults in the broader culture has led some Muslims to question the rationale behind Qur’anic, hadith, and legal pro- hibitions of such liaisons. The confusion over the issue arises in part because of the unfamiliarity of lay Muslims with the basic concepts structuring Islamic notions of lawful sex – my third point.

There is a mismatch between views of marriage and sexual intimacy as based in mutual consent and reciprocal desire and the entire structure of classical jurisprudential doctrines surrounding lawful sexuality. These doctrines viewed
milk
– that is, ownership, dominion, or control – as the basis for licit sex, whether it was within marriage,
milk al-nikah
, or slavery,
milk al-yamin
. The general disappearance of slavery in Muslim nations has meant, of course, that only sex within marriage is now considered lawful, to the point that some Muslim apologists refuse to acknowledge that slave concubinage was considered a perfectly lawful and normal institution for well over a millennium. Because slavery is no longer legally practiced in the Muslim world, many have assumed that the regulations surrounding slavery are irrelevant to contemporary discussions of Muslim marriage and family law; thus, discussions of legal texts make little reference to the jurists’ frequent treatment of questions involving slaves. Nonetheless, slavery remains con- ceptually central to the legal regulations surrounding marriage. The basic understanding of marriage as a relationship of owner- ship or control is predicated on an analogy to slavery at a fundamental level, and the discussion of wives and concubines together strengthens the conceptual relationship. These connec- tions tend to pass unremarked, however, and the lack of active grappling with the implications of abolition can lead to irony or even absurdity. For instance, an English translator of
Sahih Muslim
, one of the two most important Sunni hadith collec- tions, asserts that one finds “In Islam ... the absolute prohibition of every kind of extra-matrimonial connection” in his preface to a chapter (Marriage) containing several matter-of-fact refer- ences to Muslim men having sex with their female slaves.
33
His impassioned declaration seems to me less an apologetic remark tailored for Western or non-Muslim consumption than a

xxvi introduction

reflection of the extent to which the entire edifice of classical thought on sex and sexuality clashes with modern expectations, including those of Muslims who are deeply committed to the relevance of the classical tradition.