SEXUAL ETHICS AND ISLAM
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Sexual Ethics and IslamFeminist Reflections on Qur’an, Hadith,
and Jurisprudence
K. Ali
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SEXUAL ETHICS AND ISLAM
Published by Oneworld Publications 2006
Copyright © K. Ali, 2006
All rights reserved.Copyright under Berne Convention.A CIP record for this title is available
from the British Library
ISBN-13: 978–1–85168–455–7 (Hbk), 978–1–85168–456–4 (Pbk)ISBN-10: 1–85168–455–7 (Hbk), 1–85168–456–5 (Pbk)
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NL08
For my mother, my first instructor in ethics,and for my children; may their instructor prove as capable.
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Study of the tradition demands an exercise of the historicalimagination that is sympathetic as well as critical; sometimeswhat is branded as obscurantism or bigotry is simply a reflectionof a climate of ideas wholly alien from that of our own time.Some of the sexual notions transmitted to us from the past areunfounded, and their effect has proved to be damaging; butwhile we may deplore this, we must also make the effort tounderstand where they originated and why they were accepted –and to realize that their advocates were rarely moved by malevolence or stupidity.
Sherwin Bailey, Sexual Ethics: A Christian View
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Contents
Acknowledgements ixNote on texts, translation, and transliteration xiIntroduction xii
1 Marriage, Money, and Sex 1
“And according to what they spend from their wealth … ” 3Sex 6Intermarriage 13Conclusion 21
2 Lesser Evils: Divorce in Islamic Ethics 24
Untying the knot 25Extreme circumstances 29Prospects for reform 34Conclusion 36
3 “What your right hands possess”: Slave Concubinage in Muslim Texts and Discourses 39
Islam and slavery: overview of sources and history 44Women, war captives, and withdrawal 47Conclusion 52
4 Prohibited Acts and Forbidden Partners:Illicit Sex in Islamic Jurisprudence 56
Protecting chastity: the classical texts 60Paternity, legal fictions, and non-marital sex in contemporary Muslim thought 66Conclusion 72
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5 Don’t Ask, Don’t Tell: Same-Sex Intimacy in Muslim Thought 75
History 79Don’t ask, don’t tell 85Same-sex marriage 91Conclusion 95
6 “Reduce but do not destroy”: Female “Circumcision” in Islamic Sources 97
Islamic or un-Islamic? 99“Reduce but do not destroy” 105Conclusion 109
7 “If you have touched women”: Female Bodies and Male Agency in the Qur’an 112
To whom am I speaking? 113A difficult verse 117Garments for one another 126Conclusion 131
8 The Prophet Muhammad, his Beloved Aishah,and Modern Muslim Sensibilities 135
Apologetics and polemics 138Searching for solace 144Conclusion 147
9 Toward an Islamic Ethics of Sex 151
Notes 158Bibliography 193Index 213
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Acknowledgements
This book advocates, among other things, assessing customarypractices and, rather than implementing them unquestioningly,modifying them as necessary. It seems fitting, then, that as Iuphold the tradition of acknowledging the numerous debtsaccrued in writing this volume, I alter it in one importantrespect: I wish to thank my family first, rather than last. My hus-band Mohamad Ali has been extraordinarily supportive over theyears I have worked on this project. Our children Shaira, Saadia,and Tariq continue to inspire me with their insistence on asking“why” when confronted with unfairness and injustice as well astheir unwillingness to accept unconvincing answers. The confi-dence and encouragement from members of our extended family have sustained me over the years. They all have my grati-tude as well as my love.
This project has its roots in my work during 2001–2003with the Feminist Sexual Ethics Project, funded by the FordFoundation and led by Bernadette Brooten. The first versions ofseveral of these essays, published on its website, took shape as Iworked alongside Gail Labovitz, Monique Moultrie, Raja El-Habti, and Molly Lanzarotta. I collected additional materialduring 2003–2004, while working on another project as aresearch associate at Harvard’s Women’s Studies in ReligionProgram. My colleagues at WSRP were enthusiastic; SharonGillerman in particular helped by translating crucial portions ofan article for me on short notice. The bulk of this book was writ-ten during my time as a Florence Levy Kay postdoctoral fellow atBrandeis University. A number of its ideas were first presentedand discussed in public lectures and conferences at the Ameri-can Academy of Religion annual meetings, Brandeis University,
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Boston University, Brown University, Clemson University, DukeUniversity, New York University, and Princeton University.
It would be impossible to name all the individuals withwhom I’ve enjoyed conversing and debating over the topics inthis book, but a few cannot escape mention. Ebrahim Moosaand Bruce Lawrence at Duke University were particularly help-ful, as was miriam cooke, who read a complete draft of the manuscript and made many helpful suggestions. Farid Esack,Jamillah Karim, Kevin Reinhart, Omid Safi, Sa’diyya Shaikh,Laury Silvers, Harvey Stark, and Amina Wadud asked perceptivequestions and prompted me to clarify certain points and expandon others. Zahra Ayubi, Ariel Berman, Ayesha SiddiquaChaudhry, Aysha Hidayatullah, Scott Kugle (who also helpedwith translation in a pinch), Rusmir Music, and Audrey Shorecommented on chapter drafts. Anjum Ansari, Afshan Bokhari,Sepi Gilani, and Mara Worle, as well as their respective husbandsBil Ragan, Scott Chisholm, Alex Norbash, and Amr Ragy, havebeen part of numerous dinner conversations on the topics ofthis volume. Needless to say, they did not always agree with me,or each other,but their astute comments and sharp observationshave made this a better book than it otherwise would be. I oweMara special thanks for her comments on drafts of chapters 1and 5. Though I have appreciated the advice of all of these indi-viduals, I have not always taken it, and none of them is in any wayresponsible for any errors of fact or interpretation that remain.
Finally, I would like to thank Hend al-Mansour forgranting permission to use her painting on the cover. It containstext drawn from Surat Yusuf, the chapter of the Qur’an that tellsthe story of the attempted seduction of the Prophet Joseph byhis master’s wife, traditionally known as Zulaykha. This “best ofstories” includes passionate female desire, attempted sexualcoercion, and divinely ordained standards of intimate conductfor men and women. It seemed particularly apt as an image:Muslim women are rereading and reimagining the Qur’an, indialogue and in tension with previous approaches but stillbound by certain constraints of the text itself.
x acknowledgements
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Note on texts, translation, and transliteration
Because the specific Arabic terminology and its connotations areso vital to the issues at stake, particularly where the words havelegal implications, I have striven for consistency in my transla-tion of key terms. Where I had to choose between a literal-but-awkward rendering or a more idiomatic but less precise rendering, I have generally chosen the former. Unless otherwisenoted, translations of works cited in Arabic are mine and workscited in English translation are by the translator. However,because of the nuances of the terms at stake, I have often chosento retranslate passages from Arabic text included in a parallel English/Arabic edition of a particular text. I have made clear inthe Notes where I have done so.
Where I have quoted hadith works and legal texts, I haveprovided the titles of chapter and subsection in addition to volume and page number for the editions cited in the Bibliog-raphy, so that those working with other editions of the texts canmore easily locate the relevant passages. In the case of the Sahihsof Bukhari and Muslim, I have usually chosen to cite the Englishor English/Arabic editions for ease of reference.
I have generally followed the IJMES system for translit-eration but, for the sake of simplicity, I do not use diacriticalmarks with the exception of ’ for medial hamza and ‘ for ‘ayn.Those familiar with Arabic should not have difficulty recogniz-ing the terms used.
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Introduction
For the vast majority of Muslims world-wide – not only extrem-ists or conservatives, but also those who consider themselvesmoderate or progressive – determining whether a particularbelief or practice is acceptable largely hinges on decidingwhether or not it is legitimately “Islamic.” Even many of thosewho do not base their personal conduct or ideals on normativeIslam believe, as a matter of strategy, that in order for socialchanges to achieve wide acceptance among Muslims they mustbe convincingly presented as compatible with Islam. This focuson Islamic authenticity is particularly intense on matters relat-ing to women, gender, and the family, where complex issues areoften reduced to fodder for charged debates over “women’s status in Islam.”The so-called woman question is central to bothanti-Muslim polemic and the apologetic counter-discourse thatadopts a terminology of liberation to describe the way “true” or“real” Islam respects and protects women, despite the existenceof potentially oppressive “cultural” practices. The limitations ofthese dichotomous approaches are evident,and a rich and grow-ing body of scholarship by Muslim women and men seeks todeepen and complicate discussions of issues relevant towomen’s lives as well as our understanding of the layered andintertwined nature of dominant discourses.
As a precursor to my own foray into these treacherouswaters, I want to highlight the importance of questioningwomen’s status in Islam – a phrase that can be read at least threeways. First, despite its reductionist language, the notion of“women’s status in Islam” can serve as shorthand conveying thepoint that a number of interrelated inequities constrain the livesof many Muslim women. But this acknowledgement alone will
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not get us very far. A second approach would question the use-fulness of the concept of “women’s status”itself. Muslim womenare so diverse in terms of class, geography, ethnicity, age, maritalhistory, and education that generalizations about our “status”are meaningless. Even if one limits the application of the term tothe realm of ideals rather than women’s lived experience, thepresupposition of an idealized and uniform tradition dramat-ically oversimplifies a complex and heterogeneous intellectualand textual legacy that spans nearly a millennium and a half.Yetthe tendency to cast discussions in terms of women’s status per-sists, particularly where Muslims want to point out that there isno necessary link between Islam and specific injustices. Severalyears ago, after the September 11 attacks, I contributed a chapterto an anthology of writings by American Muslims.1 I chose atitle, “The Problematic Question of Women’s Status in Islam,”appropriate to my essay’s argument that the formulation of thequestion was inherently flawed. An editor returned my proofswith the content intact, but a new and improved title:“The TrueStatus of Women in Islam.”Although we did reach agreement onanother title (which did not mention “status”at all), the incidentmade clear to me that even for those with a critical agenda, itrequires vigilance to escape reliance on clichéd and defensivemodes of presentation.
The phrase “questioning women’s status in Islam” canalso be read in a third way, as addressing the status of womenwho question. Too often, Muslims, especially females, who chal-lenge certain widely accepted views are met with warnings todesist; that way, it is said, lies heresy, blasphemy, apostasy. Thosewho have appointed themselves the guardians of communalorthodoxy are particularly vigilant on matters concerned withwomen and gender – in part,because it is in these realms that theconstruction of Muslim identity in self-conscious opposition toa decadent West takes place.
The terms “Islam” and the “West” are oppositional butalso interdependent; their relationship to one another is in aprocess of constant renegotiation, particularly now that one canspeak of “Western Muslims.” The growing Muslim populationsin nations that have long exemplified the Other for Muslim
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thinkers are only one reason that this dichotomy is unsatisfac-tory. Muslim thinkers as well as their works easily cross borders,through satellite television, Internet sites, and subsidized trans-lations of doctrinally correct materials for distribution in European and North American mosques. Even materials pro-duced for audiences in Muslim societies of the Middle East and South Asia are not unaffected by Western discourses; centuriesof give-and-take, built on the unequal socio-economic and geo-political foundations of European colonialism, have resulted ina palpable enmeshing of concern with the West in all facets ofMuslim intellectual life and production, but none more so thanwomen and gender.
To generalize, Western discourse from the colonial eraonward portrays the basic condition of the Muslim woman as downtrodden, in contrast to the respected and (sometimes)liberated Western woman.2 By and large, Muslim discussions ofwomen’s place, position, or status – in English and other West-ern languages, especially – are a reaction to these Western critiques. In quite a number of works, selective quotations fromnineteenth and twentieth-century European authorities areused to either praise Islamic norms as superior to Western ones,or to corroborate a view about female nature also held by theMuslim author. In other instances, Muslim authorities mayattempt to reverse the values assigned to Muslim and Westerntreatment of women by criticizing lax moral standards or otherelements of Western social life.
Although these works are ostensibly concerned withwomen, the rhetoric on both sides tends to revolve around sexand sexuality. Western media present the Muslim woman as afigure whose oppression is inextricably linked to her sexuality;her oppression is a particularly sexual one, symbolized by fanat-ical concern with women’s bodies, “the veil,” and female seclusion.Muslim critique,unwittingly echoing certain Westernfeminist arguments, counters that when it comes to femaledress, Western societies oppress women by judging their worthas persons based on physical attractiveness.While non-Muslimsjudge the lot of the Muslim woman harsh because of the per-missibility of polygamy, Muslim authors counter, not without
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some justification, that an obsessive focus on polygamy asdegrading to women is hypocritical when adultery, serial remar-riage, and out-of-wedlock births to men who do not take paternal responsibility are rampant in the West. In non-maritalliaisons,“The man has no commitment or obligation toward themistress or girl friend”3 which, the argument goes, stands incontrast to the humane, honest, and realistic nature ofpolygamy.4
On matters of sexual morality in general, Muslimauthors from a variety of perspectives present the Muslimmodel as better for women than degrading Western normswhich, in allowing unrestricted sexual liberty, fail to protectwomen from male exploitation. A Nigerian scholar whoseworks on Islamic topics are circulated extensively, ‘Abdul Rahman Doi captures a common sentiment when he declares,“Heart-breaking transference of love and affection, neglectedwives, forsaken children,mistresses, and street girls are commonfeatures of Western life.”5 In contrast to “Western women [who]are the most unhappy creatures on earth,” Muslim women areprotected by breadwinning husbands who provide adequatelyand consistently for their dependents, a category that includeswives and children.6 A Muslim husband is the ultimate author-ity within his home but does not act in a dictatorial fashion orabuse his powers of decision-making, and it is his greater ration-ality that prevents the family from the easy dissolution thatwould occur if women were given control over divorce.
This idealized portrait of Muslim family life clearly cannot be compared fairly to the worst abuses found in non-Muslim Western society. It is seldom acknowledged or even recognized, however, that the model of family life Doi and others idealize in this way not only does not describe reality forthe majority of Muslims, but is also quite distinct from the idealsupheld in authoritative premodern texts, where sexual availabil-ity, not child-rearing or homemaking, was a wife’s main duty. Ofcourse, these texts were prescriptive rather than descriptive, andother evidence suggests that many non-elite women did per-form considerable household work and were primary providersof care for their children. At the level of ideals, however, Doi’s
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neo-traditional vision departs considerably from earlier modelsof Muslim sexual ethics. Although classical and medievalthinkers expressed, like Doi, strong concern for a husband’s economic responsibilities toward his wife as well as his kindtreatment of her, they authorized multiple wives and unlimitedconcubines for men with no stigma attached and acceptedrestrictions on women’s mobility to ensure their exclusivity and availability to the men with sexual rights over them. Ninth-century jurist al-Shafi‘i spoke for the majority when he declaredthat a husband was not bound by a stipulation in his marriagecontract not to marry additional wives or take any concubinesfrom among his female slaves, justifying his view on the groundthat such a condition “would be narrowing what God madewide for [the man].”7
In fact, the matter-of-fact references to concubinagethroughout the writings of Muslim scholars highlight the moststriking difference between contemporary and classical sexualethics: the premodern acceptance of a male owner’s sexualaccess to his female slaves. Classical texts were not describingdemographic reality, but rather participating in a discourse ofadvice and regulation. Nonetheless, their assumption that menwould have multiple sexual partners, wives and/or concubines,stands in marked distinction to contemporary Muslim dis-courses on sexual relationships which, when they discusspolygamy approvingly, generally do so with justificationspremised on female needs for protection rather than simplemale prerogative. Although generalizations about modern sen-sibilities are fraught with peril, particularly given the diversitywithin the billion-strong Muslim populace, it is not a stretch toclaim that most Muslims today would view al-Shafi‘i’s doctrineon permissible sexual relationships, particularly concerningslave concubines, as incompatible with fairness and justice(themselves notoriously variable concepts).8 Yet while virtuallyno one advocates reviving slavery as an institution, slaveholdingfundamentally shaped the contours of Islamic ethical and legalthought on sex in ways that have not been fully recognized. Andalthough the clearly unequal model of sexual ethics enshrined inclassical texts no longer makes sense to a significant number of
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Muslims, at least at an intuitive level, nothing new has emergedto replace it. Despite the readiness of some Muslims to discardthe model inherited from the classical jurists in favor of some-thing more egalitarian – and the desire, on the part of a subset ofthese, to be open to new forms of sanctioned relationships – little attention has been paid to themes such as consent, reci-procity, and coercion that are crucial to both an understandingof traditional Islamic sexual ethics and the possibilities fortransformations in those ideals. My exploration of these issuesin this book is a preliminary contribution to a necessary and far-ranging conversation over all aspects of sexual ethics in Muslimlife and thought.
Of course, the sexual subordination of women is by nomeans exclusive to Muslim societies or Islamic thought. Untilthe very recent past there was a near universality of laws propos-ing a system of allocating marital rights based on an exchange ofmale support and protection for female “sexual, reproductive,and housekeeping services.”9 (The exact contours of suchexchanges varied dramatically between and even within soci-eties due to variables including class status and religious doctrine; in Muslim societies, the requirement of housekeepingwas usually absent in theory, however prevalent in practice.)Slavery in ancient Greece and Rome, which was both wide-spread and legal, illustrates that the sexual use of owned personsis not unique to Islamic texts or practice; likewise, biblical textsalso permit, or at least tacitly condone, the sexual use of femaleslaves as well as polygamy.10 Nor are sexual slavery and sexualabuse (of both males and females) limited to ancient societies, ascontemporary debates over human trafficking and sex workindicate. Specifically sexual abuse exists within a larger climateof widespread intimate violence against women and girls, frombride-burnings or “dowry deaths” in India, to “crimes of pas-sion”in the United States and Latin America, where jealous menmurder (ex-)wives or (ex-)girlfriends.
Systemic injustices call for comparative treatment ofhierarchical and gendered domination across geographic,chronological, and cultural boundaries.11 Yet although suchstudy is necessary and fruitful, calls for comparison by those
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working on Islam-related topics are too often motivated not bya sincere wish to understand deeper structures of oppressionbut by the desire to divert attention and criticism from Islamand Muslims. It is true that Muslim norms and practices are historically consonant with those of other religions and civiliza-tions, and that the criticisms frequently levied against Islam bynon-Muslim Westerners reflect both cultural ignorance and historical amnesia. To take just one example, Americans and Europeans who decry the normative requirement of maritalsubordination for Muslim women seem to forget that “Obedi-ence was so fundamental to the biblical idea of a wife that itremained in Jewish and Christian wedding vows until the latetwentieth century.”12 This work takes the existence of these parallels as a given, using comparative examples primarily tohighlight significant variations – as, for example, betweenancient Near Eastern and biblical views on illicit sex and those ofclassical Muslim authors. In restricting myself largely to Islamictexts and, to a lesser extent, Muslim experiences, I am aware that I run the risk of contributing to the common impressionthat Islam is uniquely oppressive toward women or that theproblems of sexual ethics Muslims face are somehow moreintractable than those confronted by adherents of other faiths.Some may view my focus on sexual matters as playing into theWestern obsession with Muslim sexuality at the expense ofother, more vital, areas of concern. Poverty, political repression,war, and global power dynamics are, indeed, crucial to Muslimwomen’s lives.13 However, even these issues cannot be entirelydivorced from sex and sexuality: poverty matters differently forwomen, when it constrains women’s inability to negotiate mar-riage terms or leave abusive spouses; repressive regimes mayattempt to demonstrate their “Islamic” credentials by capitulat-ing to demands for “Shari‘a” in family matters or imposing putatively Islamic laws that punish women disproportionatelyfor sexual transgressions. Nonetheless, as Jewish feminist the-ologian Judith Plaskow points out, “writing about sexualityunavoidably re-enacts singling it out as a special issue and prob-lem.”14 The possible benefits of an exploration of sexual ethicsseem to me worth the risks, given the frequent invocation of
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Islamic authenticity in those spaces where religion has a norma-tive impact – that is, nearly everywhere.
Why, though, focus on texts when Islamic normativedoctrine has never been entirely reliable as an indicator ofMuslim practice? Notwithstanding British colonial official F.X.Ruxton’s claim, in the preface to his translation of a fourteenth-century Maliki legal manual, that “in the case of Muhammadancountries, it is the Law that has moulded the people, and not thepeople the Law,” in reality the effects of social circumstances onboth the formulation and the implementation of the law hasalways been of central importance.15 Real women’s (and men’s)lives do not neatly follow the patterns set out in legal manuals,and have never done so.16 As noted above, differences betweenand within Muslim populations are so significant that anyattempts to discuss “the Muslim woman” or “sex in Islam” mustbe suspect; variables of class, geography, and time period, not tomention individual characteristics which are impossible toaccount for in statistics, make generalizations frequently mis-leading. Additionally, for the sensitive subjects under discussionhere, empirical evidence concerning practice is difficult toobtain. But there is a relationship between ideal and reality andthere is a certain coherence to premodern prescriptive models ofMuslim womanhood and sexual relations.17 It is precisely in thearena of sexual ethics where normative Islamic texts andthought have been, and continue to be, most influential.
Before proceeding to consider these texts, it is worthasking why a Muslim who considers herself progressive (with allthe caveats about the inadequacy of that term) should botherwith engaging the Islamic intellectual tradition at all. Doing so,it is true, bolsters the authority of “written Islam, textual,‘men’s’Islam (an Islam essentially not of the Book but of the Texts, themedieval texts)”at the expense “of the oral and ethical traditionsof lived Islam.”18 As Leila Ahmed points out, “textual Islam” hashistorically been the province of a male elite,and does not accur-ately represent the understandings of Islam embedded in theexperiences of many Muslims, especially women. If I do notaccept the sole interpretive authority of the juristic and exeget-ical heritage – which is strongly patriarchal and sometimes
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misogynist – why not bypass it entirely, and turn to the Qur’analone as a guide? What is to be gained from focusing energy onanalysis and critique of texts that I do not consider authorita-tive?19 There are several possible answers to these questions. Inpart, 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 divinewill. More obviously, they are worth analyzing because theirframeworks and assumptions often undergird modern views inways that are not fully recognized or understood.
For all of its flaws and insufficiencies, the Muslim intel-lectual and, especially, legal tradition provides significantground for engagement on matters of ethics. Conventional wisdom in some circles has come to view “oral” Islam (whichAhmed equates to “women’s” Islam) as more compassionateand ethical than “textual”or “official”(“men’s”) Islam but this isan oversimplification. As Ahmed and others show, “official” or“textual” Islam is sometimes more protective of women’s rightsthan cultural practices that depart from the jurists’ rules. It isimpossible to generalize about whether popular practices aremore 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 narrowlylegalistic are attuned to ethical considerations to a considerableextent, even though, on many matters of gender and sex, theirauthors’ ethical visions depart from those that I see as being inaccordance with highest aspirations of the Qur’an. In part,this book is an attempt to demonstrate that constructive andcritical engagement with the Islamic intellectual heritage can beimportant in providing a framework for renewed and invig-orated Muslim ethical thought.
The scholarly tradition is one significant source ofknowledge 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 thelegal tradition, for instance, demonstrates the ways in whichauthorities have, from the earliest years of Islam, used their own
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judgment and the customs of their societies to adapt Qur’anicand prophetic dictates to changed circumstances. It illustratesthat some of the doctrines taken for granted as “Islamic”emerged at a particular time and place as the result of humaninterpretive endeavor and need not be binding for all time.Furthermore, the precedent of earlier jurists can authorize asimilar interpretive and adaptive process for Muslims today,including bypassing (through a variety of interpretive devices)even seemingly clear Qur’anic statements. A legal methodologyoffers legitimacy for a flexible approach to the Qur’an and theProphet’s sunnah as revelation that emerged in an historicalcontext.21
How does this discussion of jurisprudence and lawrelate to the issue of ethics? The word ethics does not have a precise equivalent in Arabic; akhlaq, the usual term, is betterrendered as morals or character, and adab, a less frequently usedalternative, is more appropriately translated as comportment.22
Most of what falls under the rubric of ethics as understood in themodern West was the purview of the Muslim jurists, whoaddressed 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 doesnot merely separate action into categories of required and forbidden, but also includes intermediate categories ofrecommended, reprehensible, and indifferent.”23 This five-foldclassification scheme (al-ahkam al-khamsa) became standardamong Muslim thinkers, although they often disagreed aboutwhere particular acts fell on the scale.24 It allows for morenuanced 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 Muslimscholars, who warned against “making lawful what is forbiddenand forbidding what is lawful,” but they generally engaged in aless categorical and more nuanced analysis of moral andimmoral behavior.
What does it mean to say that something is lawful or forbidden according to Islam (or Islamic law or shari‘a) today?
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The relationship between enforceable duties and ethical obliga-tions has become increasingly blurred in a world where Islamiclegal institutions no longer function in anything like the mannerthey did in the classical and medieval periods.26 Even in the pre-modern Muslim world, the jurists’ doctrines did not find directexpression in the courts. Given these shifts, is Islamic jurispru-dence the necessary framework for resolving how to addressissues of marriage, family, and sex? While some insist that thelegal 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 ofsocial and economic transactions engaged in by Muslims, evenin majority Muslim societies, do not strictly follow these legal precepts. Only on some matters of personal status do somemajority-Muslim nations retain religiously based laws, andthese differ widely from one country to another. In many cases,these post-colonial family laws also diverge sharply from theclassical Islamic jurisprudence on which they are purportedlybased. Among Muslim-minority populations in the nations ofNorth America and Europe, moreover, Muslims are free to applyonly those regulations that they choose, either writing them intocontracts drafted to comply with applicable civil laws or entrust-ing compliance out of belief and conscience, just as in matters ofreligious practice.
As an American, I am particularly concerned with theissues facing what British scholar Abdal-Hakim Murad refers toas “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 asone with the luxury of deciding whether and how to apply reli-gious doctrine in my own life – whether to arrange my affairs tofollow the dictates of one or another school of jurisprudence, orthe regulations in the Qur’an, or to follow civil law. The entirelyvoluntary nature of all types of religious observance means thatthe urgent questions for Muslims living under civil laws inNorth America and Europe in particular are ethical or moralrather than narrowly legal. At the same time, the fact that thereare no putatively Islamic civil statutes involved means that those
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Muslims concerned with Islamic law tend to focus on “authen-tic” texts, rather than national legal codes, making engagementwith 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, whoonce 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 andespecially twentieth centuries have come from outside this class,a tendency which seems likely to continue unabated in thetwenty-first century. Basheer Nafi and Suha Taji-Farouki arguethat 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 theulamatic traditions of learning as the necessary credentials forspeaking on behalf of Islam, the Islamic cultural arena becamewide open to an assortment of voices, reflecting new notions ofauthority.”29 In theory, the processes Taji-Farouki and Nafi iden-tify could lead to inclusiveness. Yet as Khaled Abou El Fadl hasshown, the “new notions of authority,” far from opening up ademocratic 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 stiflingeffect 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 bysome of the “don’t ask, don’t tell” model embedded in Islamicnorms that allows for deviation in practice, provided certainideals aren’t questioned. Third, the shift in values surroundingsex brings into relief the legal tradition’s systematic, though notnecessarily intentional, devaluation of mutual consent as anethico-religious value for sexual relationships and sexual acts.This classical model exists in tension with the stress on consentand mutuality in contemporary Muslim discourses on marriageand gender relations. Finally, and cutting across the previous
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three items, I am concerned with structures of authority and theshifting and competing models of authoritativeness invoked byparticipants in contemporary debates over sexual ethics. I willaddress the first three items in a bit more detail, returning toquestions of authority throughout the study.
The continual framing of discussions over sex in termsof “Islamic-ness” is part of a broader flattening of moral argu-ment and thoughtful debate among Muslims. Kevin Reinharthas noted the shift among Muslims to talking about “Islam” as asource of authority rather than the Qur’an, God, the Prophet, orthe scholars.30 On the one hand, this shift may facilitate atten-tion to principles; on the other hand, it allows for the emergenceof doctrinal authoritarianism. Abou El Fadl has presented apainstaking portrait of this authoritarianism, which he views aspervasive in contemporary Muslim discourse. While the pri-mary targets of his critique are the numerous conservativeauthorities who presume to speak for Islam – or rather, for God– his arguments are equally relevant to those who advocatechange. According to Abou El Fadl, those who would argueagainst the weight of inherited tradition have an obligation tomake clear that they are doing so, even as they present their casefor why an alternate position has more merit.31 This requiresacknowledging the extensive and diverse views of previous generations of thinkers, not just citation of isolated hadith orQur’anic verses as if those texts were entirely dispositive of a particular point.
The issue of full disclosure is particularly relevant giventhe fundamental shift in conventional wisdom among manyMuslims 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 traditionuniformly accepted a father’s right to marry off his minordaughters (and sons) without consulting them, modern state-ments, including a recent Saudi fatwa, gloss over this consensusin 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
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consenting adults in the broader culture has led some Muslimsto question the rationale behind Qur’anic, hadith, and legal pro-hibitions of such liaisons. The confusion over the issue arises inpart because of the unfamiliarity of lay Muslims with the basicconcepts structuring Islamic notions of lawful sex – my thirdpoint.
There is a mismatch between views of marriage and sexual intimacy as based in mutual consent and reciprocal desireand the entire structure of classical jurisprudential doctrinessurrounding lawful sexuality. These doctrines viewed milk –that is, ownership, dominion, or control – as the basis for licitsex, whether it was within marriage, milk al-nikah, or slavery,milk al-yamin. The general disappearance of slavery in Muslimnations 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 wasconsidered a perfectly lawful and normal institution for wellover a millennium. Because slavery is no longer legally practicedin the Muslim world, many have assumed that the regulationssurrounding slavery are irrelevant to contemporary discussionsof Muslim marriage and family law; thus, discussions of legaltexts make little reference to the jurists’ frequent treatment ofquestions 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 concubinestogether strengthens the conceptual relationship.These connec-tions tend to pass unremarked, however, and the lack of activegrappling with the implications of abolition can lead to irony oreven 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 prohibitionof every kind of extra-matrimonial connection”in his preface toa chapter (Marriage) containing several matter-of-fact refer-ences to Muslim men having sex with their female slaves.33 Hisimpassioned declaration seems to me less an apologetic remark tailored for Western or non-Muslim consumption than a
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reflection of the extent to which the entire edifice of classicalthought on sex and sexuality clashes with modern expectations,including those of Muslims who are deeply committed to therelevance of the classical tradition.
It is an obvious point, but it bears stating directly: inmaking value judgments, people are influenced not only by reli-gious texts and teachings but also by their own social, cultural,and religious backgrounds. The early jurists were no exceptionto this rule; like contemporary Muslim thinkers, they could nothelp but be influenced by their own sense of what was right andwrong, natural and unnatural. In engaging with Muslim texts ofthe past, it is important to consider the ways in which theirauthors’ base assumptions differ from those of the present. Oneuseful indicator of the distance separating a contemporaryreader from a past audience is the hierarchy of sexual acts thattwelfth-century scholar al-Ghazali, whose writings on sexualityhave been frequently quoted by modern authors, presents in hismagisterial work The Revivification of the Religious Sciences.Al-Ghazali counsels a man who cannot afford to marry a freewoman that if he feels sexual urges that he needs to satisfy,marrying another’s female slave is a lesser evil than mastur-bation, even though children born of the union will be enslaved.Neither is as bad as zina – in this context, fornication. Althoughmarriage to someone else’s slave is problematic, al-Ghazali simplyassumes the permissibility of a man’s sexual use of his ownfemale slaves. Intercourse with a slave who has no opportunityto grant or withhold consent is morally better than mastur-bation, which cannot involve coercion, or illicit sex with a willingwoman. Many Muslims today find it simply unintelligible thatsex with a slave acquired for that purpose would be preferable tosex with a consenting partner to whom one had no legal tie.
I will return to the complicated subject of consent inchapter 9, but want to stress at this point that while I do notbelieve consent and mutuality are fundamentally incompatiblewith an Islamic ethics of sex, these values were not prefigured inpremodern Muslim texts in a way satisfactory for the twenty-first century.Although there are important lessons to be learnedfrom the writings of premodern Muslim scholars, a great
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psychic distance separates Muslims today from the circum-stances of past centuries when authoritative doctrines were formulated. Given this very real dissonance34 between the cultural assumptions undergirding the classical edifices ofjurisprudence and exegesis and the modern notions influencingMuslim intellectuals and ordinary people everywhere, eventhose who consider themselves conservative or traditional, thereis an acute need to explore vital themes and connectionsthrough a variety of texts.
One “modern” value that is criticized in some discus-sions of the Muslim heritage concerning sex is prudery. Muslimshave often been self-congratulatory about the heritage ofexplicit discussions of sex in legal and literary works, withoutrecognizing the pervasive nature of androcentric and evenmisogynist assumptions in those texts. The presence of eroticain Muslim literature, as well as the positive valuation of sexualpleasure in authoritative sources, does not resolve the problemof the double-standard inherent in this literature; texts focus onmen’s needs and desires.35 Even sensitive scholars can overlookthese dynamics, which are deeply ingrained in the tradition.When the “Sex and the Umma” section of the website MuslimWakeUp was launched in early 2004, the site editor solicited articles from Muslim scholars in support of the endeavor.36 Oneessay quoted a ribald joke attributed by Ahmed al-Tifashi to theProphet’s cousin and son-in-law, the fourth Sunni caliph andfirst Shi‘i Imam,‘Ali b.Abi Talib in a work containing “the amus-ing stories, entertaining poems and flagrant incidents involvingsexual pleasure he had witnessed or heard from colleagues.”37
The joke was intended to demonstrate the “raunchy and delight-ful” nature of medieval Islamic discourse in contrast to theprudery that characterizes contemporary Muslim discussions ofsex and sexuality. In it, a woman approached ‘Ali to complain“that she had given away her daughter in marriage, but the hus-band divorced her because she was only three feet tall. ‘Threefeet!’ declared Ali, ‘that ought to have been enough – at most sheneeds to able to take nine inches!’” The article immediately garnered comments from readers when it was posted, with themajority aghast at the intimation that ‘Ali could have possibly
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said such a thing. Did these replies express outrage, disgust, oreven mild concern at the idea that ‘Ali could have referred to awoman in such an objectified manner, reducing her to a sexualreceptacle? Hardly: what shocked readers was the scandalousassertion that ‘Ali could have joked in such a familiar mannerwith a woman who was not a close relation to himself ! My pointis that it is not merely contemporary prudery that Muslims con-cerned with sexuality have to combat; despite valuable elementsin premodern texts, including a willingness to be explicit andhave a sense of humor about sexual matters, there are deeplytroubling elements that must not be ignored.
Before proceeding, I want to delineate what I am and am not attempting to accomplish in this volume. I am not a jurist, a Qur’an scholar, or an ethicist, and I certainly do not“do” jurisprudence here. Yet although this work is primarily concerned with analyzing current debates, I have tried to beforthright in stating my opinions, even when I was inclined to bemore circumspect, in an effort to move discussion of issues insexual ethics beyond critique and toward possible resolutions ofdifficult problems. Where I have indicated possible directionsfor further thought, my suggestions should be taken as tentativesteps in the direction of a just ethics of sex, not as an attempt toformulate a comprehensive program of religio-legal doctrine orto have the definitive word on any of the matters under discus-sion here. Sherwin Bailey, writing about Christian sexual ethics,noted several decades ago that “even among those who are concerned to think and act responsibly, and to maintain highstandards, there are differences of opinion as to what is right andwrong in given circumstances.”38 It is my sincere hope that thisbook will be taken as an invitation to conversation and fruitfuldebate.
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1The husband should go to his wife once every four nights. This is fairest,because the [maximum permissible] number of wives is four. One istherefore allowed to extend the interval up to this limit. It is best that thehusband should increase or decrease the amount of intercourse in accord-ance with his wife’s need to guard her virtue, since the preservation of hervirtue is a duty of the husband. If the woman’s claim on intercourse hasnot been fixed, this is because of the difficulty of making and satisfyingsuch a claim.Al-Ghazali, Book on the Etiquette of Marriage1
After the first time, intercourse is his right, not her right.Radd al-Muhtar, early nineteenth-century Hanafi legal text2
Muslims have practiced Islam in an enormous range of geo-graphic, historical, and social contexts, and Muslim scholars differ, sometimes significantly, on crucial points of doctrine.Despite this diversity, virtually all agree that marriage obligatesthe husband to pay his wife a dower, that a Muslim husbandbears the sole burden of providing for his wife and household,and that Muslim women may only marry Muslim men.Yet evenMuslims who assiduously affirm these regulations do not alwaysfollow them.The gap between expressed doctrine and practice isperhaps largest in Western nations, especially the United States,my focus in this chapter. Although there are no hard figuresavailable for American Muslim practices, anecdotal and otherevidence suggests that dower continues to figure in most mar-riages of Muslims despite its unenforceability as a matter of civillaw and the fact that it often remains unpaid. The majority of
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American Muslim women contribute materially to their ownsupport and that of their households, as many have done histor-ically and do elsewhere, the accepted gendered allocation ofmarital rights and responsibilities notwithstanding. And,although “the prohibition to give Muslim women in matrimonyto unbelievers … is one of the strictest and least disputed pro-hibitions in Muslim law of personal status,”3 the marriage ofMuslim women to non-Muslim men occurs in the U.S. withsome regularity, though not nearly as frequently as the marriageof Muslim men to non-Muslim women.4
With no coercive central authority or national legisla-tive body dictating what is required for marriage between Muslims, American Muslims have adapted Islamic marriageregulations to fit prevailing legal, social, and cultural norms.These norms are not uniform even within the subset of theworld’s Muslims who live in the United States. African-American Muslims constitute the largest single ethnic group ofMuslims, followed by Asian, Arab, and African immigrants andtheir descendants. These larger groups are supplemented by sig-nificantly smaller numbers of white and Latina/o converts.Mostare Sunnis; some are Shi‘a. Marriage practices and ideals varybetween and within these communities, but all must confrontthe relationship between civil law and religious obligation.Choices about which religio-legal precepts to observe and whichshould be allowed to slip into disuse are not always logical orconsistent, and may have unanticipated results for individualMuslims or their communities.
This chapter considers dower, the regulations governingspousal support and sexual availability, and the prohibition ofintermarriage between Muslim women and non-Muslim men. Isuggest that the arguments used by Muslim thinkers, and oftenadopted by ordinary Muslims, to justify continued adherence tocertain classical rules are incompatible with other commonlyheld ideas about marriage. Further, none of these regulationstakes into account the vastly different context in which Ameri-can Muslims live and marry. I do not attempt to construct legalarguments in opposition to standard views, but rather to cri-tique the way in which the views are reproduced and defended.
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Ultimately, I suggest that reconsideration of dower, spousal sup-port, and intermarriage provides one possible way of thinkingabout a new structure for egalitarian marriage that bypasses thepatriarchal presumptions of these rules and avoids becomingmired in the minutiae of incremental legal reform.
“And according to what they spend from their wealth …” 5
Property transfer on marriage has been a common practicethroughout human history, though with dramatic variation inwho pays, how much they pay, and who receives the cash orgoods exchanged. Sometimes gifts are reciprocal; at other times, the transfer is unidirectional, either dowry paid to thehusband by the bride’s family or bride price paid to the wife’sfamily by the husband and/or his family. Marriage and dowerpractices in pre-Islamic Arabia have been the subject of signifi-cant speculation and little consensus.6 Most agree that in pre-Islamic Arabia, mahr was compensation paid to a bride’s familyin exchange for considering her offspring part of the husband’stribe rather than that of her father and brothers. The Muslimdower (mahr or sadaq), paid to the wife rather than her family, isusually regarded as a modification of this practice.7 (Numerousauthors cite this shift as proof of Islam’s liberatory stance towardwomen.8) There is some evidence suggesting that the mahr andthe sadaq, terms used interchangeably by classical jurists, wereoriginally distinct forms of compensation, with the latter goingto the wife herself. On this view, dower payment to the bridewould not be an Islamic innovation but rather an instance of theway that “Islam selectively sanctioned” certain Arabian tribalpractices “while prohibiting others.”9 In any case, Islamic rulesdefinitively allocated the money to the bride, although undercertain circumstances fathers were allowed to receive it andspend it for a daughter’s trousseau. Among Muslims, dower hasfrequently been an important part of property arrangements.10
How significant it was or is in practice has depended on thewealth of the parties; whether the dower is in cash, in kind, or inimmovable property; and whether it is paid up front, deferred to
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death or divorce, or split between prompt and deferred. Whenthe deferred portion of the dower is set at a sufficient amount, itmay also compensate women for some of the risk inherent inmarriage when men have or have had unrestricted rights todivorce with no long-term liability for alimony; under most cir-cumstances, a wife is only entitled to three menstrual cyclesworth of lodging and maintenance after divorce.11
Much modern Muslim discourse, from neo-traditionalists and feminists alike, praises dower as a source ofeconomic security for women and a token of a husband’s will-ingness and ability to provide. This rhetoric is pervasive even inthe United States, where most Muslims marry according to civillaw. Dower persists in the vast majority of American Muslimmarriages; though it is often only a symbolic amount, it differ-entiates Muslim marriage from that of the surrounding American society. In the United States, it is simple to set a doweramount at marriage, because religious authorities are fre-quently certified to perform marriages recognized by Americanlaw. However, following through on enforcement of dowerobligations in the wake of divorce is much less common, in partbecause these same religious figures have no role in civil divorce.Other reasons include the nominal amount of dower often allo-cated to the bride, the informality of verbal or written doweragreements that do not meet standards for enforceable con-tracts, and the fact that U.S. courts have proven ambivalent intheir treatment of dower obligations.12 The practical impact ofthese factors belies the rhetoric about dower’s importance as asafety net for women, and as an instance of the generous rightsIslam “guarantees” women.
Not only are most discourses on dower irrelevant toMuslim practice in the U.S., they are also detached from thelogic governing dower in Islamic jurisprudence, where dowerconstitutes compensation paid by the husband for exclusivelegitimate sexual access to his wife. (Al-Shafi‘i, among others,graphically refers to dower as “the vulva’s price,” thaman al-bud‘a.13) Dower has a very specific purpose and is linked inextricably to other rules, such as male-initiated divorce, thatare incompatible with the forms of civil marriage and divorce
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utilized by the majority of American Muslims.The Qur’an refersin general terms to a man’s financial obligations toward hiswife.14 The hadith texts discuss a range of dower possibilitiesfrom symbolic (an iron ring) to minimal (a quarter dinar orthree dirhams) to ideal (the dower paid by the Prophet to hiswives or that received by his daughters) to maximum (nonefixed). For the most part, these texts are silent on rationales,although the Qur’an does refer to the ajr (reward, compensa-tion) paid by a man for “what he enjoys from her.”15 In the developed logic of the jurists, however, dower came to be understood as compensation in exchange for milk al-nikah, thehusband’s exclusive dominion over the wife’s sexual and repro-ductive capacity, which also conveys his sole right to dissolve themarriage tie by unilateral divorce.
The linkage of divorce with dower may seem odd, butthe husband, in the jurists’ logic, is paying for a type of control.It is this control that makes sex lawful. The wife may not dissolvethe marriage without a judge’s approval unless specific condi-tions to the contrary, escape clauses of a sort, were included inthe contract.16 Given that the full dower becomes obligatoryafter consummation, and could represent a significant sum ofmoney, it makes a certain kind of sense that only the husbandwould be able to release the wife from the marriage. Otherwise,a woman could simply marry, consummate the marriage (or rather, allow it to be consummated), and then divorce herhusband while claiming the full dower amount to which she was entitled. This linkage between dower and divorce rightsillustrates the interconnectedness of each element of classicallegal tradition, and its attempt to achieve conceptual consist-ency; any attempt to modify the rules surrounding divorce but not those governing dower, as some advocates for women’srights have proposed, would alter the marital dynamic signifi-cantly.
Dower is not alone among the financial obligationsassociated with marriage that have been given new rationales bymodern Muslim authors. Contemporary Muslim thought gen-erally links male provision of nafaqa, or support, with a wife’shousehold service: the husband/father earns a living and a
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wife/mother stays home and keeps the house and raises the children.17 Yet this provider-homemaker division of labor doesnot reflect the actual experience of most Muslim families, wherewomen contribute to their own support and/or that of theirhouseholds and children, nor does it resonate with classicaltexts. Those texts, while sometimes suggesting that women havea religious obligation to manage the household, generally stressthat the husband maintains his wife in exchange not for house-hold services but for her sexual availability to him.
Sex
Current conventional wisdom among Muslims and non-Muslims alike holds that Islam is a religion with a positive viewof human sexuality.18 Medieval Christian polemics against Islamviewed its sensualism as barbaric in comparison to the purity of Christianity, but many modern commentators see Islam’sworld-affirming perspective as more realistic than the suppos-edly ascetic and world-denying stance of Christianity.19 Thecomparison relies on an oversimplified view of Christianity, butthe claims with regard to Islam have a basis in Muslim tradition.Key Islamic texts present marriage, and sex within it, as a nat-ural and desirable part of human life. The Prophet Muhammadreportedly objected to religious celibacy (“No monkery inIslam”)20 and specifically claimed marriage as part of his sunnah,or authoritative practice. Premodern biographical treatments ofhis life celebrate his virility as part of his sound human nature.
Both classical and contemporary authors likewise rec-ognize women’s sexual needs and appetites, but with differentemphases.21 Classical texts note the importance of female fulfill-ment, but usually focus on the discord-producing effects offemale dissatisfaction (the potential for social fitna) while stressing the wives’ duty to remain sexually available to their husbands. Contemporary authors, often quoting selectively fromthis corpus, pay less attention to these themes.22 Instead, theyfocus on women’s sexual rights within marriage, attempting to prove the importance of female pleasure by highlighting
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the dissociation of sex from reproduction and the importance offemale orgasm.
Significant texts in the Qur’an and hadith allude to theimportance of female gratification and satisfaction in the sexualact. These sources, drawn on by al-Ghazali in his frequently-cited writings, stress men’s responsibility for making their wives’experiences pleasurable.23 Al-Ghazali frames his discussion ofthe sexual act in terms of a husband’s responsibility for keepinghis wife satisifed; it is a matter of the husband’s duty, rather thanthe wife’s right.24 This duty has social, as well as intimate,dimen-sions: a man is obligated to keep his wife satisfied in part to keepher from wreaking social havoc. Given women’s generally slower trajectory of arousal and orgasm, both foreplay and prolonged stimulation are required, the former to ensure readiness for penetration, the latter to ensure attainment ofclimax. Foreplay, in his view, is the subject of the Qur’anic command “do some good act for your souls beforehand.”25 Healso cites a statement attributed to the Prophet, counseling men not to fall upon their wives like beasts, but rather to send “a messenger” prior to the sexual act. When questioned,Muhammad is said to have clarified that this “messenger” waskisses and caresses.
Al-Ghazali insists that it is the husband’s responsibility,having aroused his wife sufficiently for penetration, to see to itthat she also reaches orgasm. It is likely that she will only climaxafter “the husband has attained his desired end;” nonetheless,“mutual estrangement” may occur “whenever the husband istoo quick to ejaculate; simultaneity in the moment of orgasm ismore delightful to her.” This is part of his rationale for foreplay;if the wife is sufficiently close to orgasm before penetration,mutual climax is more likely. Al-Ghazali insists that the wife’sdissatisfaction can damage the intimate relationship betweenthe couple. Again, the husband is charged with ensuring thisdoes not occur: “The husband should not be preoccupied withhis own satisfaction, because the woman will often be shy.”26
Al-Ghazali’s explicit discussion of female orgasm high-lights one of the drawbacks of coitus interruptus (‘azl), themethod of birth control best known to early Muslims: a man
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must withdraw prior to his ejaculation to prevent conception,but “coitus interruptus may diminish her pleasure.” As Sa’diyyaShaikh points out, a wife is “entitled to full sexual pleasure” andhas “the right to offspring if she so desires.” Shaikh views thisdoctrine as evidence of “the priority given in Islam to mutualsexual fulfillment as well as consultative decision makingbetween a married couple in terms of family planning.”27 Sex fornon-procreative purposes was clearly permissible: with very fewexceptions, Muslim authorities accepted contraceptive meas-ures and approved of sex with pregnant women and nursingmothers, making clear that sexual pleasure was a worthwhile aimeven where pregnancy was an impossible, unlikely, or undesir-able outcome of intercourse. Shaikh is thus largely correct in her broad claim that “Within the Islamic view of marriage, anindividual has the right to sexual pleasure within marriage,which is independent of one’s choice to have children.”28 Yet themention of an ungendered “individual” who has this rightignores the context within which classical thinkers discuss mar-ital sex. Although Hanbalis, Malikis, and Hanafis viewed thewife’s permission for withdrawal as necessary, most Shafi‘is dis-agreed, and the reasons behind their disagreement are instruct-ive.29 According to one rationale, since a wife didn’t have theright to demand intercourse at any given time (a point on whichthe jurists largely agreed across the legal schools), her husbandcould prevent her from conceiving or attaining sexual pleasureby abstaining from intercourse with her entirely. Given that shetherefore had no independent right to orgasm or to conception,her consent regarding withdrawal was irrelevant. This doctrine,a minority view, complicates the simple view of an “Islamicright” to female sexual pleasure.
Muslim acknowledgement of the positive aspects offemale sexuality has historically coexisted with two views thatchallenge it in different ways. First, certain elements of the clas-sical Muslim tradition treat female sexuality as dangerous, withpotentially disruptive and chaotic effects on society.30 Histor-ians have demonstrated how anxieties about temptation andfemale sexuality translated into insistence (never fully achievedin reality) on restricting the appearance of women in public
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spaces.31 Muslim worry over fitna – chaos and disorder – hasoften focused on the sexual temptation caused both by women’sunregulated desires and the troublesome desire that womenprovoke in men. Second, and in a paradoxical relationship tothis view of women as sexually insatiable and thus prone to create social chaos, Muslim authorities have stressed the importance of the fulfillment of male sexual needs, especially inthe context of marriage. Drawing particularly on several hadithdelineating dire consequences for women who refuse their hus-bands’ sexual overtures, the insistence on men’s sexual needsand wives’ responsibility to fulfill them has competed for prom-inence in modern intra-Muslim discourses on sex with therecognition of female sexual needs.
Despite the scholars’ acknowledgement of the import-ance of female satisfaction in the sexual act, the overwhelmingweight of the Muslim legal and exegetical tradition is onwomen’s obligations to make themselves sexually available totheir husbands, rather than the reverse. This bias in the sourcesemerges even in contemporary discussions that attempt to dis-cuss male and female sexual rights in parallel, highlighting theimmensity of the task for those who would redefine sex withinmarriage as a fully mutual endeavor. A fatwa by conservativeSaudi mufti Ibn Jibreen32 exemplifies the extent to which con-cepts of reciprocity and mutuality permeate even conservativeMuslim discourses. At the same time, his strongly genderedunderstanding of male and female sexuality is broadly represen-tative of much contemporary Muslim discourse, including thatproduced in Western contexts.
Ibn Jibreen’s fatwa, entitled “The Ruling on Either of theTwo Spouses Denying the Other Their Lawful Rights,” respondsto the query, “Is it permissible for either of the two spouses todeny the natural rights of the other for a long period of time,without any acceptable excuse?”33 The mufti’s response exem-plifies the tension between moral exhortations surroundingwives’sexual rights in marriage,and the legal logic governing sexas part of the structure of gender-differentiated marital claimsbeginning with dower and carried through to divorce. Thoughthe questioner posed the problem of “either of the two spouses
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[denying] the natural rights of the other” as a gender-neutralone, sex in marriage is not a gender-neutral question. IbnJibreen opens by accepting his questioner’s premise of parity,declaring that “sexual relations” are among the “needs” of bothhusband and wife, but proceeds very quickly to discuss men andwomen in parallel, and then to differentiate them. Eschewingthe view that women’s desires are unmanageable, he opines thatmen generally have “a stronger desire” for sex than women. Therest of the fatwa considers men’s sexual claims in marriage, thenwomen’s sexual claims in marriage, lastly returning to universalstatements about sex in marriage.
The limited and contingent sexual rights of a wife standin contrast to the unrestricted right of a husband to sex “when-ever he desires it.”With the caveat that a man may not harm heror prevent her from performing any of her religious duties, IbnJibreen declares that a wife has “an obligation … to allow her hus-band to have sexual intercourse with her whenever he desires it.”(Note the passivity here: she is to “allow” him “to have sexualintercourse with her,” rather than actively having sex with him.)Ibn Jibreen accurately categorizes this as the dominant, virtu-ally unanimous, view of the Muslim jurisprudential tradition.Like al-Ghazali, who supports the wifely obligation to be avail-able to her husband in a passage less often quoted by modernMuslim authors,34 Ibn Jibreen recognizes that a wife also “hasrights to have her intimate needs fulfilled.” However, a husbandis not obligated to satisfy her “whenever” she “desires it;” ratherthe husband must “have sexual intercourse with his wife (atleast) once in each third of the year, if he is able to do so.”35
A number of hadith that make assertions about wives’sexual obligations serve as proof for this husbandly right;although Ibn Jibreen does not cite them in this fatwa, theyappear in other opinions issued by the Saudi fatwa council withwhich he is affiliated, as well as the writings of other thinkers.Abu Huraira is the authority for five closely related narrations inthe two Sahihs of Muslim and Bukhari. Muslim reports threestatements by the Prophet associating the husband’s displeasurewith divine displeasure in a chapter entitled “It is not permis-sible for a woman to abandon the bed of her husband:”
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When a woman spends the night away from the bed of herhusband, the angels curse her until morning.36
By Him in Whose Hand is my life, when a man calls his wifeto his bed, and she does not respond, the One Who is in theheaven is displeased with her until he (her husband) ispleased with her.
When a man invites his wife to his bed and she does notcome, and he (the husband) spends the night being angrywith her, the angels curse her until morning.37
Bukhari’s two traditions attribute similar words to the Prophet:
If a man invites his wife to sleep with him and she refuses tocome to him, then the angels send their curses on her tillmorning.
If a woman spends the night deserting her husband’s bed(does not sleep with him), then the angels send their curseson her till she comes back (to her husband).38
Details in these Prophetic hadith vary. In three ofthe five, the husband invites his wife to bed; the other two do notmention an invitation, only that she remains away. In all but one version, the angels curse the woman till morning or untilshe returns to her husband’s bed; in the last, God is directly “displeased until [her husband] is pleased with her.” These vari-ations do not affect the central point, which is that women’s sexual duties to their husbands are a matter of divine concernand divine approval is contingent on a husband’s approval.
Aside from the abstract, if horrific, prospect of beingcursed by angels or subject to divine displeasure, a wife’s sexualrefusal had practical consequences in the legal tradition. Mostjurists viewed the husband’s support of his wife as an exchangefor her sexual availability to him, and agreed that her sexualrefusal constituted grounds for suspension of her support.39 Thedominant Hanafi view differed in a crucial way; a man had tocontinue to support his wife even if she refused him, so long as
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she remained in the marital home.40 As an Indian author arguesin 1987, in euphemistic language, in case of the wife’s refusal ofsex, “It is taken that she shall be in his power and [he] can be intimate with her by applying some pressure.”41 The early jurists would have considered marital rape an oxymoron; rape(ightisab, “usurpation”) was a property crime that by definitioncould not be committed by the husband, who obtained a legit-imate (but non-transferable) proprietary interest over his wife’ssexual capacity through the marriage contract, incurring theobligation to pay dower in exchange. The Hanafi view that hus-bands were entitled to have sex forcibly with their wives whenthe latter did not have a legitimate reason to refuse sex was notwidely shared outside that school. Even the majority of Hanafithinkers who accepted this doctrine recognized a distinctionbetween forced intercourse and more usual sexual relationsbetween spouses; although both were equally licit, sex by forcemight be unethical.42
Unlike the clear penalties that a wife could face if she didnot fulfill her husband’s demand for sexual access, a sexually dis-satisfied wife had few avenues for redress, despite a man’s obliga-tion to keep his wife satisfied. Those sources that do exist,beyond those cited above as encouraging foreplay,do not receivenearly as much attention as the Abu Huraira hadiths cursingrecalcitrant wives. In one case, Muhammad is reported to havetold a man who boasted of fasting every day and praying at nightthat he should follow the Prophet’s own example, and moderatehis devotions so that he could partake of normal human activ-ities: food, sleep, and sex. Interestingly, the terms used liken thewife in that case to almost an extension of her husband’s body:“Your body has a right over you, your eyes have a right over youand your wife has a right over you.”43 This hadith is importantbecause it moves beyond the question of women’s satisfaction ina particular act, discussed by al-Ghazali and others, to the largerquestion of wives’ rights to sex itself.
What was the extent of the wife’s sexual claim on herhusband? With the exception of the literalist Zahiris, all legalschools adopted the view that a marriage could be dissolved forimpotence – that is, the husband’s failure to consummate the
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marriage. In the absence of any passage from the Qur’an orstatement from the Prophet on the topic, the jurists based them-selves on a ruling from the second caliph ‘Umar. The choice bysome (such as Abu Hanifa and his disciple Muhammad al-Shaybani) to follow this ruling while ignoring ‘Umar’s prece-dent in other cases demonstrates an exercise of jurisprudentialdiscretion.44 The near unanimity on the point suggests thatthere is, indeed, a strong strand of thought believing that sex is avital element of marriage. Nonetheless, despite the wife’s rightto press a claim of impotence in an unconsummated marriage,the vast majority of jurists went on to declare that she has nosuch right once the marriage has been consummated. One opin-ion quoted in the late Hanafi text Radd al-Muhtar presents thissentiment particularly bluntly: “After the first time, intercourseis his right, not her right.” At best, as in Ibn Jibreen’s fatwa, shemight be able to insist on intercourse once every four months,assuming her husband was capable of it.45
Sex is,by and large,a male right and female duty,accord-ing to fiqh texts, whatever the ethical importance of a husband’ssatisfying his wife and thus enabling her to keep chaste. Therepeated, though ultimately unenforceable, assertions of somescholars as to a wife’s sexual rights – or, more particularly, thehusband’s obligations – demonstrate an unresolvable tension.The modern attempt to render the spouses’ sexual rights parallelwithout departing from the overall framework of gender-differentiated rights and duties set forth by classical jurists is destined for failure; the model cannot accommodate piecemealmodifications. The legal tradition fundamentally views mar-riage as an exchange of lawful sexual access for dower, and continued sexual availability for support.To the extent that thesedoctrines still inform Muslim discourses, mutuality in sexualrights cannot be a requirement, merely an ideal.
Intermarriage
As with regulations surrounding dower and sex, the issue of mar-riage of Muslims to “people of the Book” – ahl al-kitab, generally
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understood as Christians and Jews – demonstrates both themutability and the limitations of existing jurisprudentialapproaches to intimate relationships. The Qur’an explicitlygrants permission in Surah 5, verse 5 for Muslim men to marryvirtuous women (muhsanat)46 from among those who havereceived scriptures in the past. Surah 2, verse 221 prohibits marriage between Muslim men and women to those who associ-ate partners with God (mushrikun/mushrikat). Surah 60, verse 10prohibits sending female converts who have come to the Muslimsback to their unbelieving husbands, who are declared to be inap-propriate spouses for them. The vast majority of Muslim scholarshave understood these verses, taken collectively, to forbid themarriage of Muslim women to non-Muslim men,whether “of theBook” or not, and to require the dissolution of any marriage to anon-Muslim husband when a wife converts to Islam.47
Their interpretations presupposed two kinds of hierar-chies: Muslims were to be dominant over non-Muslims andhusbands over wives. As wives were to be subordinate to theirhusbands, the marriage of a non-Muslim man to a Muslimwoman would challenge this authority structure:“A marriage ofa Muslim woman to a non-Muslim man would result in anunacceptable incongruity between the superiority which thewife should enjoy by virtue of being Muslim, and her unavoid-able wifely subjection to her infidel husband.”48 The same rationale governed, although to a lesser extent, other legal discussions about socio-economic parity between spouses,particularly important in the Hanafi understanding of kafa’a,measuring the suitability of the groom according to whether hewas the bride’s equal or better in lineage, wealth, and religiousstatus.49 The reverse was not true: twelfth-century Hanafi scholaral-Marghinani’s statement that “[I]t is not necessary that thewife be the equal of the husband, since men are not degraded bycohabitation with women who are their inferiors” was meant toapply with regard to suitability but applied equally to intermar-riage.50 Though some prominent early Muslims did object tointermarriage with Christians in particular on theologicalgrounds, the notion of a Muslim husband’s authority over anon-Muslim wife posed no conceptual problems.
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As exegetes and jurists grappled with the issue of inter-marriage, they took for granted the absolute necessity of bothMuslim political authority and male familial authority. Classicalexegetes explicitly grappled with the Qur’anic verses mentioningintermarriage, and tried to sort out the relevant categories (Muslims, believers, people of the Book, Jews, Christians, non-believers, mushrikun). Jurists, more pragmatically inclined,attended to issues of permissibility and conditions for interreli-gious marriages.For the most part, scholars simply assumed thatMuslim women couldn’t marry non-Muslim men and did notconsider it necessary to elaborate on their evidence and ration-ales. Ibn Rushd does not discuss Muslim women marrying non-Muslims in his Distinguished Jurist’s Primer which, becauseit treats matters on which jurists disagree, is often a repositoryfor minority opinions.51 More tellingly, neither Ahmad b. Naqibal-Misri nor his nineteenth-century commentator ‘UmarBarakat deemed it necessary to state that Muslim women couldnot marry non-Muslim men in the classic Shafi‘i manualReliance of the Traveller ; however, a late twentieth-century trans-mitter of the text adds it as a clarification for the English transla-tion; literally, what once went without saying no longer does.52
The scholar quoted in the Reliance states the prohibitionwithout presenting a justification for it, but numerous othershave addressed the point. The increasing frequency with which(civil) marriages between Muslim women and non-Muslim menare occurring, or where women who convert to Islam independ-ently remain married to non-Muslim husbands, has led toimpassioned, but deeply flawed, arguments by Muslim thinkersintent on upholding the standard prohibition of such marriages,though in quite different terms from those provided by early andmedieval thinkers, when they addressed the matter at all.53 Therationales presented, however, are often nonsensical, as well assimplistic in their discussions of intermarriage by Muslim men.The premodern tradition demonstrates a level of complexity indiscussions of intermarriage that does not carry over into con-temporary discussions, suggesting the relevance of context as afactor in determining the (im)permissibility of particular typesof marriages. At the same time, a reconsideration of the relevant
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Qur’anic passages in isolation from their traditional interpret-ation suggests that the text is less categorical than generallyassumed; sunnah may also provide a model of flexibility.
Even leaving aside the dominant Shi‘i view that menmay not contract nikah with non-Muslims of any type, earlySunni discussions of intermarriage between Muslim men andJewish or Christian women are more complex than the view,often expressed today, that while women are forbidden fromintermarrying, Muslim men may marry Christian or Jewishwomen. Marriage of Muslim men to non-Muslim women wasnot as straightforward as simple permissibility. First, authoritiesdebated who should be included in the definition of “people ofthe Book.” Ibn ‘Umar’s blanket disapproval of marriage to aChristian (for who is more an idolator who says that God is oneof three?) is a well-known minority view, but Christian and Jewish women were agreed by Sunni scholars to be acceptable, ifnot ideal, as marriage partners. Instead, the debate tended tocenter around the categories of the Sabeans (Abu Hanifa per-mitted marriage to Sabean women, though his disciples did not)and Zoroastrians (not lawful, according to the Hanafis, but theinclusion of this disclaimer makes clear that some did hold itpermissible).54 More importantly, quite a number of thinkersheld that circumstances mattered in assessing the permissibilityof marriage between Muslim men and kitabi women. It was onething to marry a kitabiyya within the safe haven of Muslim-ruled Dar al-Islam, but quite another to do it in Dar al-Harbwhen the possibility of the children being brought up as non-Muslims was more of a threat (assuming the husband divorcedthe woman and returned to his native land, which some scholarsconsidered a strong probability). According to the view pre-sented in the Hanafi text Fatawa-I-Kazee Khan, such a marriagewas “valid” but “abominable” (makruh).55
The early jurists also devoted substantial discussion tothe conversion of one spouse to Islam.56 When a Christian orJewish husband converted, he was allowed to remain married tohis wife of the same faith; his conversion resulted in a permis-sible marriage between a Muslim man and a kitabiyya. On theother hand, if the wife converted while her husband retained
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their original religion, there was general (although not univer-sal) agreement that their marriage could not continue, a position that has been generally upheld by scholars until thepresent day. However, two recent opinions by Western Muslimauthorities have declared that a woman who converts to Islam is not necessarily required to divorce her kitabi husband.Although the positions taken in these fatwas suggests a seriouschallenge to the dominant view of intermarriage,an explorationof their reasoning shows that neither upsets conventional wisdom as much as might be expected.
The first fatwa, by Taha Jabir Alalwani, appears on thewebsite of the mainstream and influential Islamic Society ofNorth America.57 He argues:
A questioner asks, “Is it forbidden (haram) for a Muslimwoman to be married to a non Muslim, and what shouldone do?” The standard answer based on the Qur’an is thatit is forbidden for a Muslim woman to be married to a non-Muslim so she should be divorced immediately. Howeverin this particular case the circumstances are as follows: Thewoman has just converted to Islam and she has a husbandand two young kids. The husband is very supportive, but isnot at this time interested in converting. The woman wastold immediately after converting that she had to divorceher husband of 20 years. Within these circumstances thequestion should have been: Is it worse for a Muslim womanto be married to a non-Muslim husband or for her to leavethe religion? The answer is that leaving the religion is muchworse, so therefore it is acceptable for her to continue withher marriage and she is responsible before Allah on Judg-ment Day.
Alalwani situates his response to a “questioner” asking about “a Muslim woman [being] married to a non Muslim” within aconsideration of the larger issue of whether questions have beenproperly formulated to lead to appropriate results. The questionposed was whether the situation was “forbidden” and whatwould be the appropriate action to take in case of such marriage.
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After discussing the woman’s personal circumstances, Alalwanireframes the issue as a choice between the convert remainingmarried to a non-Muslim or leaving Islam. In asserting that theway a question is formulated affects what answer can be given,Alalwani recognizes a key facet of all intellectual endeavor,Islamic jurisprudence not excluded. However, he does notacknowledge the extent to which his own statement of what “thequestion should have been” predetermines its outcome: therecan be no consequence worse than leaving Islam, so any alterna-tive, even violating the prohibition on marriage between a Muslim woman and a non-Muslim man, seems reasonable.
Rather than undertaking a serious reconsideration ofinterreligious marriage by Muslim women, Alalwani provides adispensation (rukhsa) which lightens a normal restriction torespond to an extraordinary circumstance. Indeed, he providesa truly extraordinary example: a woman married twenty yearswould be far more reluctant to leave her husband than one mar-ried only a few years. Further, a woman with young childrenwould be especially hesitant to separate from their father. Thefact that both these elements are present suggests contrivance:how many women married for two decades still have “two youngkids”? Though the situation he describes is biologically possible,it is far more likely that a woman married for such a long timewould have teenaged offspring. By depicting a situation whereone is very sympathetic to the woman involved, Alalwaniincreases the likelihood that readers will concur with his deliberations. But does this fatwa have relevance beyond theindividual case at stake?
Although the logic of this fatwa is internally sound, itsmethodological premise is too superficial to be sustained orapplied more broadly, as it allows for almost any manipulationof the question to result in the desired answer. Would he acceptthe same rationale if it were not a convert’s marriage at stake butrather an unmarried Muslim woman in love with, and wantingto marry, a non-Muslim, and in danger of leaving Islam if shecould not do so? What if it were two Muslim women wanting tomarry each other, now permissible under civil law in certainparts of North America and Europe? Presumably, Alalwani
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would approach these situations differently, but this fatwa doesnot provide any methodological justification for doing so.
Alalwani does not suggest a broader differentiationbetween permitting a convert to Islam to remain married to herkitabi husband (where her apostasy from Islam was not feared)and cases where an unmarried Muslim woman wanted to marrya Christian or Jewish man. There is some textual support for thisdistinction; anecdotal evidence suggests that the first generationof Muslims viewed the preservation of an existing marriagesomewhat differently than the case where no marriage yet existed.58 The second fatwa, from the European Council for Fatwa(an all-male organization that includes North America-basedJamal Badawi among its members), does make this distinction,“affirm[ing] and repeat[ing] that it is forbidden for a Muslimfemale to establish marriage to a non-Muslim male” while permitting a convert to maintain her marriage under certain circumstances.59 The fatwa acknowledges that “According to thefour main schools of jurisprudence, it is forbidden for the wifeto remain with her husband or indeed to allow him conjugalrights, once her period of waiting has expired.” The Councilbases its dissenting view on “some scholars” (those named areIbrahim al-Nakha’i, al-Shi’bi, and Hammad ibn Abi Sulayman)who held that “it is for her to remain with him, allowing him andenjoying full conjugal rights, if he does not prevent her fromexercising her religion and she has hope in him reverting [i.e.,converting] to Islam.” The Council’s rationale (“for women notto reject entering into Islam if they realize that they are to sep-arate from their husbands and desert their families by doing so”)is similar to Alalwani’s objective to prevent the convert’s apostasy, although the situation of one who never becomesMuslim is less dire than that of one who becomes Muslim onlyto abandon the faith.
Both fatwas acknowledge their departure from thenear-universal view on the dissolution of a female convert’smarriage. Neither, however, reconsiders the evidence on whichthat doctrine is based. Alalwani states simply that “the standardanswer based on the Qur’an is that it is forbidden for a Muslimwoman to be married to a non-Muslim.”60 However, his
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intimation that the Qur’an explicitly forbids such marriages ismisleading. The Qur’an does not address the situation ofwomen’s marriage to “non-Muslims” in general but rather dis-cusses specific categories of potential spouses such as “those whoassociate partners with God” (mushrikin) and “unbelievers.”Although both fatwas refer to a woman’s freedom to practice her new religion, neither discusses the relation of the cases atissue to the Qur’anic verse disapproving of Muslim womenremaining married to unbelievers (kuffar). A woman’s conver-sion separately from her “very supportive”husband suggests herfreedom of conscience and action. In contrast to the cases considered by these muftis, the Qur’anic verse explicitly treatsthe situation of women who had converted and left their husbands. The situation of female converts to Islam who hadcome as refugees from a community engaged in conflict with theMuslims is, in several respects, quite different from that ofwomen who desire to remain with their husbands, not to mention those living in a society in which Muslims and non-Muslims co-exist peacefully. The muftis could have chosen toargue that this Qur’anic ruling is context-specific and thereforedoes not apply in the dramatically altered scenario of a Christianor Jewish woman who converts to Islam in the United Statestoday.
If one holds that Surah 60, verse 10 does not apply to thesituation of converts in the West today, then the remainingQur’anic evidence against women’s marriage to non-Muslims istwofold: the prohibition in Surah 2, verse 221 on marryingwomen off to those who associate partners with God, and thesilence surrounding women’s marriage to kitabis in Surah 5,verse 5. The prohibition of marriage to mushrikin in the formerexplicitly applies to both Muslim men and Muslim women. Itcannot, therefore, be applicable to all “non-Muslims,” as many exegetes, both classical and contemporary, have assumedin the case of women.61 Rather, it is accepted to stand in non-contradiction to the permission for Muslim men to marrywomen from “those who have received the book before you”in the latter verse. To view the same command prohibiting marriage to mushrikin as applying more broadly to women than
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to men requires a significant interpretive leap, moving farbeyond the verse itself. The prohibition of marrying women offto mushrikin in Surah 2, verse 221 does not by itself foreclose thepossibility of permission for women to marry kitabis. Andalthough Surah 5, verse 5 does not explicitly grant permissionfor such marriages, there are numerous other instances in theQur’an where commands addressed to men regarding womenare taken to apply, mutatis mutandis, to women.62
If the Qur’an does not directly address the marriage ofMuslim women to kitabi men, and if the presumptions aboutmale supremacy and dominance in the home no longer hold,such that a female convert living in a majority non-Muslimnation is assured freedom to practice Islam in her home unen-cumbered (or to obtain a civil divorce independently if she isnot), what rationale exists for continuing to prohibit marriagebetween Muslim women and kitabi men in the first place? Myaim is not to construct a legal argument for the permissibility ofsuch marriages but rather to highlight the weaknesses in mostarguments against them, particularly their reliance on unspokenbut fundamental assumptions about male dominance in marriage. These assumptions are no longer widely shared, or atleast no longer broadly acceptable as justifications for the pro-hibition of intermarriage. At the same time, greater attention tothe discussions surrounding men’s marriage to kitabiyyas inboth hadith and jurisprudence suggests the relevance of takingcontext into account in both permission for and prohibition ofintermarriage. There are cogent arguments to be made for con-sidering the permission to marry non-Muslims on the basis offactors other than gender.
Conclusion
Discussions of marriage among scholars, pundits and ordinaryMuslims consist of a curious and continuously shifting mix ofspecific classical doctrines, isolated citations from Qur’an andhadith, and modern assumptions.Among Muslims in the UnitedStates, as in most Muslim-majority societies, classical models
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for marriage no longer hold sway in numerous respects. Rulesthat allowed for fathers to contract binding marriages for theirminor children of either sex no longer persist. Apologetic discourses stress wives’ sexual rights while downplaying theimportance of wifely obedience. In fundamental respects, insocial practice at least, the understanding of Islamic marriagehas shifted. Yet there has not been a coherent alternative to theclassical understanding of marriage as a fundamentally gender-differentiated institution which presumes, at least at some level,male authority and control.
Dower, which holds a central place in the legal structureof marriage and in the social practice of some Muslim commu-nities often takes on a merely symbolic form among AmericanMuslims. Adhering to the symbolism comes at a price, however.If dower is meant to be an economic safety net for women, thena more useful approach would depend on factors other thanconsummation, such as length of marriage, contribution to thehousehold economy, wages lost and earning potential dimin-ished during childbearing and caretaking,and so forth.Feministassertions that women do not have any Islamic obligation toperform domestic services or childcare may have the ironiceffect of devaluing those contributions. Although stress on thevoluntary nature of women’s performance of domestic dutiescan highlight their significance, this recognition that dower doesnot compensate for a wife’s household contribution is not usu-ally accompanied by a discussion of precisely for what it is thatdower compensates a woman.
Discussions about dower, spousal rights, and intermar-riage must occur in the context of a broader consideration ofwhat men and women contribute to marriage and to the family,including the recognition that most American Muslims do notmaintain the separate asset regime assumed by classical law andthat complete male economic responsibility is more theoreticalthan actual. Perhaps one positive outcome of the neo-traditionalvision of the wife providing homemaking and childrearing services in exchange for male providership could be the dissoci-ation of sex from support; if sex is no longer the wife’s maritalduty, then it could become a fully mutual right. This does not
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resolve the problem of how to deal with the double-shift thatemerges when women work outside the home to provide partialsupport for the household without the husband taking over aportion of the household duties, but it might be more reason-able to see those duties as less explicitly gendered than the others. If some Muslims want to adopt a provider/homemakerdivision of labor that provides some kind of economic independ-ence for women, that ought to be negotiable. But the pretensethat such a structure, and only such a structure, is religiouslylegitimate avoids the reality that many Muslims organize theirlives differently, as well as the real incompatibility of classicaldefinitions of male and female obligations with most contem-porary understandings of spousal roles in marriage.
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2God did not make lawful anything more repugnant to Him than divorce.Reported saying of the Prophet Muhammad, Sunan Abi Dawud1
A woman knows (that is, comes to know with certainty) that her husbandhas divorced her thrice; the husband denies having divorced her; and thewoman has not the ability to prevent the husband from (having access to)her person: it is permissible to the woman to kill the husband; because sheis helpless in preventing mischief to her person; and, therefore, it shall beallowable to her to kill him; but it is proper that she should kill him withdrugs, and not with an instrument of death; because if the woman shouldkill him with an instrument which inflicts wound, she shall be put to deathby way of kisas (or retaliation).Fatawa-I-Kazee Khan, Hanafi legal text2
The image of a husband repudiating his wife by declaring “I divorce you, I divorce you, I divorce you” has been one of themost persistent and negative stereotypes of Muslims.And while itdoes not tell anything resembling a complete story, this image hasa basis in reality. So-called triple divorce, while widely consideredblameworthy even among the earliest Muslims, is nonethelessstill practiced in many places. Recent controversies over its usehave erupted in India and in Malaysia. In the former case, the All-India Muslim Personal Law Board considered whether todeclare that all such triple pronouncements would be consideredto effect only a single divorce; in the latter case, the issue at stakewas whether such divorces were valid if delivered via text mes-sage.Both situations were complicated by the intricate and multi-layered relationship between civil and religious law,a tension thatexists within every Muslim community to a greater or lesser
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extent.3 Divorce is a contested issue for Muslims in nations wherepersonal laws are ostensibly religious as well as in those places,such as the United States,where civil law alone holds formal sway.Why is a husband’s unilateral, and extrajudicial, pronouncementof talaq so meaningful to Muslims who otherwise abide by civillaws? What are the structural considerations at stake in attemptsto make divorce regulations more egalitarian? How does thistreatment of divorce in the writings of the jurists relate to American Muslims? The premodern case, cited in this chapter’s epigraph, of a wife whose husband has pronounced the powerfulwords of divorce but refuses to admit having done so, renderingthe state powerless to intervene and forcing her to resort to poison to thwart his sexual advances, has surprising relevance tocontemporary discussions on the relationship between individ-ual acts, ethical practice, and enforceable law.
Untying the knot
Its religious dimensions notwithstanding, Muslim marriage is,above all, a contract. Though it will persist until death if neitherspouse takes action to dissolve it, a marriage can also be endedbefore that time. There are both good and bad reasons for end-ing a marriage,according to Qur’an, sunnah, and the opinions ofthe commentators and jurists, and good and bad ways to pro-ceed with divorce whatever the motivations behind it. It is a wellaccepted principle that disharmony between spouses should notlead immediately to divorce. The Qur’an advocates reconcili-ation where possible, through negotiated settlements betweenthe spouses themselves or arbiters from their families.4 How-ever, there will be instances when mutual good treatment is notpossible; in such cases, there should be an amicable parting. Thisnegotiated settlement may involve the wife’s payment of a sumto her husband; normally, in case of talaq, he must not take backanything of what he gave her as dower.5 The Qur’an contains avariety of regulations concerning these and other forms ofdivorce (such as the now-obscure zihar and li‘an), which builton and modified pre-Islamic Arab practices.
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The English term “divorce” encompasses several meansof ending a marriage that are distinct in Islamic jurisprudence.The most common, talaq (literally, “release”), is a unilateralrepudiation of the wife by the husband. This form of divorcedoes not require the wife’s consent, and most of the classicaljurists held that it was valid even without her notification. Talaqcan be either revocable (raj‘i) or irrevocable (ba’in). In a revoca-ble divorce, the husband has the right to take back the wife during the three menstrual cycle waiting period (‘idda) that fol-lows the dissolution of all consummated marriages.6 However,following the end of the waiting period from a revocable divorce(or after an irrevocable form of dissolution such as judicialdivorce or divorce for compensation, on which see below), thecouple can still remarry. This is the case even after two divorces.However, when the husband repudiates the wife for the thirdtime, the divorce becomes “absolute.” In this case, the spousescannot remarry until the wife has married another man,and thatmarriage has been consummated, then ended through death ordivorce. Only after this can the original spouses remarry.7
Triple divorce, talaq thalatha, occurs when a husbandpronounces three repudiations at once rather than divorcing hiswife once, revocably, and simply allowing the waiting period toexpire without taking her back. In this way, he immediatelymakes his divorce of her absolute, creating a bar to remarriagebetween them. The Sunni jurists generally consider triple repudi-ation, or other similar pronouncements that lead to absolutedivorces (talaq al-batta), to be reprehensible (makruh).Yet evenwhile considering such divorces blameworthy, the vast majorityof Sunni thinkers – Ibn Taymiyya is a notable exception – holdthat they are effective and binding. (Shi‘i jurists hold a muchmore restricted view of what means of divorce are legally valid,requiring, not merely preferring, the presence of witnesses, andconsidering only one pronouncement of divorce at a time valid.This dramatic difference illustrates quite clearly that Sunni doc-trine was the result of interpretive decisions, and could havebeen otherwise.8)
Just as marriage has financial implications, so doesdivorce; in fact, they are closely intertwined. A wife divorced by
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talaq retains the dower she received at marriage or, if it wasdivided into a prompt and deferred portion, the deferred por-tion becomes immediately due at divorce. Predictably, theprospect of receiving or having to pay a large deferred sum canserve as inducement or restraint on a spouse’s actions. Somewomen set a large deferred dower as a disincentive for their hus-bands to divorce them impulsively. However, this strategy canbackfire if the wife is the one to seek a divorce. In khul‘, divorcefor compensation, a wife returns her dower, waives the deferredportion, or pays some other sum to her husband in order toobtain a divorce.Almost all jurists consider his consent essentialthough it is not mentioned in the Qur’an or in some of theprophetic traditions that refer to it. Khul‘ is by definition irrev-ocable; the husband has no right to take her back during thewaiting period, though the pair may remarry subsequently bymutual consent with a new contract and dower.9
In addition to unilateral repudiation and divorce forcompensation, both of which are mentioned in the Qur’an,judicial divorce ( firaq, faskh or tatliq) becomes permissiblewhen the wife has cause. Judicial divorce is preferable to khul‘ fora wife who has grounds because she need not relinquish herclaim to dower. Acceptable grounds for divorce vary widelyamong the legal schools. In the Hanafi school, which is the mostrestrictive, a woman has almost no grounds for obtaining adivorce provided her husband has consummated the marriage;neither failure to support her, nor life imprisonment, nor abuseis considered grounds for divorce (although she may get a sep-aration and support if she convinces a judge). If he is declaredmissing, she may have the marriage dissolved (on grounds ofpresumed widowhood) at the time when he would have com-pleted his natural lifespan, which could be as old as ninety. Incontrast, Maliki law allows the most generous grounds for awoman to seek divorce including non-support, abandonment,and the broad charge of “injury” (darar), which can be physicalor otherwise.
Women can use other legal strategies to obtain access todivorce without recourse to a judge. For instance, in conditionalor delegated divorce the wife includes a condition in her
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marriage contract that allows her the right to divorce on her owninitiative under certain specific circumstances, or states that shewill be automatically divorced if a particular event occurs suchas the husband taking another wife or moving to another town.There are possible benefits to these types of stipulations, ifwomen have the requisite knowledge and are willing and able toconvince future spouses to agree to the conditions, but they arenot a panacea for inequalities in traditional divorce law. Theextent to which such clauses in the marriage contract areenforceable varies widely in legal schools or contemporarynational laws. Further, even clauses that were originally valid can be easily rendered ineffective through the wife’s unwittingactions. More troubling still is that though these conditions canincrease a woman’s access to divorce, they do not restrict in anyway the husband’s right to repudiate her unilaterally at will. Theincreasingly influential view of marriage as a romantic ratherthan contractual institution often makes women unwilling tonegotiate for or demand stipulations in their contracts, seeingthem as a sign of bad faith.10 In any case, the inclusion of suchstipulations regarding divorce ratifies the notion that unilateraldivorce by the husband is valid and effective, since conditionaland delegated divorces function through the mechanism oftalaq. Thus, it is contradictory to press for such stipulationsregarding divorce while simultaneously arguing that a hus-band’s right of unilateral talaq is not supported by the sources. Ifhis talaq is not valid, then any conditional or delegated divorceright she has is equally void. (One way to avoid this conflict is toinsist that the only permissible divorce is a judicial divorce;however, this raises its own set of issues surrounding the valid-ity of civil law versus religious law.)
This sketch of legal doctrine seems to provide a fairlybleak picture for Muslim wives, but a number of historians havedemonstrated that in practice women have enjoyed a good dealof flexibility in obtaining divorces on favorable terms, thanks tosympathetic judges and a variety of bargaining strategies, fre-quently involving claims to dower, maintenance, and custody ofchildren. Looking at the way “Islamic family law translate[d]into the reality of medieval marriage,” Yossef Rapoport finds
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that women’s economic independence, among other factors,facilitated woman-initiated divorce, although the unrestrictednature of male oaths of repudiation contributed to the highdivorce rate.11 Twentieth-century legal reforms in nations suchas India, Egypt, and Iran (both pre- and post-revolution) havesometimes dramatically improved women’s access to divorceand have, to a lesser extent, penalized men’s unrestricted use oftalaq. The progress of such reforms has been hampered by con-tinual struggles over “authenticity” and the self-aggrandizingtendencies of the modern nation-state to work to bring every-thing under its control. The relationship between civil and religious marriage and divorce is complex even in nations suchas Pakistan, where both are ostensibly Islamic, but for Muslimsin primarily non-Muslim societies the dictates of classical legalthought, as they have trickled down into conventional wisdom,remain influential.12
Extreme circumstances
The regulations surrounding divorce that I have just outlined donot directly account for the extreme case, mentioned in thischapter’s epigraph, where Qadi Khan gives a woman permissionto defend herself against her former husband’s sexual advanceseven to the point of killing him – discreetly:
A woman knows (that is, comes to know with certainty)that her husband has divorced her thrice; the husbanddenies having divorced her; and the woman has not the ability to prevent the husband from (having access to)her person: it is permissible to the woman to kill the husband; because she is helpless in preventing mischiefto her person; and, therefore, it shall be allowable to her to kill him; but it is proper that she should kill him withdrugs, and not with an instrument of death; because ifthe woman should kill him with an instrument whichinflicts wound, she shall be put to death by way of kisas(or retaliation).13
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This fatwa attempts to resolve an intractable problem.By divorcing his wife three times, the man has rendered herabsolutely divorced from him, making sexual relations betweenthem completely unlawful. However, his denial of the divorce isaccepted as final.14 (The legal efficacy of his declaration is takenfor granted; the reponse does not even allude to it.) What, then,may his “wife” do in this case? She is certain of having beendivorced and that therefore it is no more lawful to allow her hus-band to have sex with her than it would be for her to allow astranger access to herself; her (former) husband is at this pointlegally a stranger. Failing to resist him in some fashion would bemorally, if not legally, tantamount to consenting to illicit sex; shehas the right (or perhaps obligation) to defend herself againstsuch an attack, even to the point of killing her would-be rapist.What might be a mundane evidentiary dispute over whether ornot a divorce has occurred becomes a life or death issue.
In allowing the woman to pursue the dictates of reli-gious law and her conscience, Qadi Khan recognizes a distinc-tion between the law applied by God, which grants the womanthe right to defend herself against his advances, and that fol-lowed as a matter of procedure by the state, which, bound as it isby procedural rules, is only an approximation thereof.Althoughthe man in question is trying to have sexual access to a womanover whom he no longer has any sexual rights, he cannot bebrought before the authorities as a rapist, because the law asapplied by the state authorities would still recognize him as herhusband. The text thus differentiates between the morally per-missible action – killing him – and the legally acceptable one.
This distinction between what is acceptable to God andwhat is acceptable to the state influences the solution arrived atby Qadi Khan, following Abu Hanifa: the woman may kill her“husband” provided she does so with “drugs,” not a “weapon.”Why is poisoning acceptable, while killing in some other fashionis not? Although Qadi Khan may have been influenced by theview that it was unladylike to kill using a weapon, the moresalient rationale is that if she were simply to kill him by stabbing,for example, the fact of his having died an unnatural deathwould be obvious, and a culprit would be sought and punished.
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It is not fair that a woman should be subject to execution inretaliation for having defended herself against sexual assault,but she has no way of proving what transpired. Her testimonythat she killed in order to avoid his attempt to have intercoursewith her after he had divorced her absolutely would not be exon-erating in this circumstance, just as it would not be consideredadequate to prove her divorce itself. Thus, one can deduce thatQadi Khan grants permission to poison the ex-husband in orderthat his unnatural death escape detection. If it does not becomeknown or cannot be proven that he has been deliberately killed(as would most likely be the case before the introduction ofsophisticated forensic methodologies), then her actions will notcome under scrutiny, she will not have to provide justificationfor them, and hence the issue of the reliability or legal worth ofher testimony as to her motive for killing him – the fact of hishaving divorced her and denying it – will not come up.
Prominent seventeenth-century Palestinian Hanafi muftiKhayr al-Din al-Ramli’s treatment of a similar case confirms thisanalysis. In this instance, “an evil man who harms his wife, hitsher without right and rebukes her without cause” has, afterswearing to divorce her “many times”, finally done so. When sheis able to demonstrate “that a thrice divorce had taken effect,”themufti declares that “it is permissible for her to kill him,accordingto many of the ‘ulama’, if he is not prevented [from approachingher] except by killing.”15 Because the divorce is proven, she isgranted permission to kill him if he attempts to have sex withher. The juxtaposition of these two fatwas illuminates the exist-ence of two distinct types of legal rules. Those that govern thewife’s ability to kill her husband in the case addressed by QadiKhan, where she cannot prove the divorce, can only be moral –she will be absolved of guilt in this case, and will not have toanswer to the divine for a transgression. However, though herkilling him is religiously licit, if she is brought before temporalauthorities, she will be subject to retribution because her testi-mony cannot be accepted on this question. In Khayr al-Din’scase, however, the divorce is proven; the woman’s ex-husband islegally a stranger and she can defend herself against his advanceseven to the point of killing without fear of retribution.
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In Qadi Khan’s fatwa, the entire matter revolves aroundthe inadmissibility of the wife’s testimony. Why is it that a wife’stestimony cannot be accepted regarding talaq? It is not, as mightbe supposed, an issue of women’s testimony having less weightthan men’s but rather an issue of “plaintiff” and “defendant.”Although one Qur’anic verse attributes different weight to maleand female testimony, and jurists have further limited the rangeof cases in which women can testify, in numerous matters related to marriage the words of husband and wife are equiva-lent. Yet in discussing the wife’s response, Qadi Khan does noteven suggest that there might be any possible way for her to seekjudicial recognition of his divorce of her. Allowing women’sword to count with regard to their own divorces would open up the floodgates to women claiming to have been triply repudiated – likely to cause more trouble for the Hanafis in particular, given the extremely limited grounds on whichwomen could seek divorce.16 In Qadi Khan’s implicit calcu-lation of the relative harm in each case, to allow this man’s death is acceptable in a way that tampering with the overallweight of rights granted to husbands in matters of divorcewould not be.
The Hanafi solution, however, is not palatable to everyone. Moralistic traditionist-jurisprudent17 Ibn Hanbalconfronts the same question, several centuries before QadiKhan arrives at a different ruling. First, the wife should seek toransom herself from her husband in divorce for compensation.Though he does not say so directly, one can deduce that this ismerely a strategy to get him to recognize the divorce. It will haveno legal effect, since no marriage actually exists after his absolutedivorce. If her husband refuses to allow this but rather compelsher to remain “married” to him, “She should not adorn herselffor him, nor should she come near him, and, if she possibly can,she should escape from him.” Asked specifically “Should shefight him, when he desires her?” Ibn Hanbal hesitates. “I do notknow,” he replies. “She should not fight him. Abu Hanifa said she should fight him. She should escape from him if she can.”18
The wife here has the obligation to resist sex, but this should be accomplished by non-combative means. Ibn Hanbal’s
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invocation of Abu Hanifa’s view perhaps serves to give his listener an option beyond what he is willing to endorse.
The burden is on the woman to place herself out ofreach, sexually, whether she hears the divorce pronouncementherself (according to Ibn Hanbal, “Her case is strongest” in thisinstance) or hears the testimony of two witnesses who can betrusted. In a case where there were witnesses, presumably shecould have used their testimony to establish that her husbandhad in fact divorced her.Perhaps in this case her escape is a short-term measure until the witnesses can give testimony publicly tothe fact of her divorce, resulting in the clarification of her mari-tal status. If there are no witnesses, she has even stronger justifi-cation for escaping. But what exactly does it accomplish in thatcase? Ibn Hanbal does not say, as the text moves on to discuss anunrelated matter. If a woman escapes, presumably back to hernatal kin, what happens to her marriage if her husband con-tinues to insist that he has not divorced her? She loses her right tosupport and remains unable to remarry – though she avoids thecollusion in illicit sexual acts, she cannot end her marriage(while her erstwhile husband is free to take another wife). Unlikein the Hanafi scenario where she kills him, she remains tied tohim until and unless he acknowledges dissolving the marriage.
Cases such as those just discussed are extreme, not rep-resentative. Though judges were undoubtedly faced regularlywith “claims and counterclaims” regarding the occurrence ofdivorce, it is impossible to know whether any particular caseever resulted in killing.19 One of the limitations of working withlegal handbooks and compilations, rather than archival docu-ments, is that it is not possible to determine what discussions arein response to actual events and what is merely hypothetical.Particular scenarios can garner jurists’ attention far out of pro-portion to their likelihood of occurring, simply because inresolving the legal issues at stake, challenging legal points can beillustrated or clarified. My choice of this dramatic example todiscuss divorce was meant to illuminate, in a tangible way, theextensive, unilateral privilege held by husbands in the realm ofdivorce. Only once this is understood can contemporary discus-sions of talaq and its reform be more fully comprehended.
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Prospects for reform
Reforms to divorce laws in the contemporary Muslim worldhave been plentiful.20 Most of these reforms have attempted toeither restrict men’s unfettered exercise of their rights to talaq orto increase women’s access to divorce for cause. Some majoritySunni nations have accomplished the first aim by requiring sometype of intervention or registration from a judge, or by declaringthat three repudiations pronounced at once will count as onlyone divorce, as in the recent Indian debate.21 Other nations, suchas Iran, have imposed financial penalties on a husband whodivorces his wife without cause. Despite these attempts to curbmen’s impulsive and extra-judicial use of talaq, almost all courtsultimately consider talaq pronouncements legally effective sincethey are recognized by religious authorities. The widely heldview that a husband’s pronouncement of talaq is religiously validregardless of whether approved by a court, and regardless ofwhether or not it contravenes provisions of civil codes, consti-tutes a major stumbling block for efforts to reform divorce law inthose nations where putatively Islamic family codes hold sway.In some ways, the codification of marriage and divorce laws hasreduced the flexibility that women of the upper classes may haveenjoyed in the past.22 Though reforms have altered some of thespecifics of divorce laws, they have not challenged the basic ideathat divorce is a man’s prerogative, while women may onlyobtain divorce for cause.
A more recent Egyptian law, approved by the chief juristof Al-Azhar, the most respected institution of traditional learn-ing in Egypt and perhaps the entire Sunni Muslim world, pro-vides an alternate approach.As noted above, the vast majority ofpremodern jurists as well as contemporary national laws haveconsidered the husband’s agreement essential to khul‘, divorcefor compensation. Beginning in March 2000, Egypt granted the wife the right to obtain a khul‘ divorce from a judge withoutthe husband’s consent if she returns the dower she received atmarriage.23 Judicial khul‘ has been legal in Pakistan since themiddle of the twentieth century, meaning that a wife who doesnot have effective grounds for divorce for cause may seek this
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type of divorce, returning her dower and getting out of a mar-riage in which she refuses to remain.24 Similar legislation has yetto pass elsewhere, but I think it likely that eventually morereforms of this type will pass; khul‘-on-demand is the most egalitarian reform possible without a major transformation ofthe legal structure of marriage. It is reasonably fair, given the roleof dower, that women cannot collect dower and then proceed todivorce without any fault of the husband’s. To the extent,though, that women who have grounds for judicial divorce maybe induced to forgo financial rights in order to obtain khul‘ itcould lead to injustice. Uncontested khul‘ has faced serious resistance wherever it has been proposed, as a violation of thehusband’s rights.25 Women, it has been alleged, are too emo-tional to wield control of divorce.26
In the case of Muslims living in the United States andother nations where Islamic law is not implemented by civilcourts, the relevance of modern legal reforms is minimal; andclassical Islamic doctrine matters only where individuals take itinto account in extrajudicial interpersonal negotiations. Whileit is relatively straightforward to combine an “Islamic”marriagewith a civil one – religious authorities are frequently authorizedby state legislatures to perform valid civil marriages – only thecivil courts may pronounce divorce. A couple married both reli-giously and civilly can be in the awkward position of being onlycivilly divorced (if the wife insists on the necessity of a divorcepronouncement that the husband refuses to make) or only reli-giously divorced, if the husband pronounces talaq long beforethe civil court takes action. For the most part,American Muslimleaders have chosen to treat a divorce pronounced by the courtsas the equivalent of judicial divorce in classical Islamic law, butthe coexistence of civil law with an amalgam of jurisprudentialdoctrines and Muslim conventional wisdom makes for a con-fusing situation. Further, for those committed to egalitarianmarriages, the existence of talaq as a religiously acceptable insti-tution creates obstacles to full marital agency for women.
Talaq is so problematic because it is an entrenched rightconnected to the legal structure of marriage as a form of milk,ownership or control. A husband’s power of talaq derived from
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his exclusive control over the marriage tie, just as a master’spower of manumission resulted from ownership of a slave. Pre-modern jurists frequently drew analogies between talaq andmanumission (‘itq), reflecting their shared understanding that ahusband, like the master of a slave, held milk, “ownership,” overthe tie joining the parties. This right was basic to the nature ofmarriage: the husband acquired a limited milk over his wife at thetime of contract through payment of a dower, just as a masteracquired milk through purchase of a slave; either could unilat-erally relinquish it whenever he chose.The wife,as the one boundby the marriage tie, did not share in this power of unilateraldivorce (any more than a slave could simply choose to free him- orherself). Instead, her opportunities to dissolve the marriage werelimited to judicial divorce for cause, grounds for which variedgreatly depending on the school; delegated divorce if authorizedby her husband; and khul‘, divorce for compensation, which wasroughly analogous to a slave’s negotiated purchase of his or herown freedom. Of course, the analogy can only be carried so far: awife was not her husband’s slave. But because the structure of theIslamic marriage contract presumes the husband’s milk, control,over the continuation of the marriage, piecemeal reforms ofdivorce laws that do not address this basic norm will be limited inthe amount of change they can ultimately effect. Long-lastingand far-reaching reform of divorce requires, more fundamen-tally, a reform in the basic structure of Muslim marriage itself.
Conclusion
In many countries, the primacy of civil law over “Islamic law”has been accepted in numerous realms of law, including com-mercial, but the repeated appeals by various actors to theauthenticity of Islam with regard to rules regulating family lifeand sexuality has meant that in matters associated with womenand family, regulations are still purportedly “Islamic.” Muslimsliving someplace where there is a civil system of marriage anddivorce with no pretensions to being based on a religious lawface different challenges. In the United States, courts deal
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routinely with divorces among Muslims; divorces are granted toboth wives and husbands on the same grounds available to anyother couple. The regulation of divorce is fraught with difficul-ties because, aside from the interpersonal challenges, it is normally interwoven with other crucial elements of marriagestructures, including who has the right to dissolve the marriageand with what financial claims. Despite claims by a number offeminist scholars and women’s advocates to the contrary,inequities in divorce law – which many Muslims would agreeexist – are not merely read into the Qur’anic text by misguided oreven misogynist jurists. They are not anomalies that can be rem-edied by the simple expedient of appeals to men’s better nature.The necessary shift in patterns of talaq must recognize that it isdeeply embedded in Muslim marriage as a whole system.
Perhaps a sensible marriage and divorce structure forMuslims living in nations such as the United States,where doweris not a customary part of marriage practices among the broader population and where all divorces must go through thecourts, might exclude both dower and all forms of extrajudicialdivorce – claims that are closely linked in traditional jurispru-dence. It would be possible to make financial arrangements aswell as other household contributions the subject of a prenup-tial agreement validated by the American legal system, and insistthat civil marriage and divorce are the only licit forms of rela-tionship. If marriage is structured in such a way that it can bedissolved only by a judge, whether by mutual consent or other-wise, that would eliminate much of the dual-system conflictsover the validity of unrecorded divorce pronouncements innumerous Muslim-majority countries. This is not entirelyunheard of: one lesson of Qadi Khan’s case, in addition to theone about the male abuse of authority, is that state authority canoverride certain jurisprudential doctrines, even as those doc-trines guide individual life and action.
Appeals to religious sensibilities have emerged in sev-eral attempts to entice North American Muslims to participatein shari‘a tribunals or parallel mediation/arbitration systems.27
Such tribunals, though undoubtedly well meant, would likely bedisastrous for women’s rights, even leaving aside the fact that
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there has not been substantive discussion as to how to guaranteethe qualifications of those assigned to arbitrate. At best, womenmight get a sympathetic interpretation of doctrines understoodto be Islamic, but it is highly unlikely that they would get sophis-ticated modifications of legal rules. My objections to the forma-tion of Islamic law courts in the West do not extend to individualMuslims choosing to follow particular legal doctrines in their personal affairs (what Abdullahi An-Na’im refers to as “voluntary compliance out of religious commitment”28) or with “independent scholars providing moral guidance to their com-munities on [a] private voluntary basis.”29 And it is certainlypossible to write contracts that enshrine religious rights andduties for spouses – at least financial ones – in a way that makesthem enforceable by Western courts.30 Individuals should befree to negotiate those contracts, with as much information aspossible about both classical and reformist interpretations ofrights and obligations. However, if consenting to participate inIslamic arbitration becomes possible on a wide scale, it will alsobecome a mark of faith, and those who choose not to will have tocontend with accusations of not being good Muslims,when theymay simply not believe that a shari‘a court is capable of provid-ing a realistic and appropriate rendering of Islamic principlesinto a just verdict in a context radically different from that wherethe law was first formulated.
Setting aside the influence of human historical factorson the development of the law, there is also the question of thecontextuality of the Qur’anic revelation itself. Despite the reflexive praise for Islamic legal flexibility, there is a broad unwill-ingness to interfere with elements of marriage practices, such asdivorce, that are explicitly referred to in the Qur’an. But are theverses on divorce meant to apply in every possible situation, orare they specific in some way to seventh-century Arabia? If theycan be modified, on what basis should one do so, and how far canone go in altering specific rules? What is taken as common senseby many ordinary Muslims (the twenty-first century West isquite different from either the seventh-century West or the con-temporary Muslim world and hence rules should be different) isstill controversial for numerous Muslim leaders and scholars.
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3A free man may marry four free women and female slaves, not more, andhe may take as many concubines as he wishes from among his femaleslaves. If a man has four free [wives] and a thousand concubines andwants to buy another [concubine] and a man reproaches him for that, itwill be as if [that man] had committed unbelief. And if a man wants totake a concubine and his wife says to him “I will kill myself,” he is not pro-hibited [from doing so], because it is a lawful act, but if he abstains to saveher grief, he will be rewarded, because of the hadith “Whoever sympa-thizes with my community, God will sympathize with him.”Muhammad ‘Ala al-Din Haskafi, seventeenth-century Hanafi jurist, Al-Durr al-Mukhtar 1
Prior to the abolition of slavery in the nineteenth and twentiethcenturies, marriage was not the exclusive mode of licit sexualrelationship in most Muslim societies. Instead, throughoutIslamic history, slave concubinage was practiced by those menwho could afford it.Though several features of the finalized regu-lations governing the possession and use of female slaves wereunique to Muslims, the use of female slaves as sexual partners wasan accepted practice in most of the ancient Mediterranean andNear Eastern world where Islam originated. Indeed, in seeking toestablish friendly relations with the Prophet Muhammad, theByzantine commander of Alexandria sent him two enslaved sis-ters as a gift, along with a donkey and other goods. MedievalMuslim tradition records that the Prophet took one of theseyoung women, Mariyya, as his concubine, eventually freeing herafter she bore him a child.2 The fact that a seventh-century Christian figure saw nothing amiss in sending a female as a gift to
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a powerful leader demonstrates the general acceptance ofwomen and girls as sexual commodities in the ancient world. Inpre-Islamic Arabia, as well, female captives were frequently usedas sexual partners, a practice agreed by early Muslim interpretersto be sanctioned in the Qur’an’s repeated references to the permissibility of men’s sexual relations with women “thattheir/your right hands possess”(ma malakat aymanuhum/kum).
Ownership of slaves in general, and female slaves in par-ticular, was referred to in non-Qur’anic texts as milk al-yamin(“ownership by the right hand”), and the same phrase was usedto denote the slaves themselves (“property of the right hand”).Unfree women were also called ama3 (female slave), jariyya(“slave girl;” also sometimes used for a young girl), and suriyya.4 The latter term especially was used for concubines,those slaves with whom their masters maintained special sexualrelationships. Concubines often received additional privileges –better quality food and clothing, and usually exemption fromduties of household service – and were subject to additionalrestrictions, usually related to keeping them exclusively avail-able to their masters. The status of concubine was informal,however; law and custom allowed a master to have sex with anyof his (unmarried) female slaves. It was also insecure: a concu-bine could be freed and married by her owner, or she could besold off, so long as he had not impregnated her.
While the Qur’an accepts the notion of men’s sexualaccess to some unfree women – whose social, if not legal, statusmay have been ambiguous, according to Ingrid Mattson5 – itdoes not explore the possibility of large-scale concubinage, norwas such practiced in the first Muslim community. Some modern authors have argued that only through marriage didsexual access to captive or enslaved women become permissible,but this is not the view that the medieval jurists took, nor, if oneaccepts the hadith sources as historically accurate, was it thepractice of the first Muslim community; records show that theProphet as well as a number of Companions and Successors hada concubine or two. However, after the Arab conquests of theseventh and eighth centuries, when the wealth of the Muslimelite increased dramatically, rulers mimicked their non-Muslim
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Sassanian predecessors, keeping dozens if not hundreds offemale slaves, of whom many were used for pleasure.
The widespread availability of female slaves as sexualobjects had dramatic implications for the development ofMuslim thought on sex and marriage,6 even if, in practice, the“harem” culture of the elite bore little resemblance to the prac-tices of the majority of the populace. Prominent eighth-centuryjurist al-Shafi‘i voiced the consensus legal view when he statedthat a man could take as many concubines as he wished, sinceGod did not restrict this in any way, while God forbade takingmore than four wives.7 This sentiment was conventional juristicwisdom for a millennium, as evidenced by the remarks ofHanafi Mufti of Damascus, Muhammad ‘Ala al-Din Haskafi, inthe late seventeenth century, to the effect that suggesting that aman with a thousand concubines should not take another wastantamount to unbelief.
Though large-scale ownership of female slaves for sexual use was an elite-only practice, slavery was a social fact inmost of the Muslim world with many slaves employed indomestic service as well as commerce from origins of Islam untilabolition was decreed in the late nineteenth and twentieth centuries. Large-scale agricultural slavery, like the plantation slavery of the U.S. South, was seldom practiced in the Muslimworld.8 This was not due to any prohibition against such formsof slave labor, but rather to economic and geographical factors.This does not mean that Islamic slavery was not harsh, as someapologists have argued, or that masters were not sometimes brutal to their slaves. Paradoxically, slavery did not always equallow social status. In medieval Egypt, the Mamluk (literally,“owned”) dynasty ruled for some time, with manumitted mili-tary slaves rising to govern others. The conscript slave troops(janissaries) of the Ottomans are another example. Most strik-ing is the case of the royal concubines who wielded tremendousinfluence and amassed considerable wealth in the later centuriesof the Ottoman empire.9
Slavery in Muslim societies was not merely a medievalpractice; it has lingering contemporary effects, especially in cer-tain parts of Africa and the Gulf states, regions that were the
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world’s last to outlaw slavery, with Saudi Arabia becoming thefinal nation to do so in 1962.Vestigial effects of domestic slaverypersist in certain Gulf nations in the failure of police and law-makers to protect immigrant household workers against poten-tial abuses by employers.10 Female “guest workers” employed asmaids and nannies have little recourse against sexual coercion orharsh beatings; in some cases, those who have escaped andsought refuge with police have been forcibly returned to theirabusive employers.11 Such women are not legally enslaved, andthey generally receive compensation for their work that differ-entiates their situation from that of those in debt bondage.12
However, because of the acceptance of controls on their mobil-ity (employers often take their passports), and the refusal of lawenforcement officials to respond to complaints of maltreat-ment, they are particularly vulnerable to abuse. In some Africannations such as Mauritania, actual slavery continues despiterepeated declarations of abolition, the last in 1980; according toone recent report, 90,000 black Mauritanians remain essentiallyenslaved to Arab/Berber owners. In the Sudan, Christian captives in the ongoing civil war are often enslaved, and femaleprisoners used sexually, with their Muslim captors claiming thatIslamic law grants them permission.13
Islamic law is not the only salient frame of reference inthese cases, though, even if it is sometimes used as justificationfor enslavement and slaveholding. Although premodern juristspermitted slavery without qualms, they absolutely forbade theenslavement of other Muslims. Contrary to this principle,Muslim captives,usually from other ethnic groups,are sometimesenslaved in ongoing civil or tribal conflicts; Mende Nazer, aSudanese Muslim, recounts her own experiences of capture andenslaved domestic labor in the Sudan and the U.K., where sheeventually escaped her captors, in a chilling memoir.14 Thoughmost common in Africa, it occurs elsewhere; one scholar hassuggested that among the Taliban’s “atrocities” toward AfghaniShi‘a was “the enslavement of Hazara women as concubines.”15
The existence of actual and quasi-slavery is by no meansunique to the Muslim world; slavery and slavery-like practicesare found in numerous nations world-wide.16 Further, they are
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not found everywhere in the Muslim world; rather than “Islam”being the cause, there are specific socio-economic and politicalfactors that help to account for their existence. Still, the claimingof religious justification for slaveholding in some of these casesmakes them particularly urgent to address. Although the vastmajority of contemporary Muslims agree that there is no placefor slavery in the modern world, and some nineteenth- andtwentieth-century reformers such as Sir Sayyid Ahmad Khanopposed the practice, the pressure to abolish slavery generallycame from some combination of European colonial powers andeconomic and demographic shifts.17 A few Muslim clerics, suchas one writing in the mid-nineteenth-century Arabian penin-sula, opposed abolition on the grounds that slavery wasaccepted in religious texts.18 Similarly, one scholar argues “thatslavery enjoyed a high degree of legitimacy in Ottoman society.That legitimacy derived from Islamic sanction,” among otherfactors.19 Although abolition did eventually occur, there was nota strong internally developed critique of slaveholding based inreligious principles.
Modern Muslims, especially in the West, have devotedlittle attention to thinking about or discussing the religious,ethical, and legal issues associated with slavery, resorting insteadto apologetic and denial.20 Yet slavery, in norm and practice,dramatically influenced the development of laws regulatingmarriage, divorce, and sex that many Muslims consider bindingtoday. The existence of slavery during Islam’s early centuriesresulted in a complex set of linkages between marriage and slav-ery in Islamic law, both seen as forms of ownership, milk, thatlegitimized sex (in the case of slavery, only when the owner wasmale and the owned, female). Classical texts are replete withanalogies between dower and purchase price, and divorce andmanumission.21 These seldom acknowledged interrelationshipscontinue to affect regulations and mindsets surrounding marriage, divorce, and sex. The once ubiquitous conceptualvocabulary of ownership or dominion (milk) applied to slaveryis seldom used today to discuss marriage, and the previouslycommon parallels between husbands and masters as well as wivesand slaves have largely disappeared from learned discourse. The
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sexual ethics forged in slaveholding contexts, however, continueto be influential in ways that are often not fully understood.Understanding the historical and legal dimensions of Muslimslavery, particularly as regards sexual access, is a necessary pre-cursor to thinking through an ethics of sex. Reconsidering slaveconcubinage raises larger issues of the universality of revelationas well as substantial theological issues related to theodicy andwhether justice can be historically and culturally relative.
Islam and slavery: overview of sources and history
The Qur’an makes numerous references to unfree persons – ser-vants, captives, and slaves. These categories are not mutuallyexclusive, and frequently overlap.22 Like numerous passages inthe Hebrew bible and the New Testament, the Qur’an assumesthe permissibility of some individuals owning or controllingothers – “what their/your right hands possess” – which was anestablished practice in Arabia before its revelation. The Qur’andoes not explicitly condemn the practice of slavery or attempt toabolish it. Nonetheless, it does provide a number of regulationsdesigned to ameliorate the situation of those owned. It recom-mends freeing slaves, especially “believing” slaves,23 a mode ofclassification that presumes sufficient personhood on the partof those owned to have individual faith. Manumission of a slaveis required as expiation for certain misdeeds.24 Another versediscussing emancipation involves the initiative and qualities ofthe enslaved person, not merely the piety or expiation of theowner, stating that masters should allow slaves who demon-strate some good to purchase their own freedom.25 Jurists disagreed over whether this verse obliged a slave’s owner to grantsuch a request or merely recommended such action, but clearlyslavery was not always considered to be a permanent state for anenslaved individual.
The Qur’an also suggests certain means of integratingslaves, some of whom were enslaved after being captured in war,into the Muslim community, with special attention to inter-personal relationships. It allows slaves to marry other slaves or
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free persons26 and prohibits owners from prostituting unwillingfemale slaves.27 Despite this protection against one form ofsexual exploitation, female slaves were not granted an absoluteright to control sexual access to their own bodies.Rather, the textindicates that men may have lawful sexual access to “whattheir/your right hands possess.”28 On several occasions, theQur’an mentions this category alongside “wives”or “spouses”asbeing those to whom sexual access is licit, thus making clearboth the distinction between the two groups, who are men-tioned separately, and their joint status as lawful sexual partners.(Although in some instances these references are gender-neutral, the possibility that such verses permitted women’s, orfor that matter men’s, access to male captives or slaves was neverseriously countenanced.)
In the first generations of Muslims, there was ambiguityand variability in status among unfree women, with less cleardifferentiation between the pre-Islamic category of capturedwives and the Islamic category of female captives taken as warbooty and subject to sexual use.29 The hazy distinctions amongthose classified as “what your right hands possess” were subjectto refinement over time. The classical jurists elaborated signifi-cantly on the Qur’anic material concerning slavery, drawing onthe practice of the Prophet and the first Muslims as well as on thecustoms of conquered areas, as the Muslim empire expandedand solidified under the Umayyads and subsequently theAbbasids. Legal works from that era regulate the enslavement ofwar captives along with the purchase and sale of slaves. While itwas decidedly forbidden to enslave other Muslims, if a non-Muslim converted to Islam after enslavement, he or sheremained a slave and could be lawfully purchased and sold likeany other slave. (This rule, justifiable on the basis of theQur’anic praise of freeing “believing” slaves – meaning, the simple fact of belief does not itself free the slave – closes a poten-tial loophole allowing for slaves to gain their freedom throughconversion.) The jurists also prescribed penalties for slave owners who maltreated or abused their slaves, up to and includ-ing forced manumission of the slave without compensation tothe owner.
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Regulations for slave marriage and concubinage alsodeveloped over time, with special emphasis on rules to deter-mine the paternity and/or ownership of children born to afemale slave. A man could not simultaneously own and be mar-ried to the same female slave.30 The male owner of a female slavecould either marry her off to a different man, thus renouncinghis own sexual access to her, or take her as his own concubine,using her sexually himself.31 Both situations had a specific effecton the status of any children she bore. When female slaves weremarried off, any children born from the marriage became slavesbelonging to the mother’s owner, though her husband wasestablished as their legal father. When a master took his ownfemale slave as a concubine, by contrast, any children she borewould be free and legitimate, with the same status as any chil-dren born of a free wife. The slave who bore her master’s childbecame an umm walad (literally, mother of a child), gaining cer-tain protections. Most importantly, she could not be sold andshe was automatically freed upon her master’s death. Theseguidelines for the umm walad were not set forth in the Qur’an;they are frequently attributed to the caliph ‘Umar, though theProphet’s precedent in freeing Mariyya after she bore himIbrahim (who died in infancy) was, no doubt, influential.32
Mariyya al-Qibtiyya, or Maria the Copt, appears inmost premodern sources as a slave (ama or jariyya) owned bythe Prophet. Many twentieth- and twenty-first-century worksauthored by Muslims object to this portrayal, implying or out-right declaring that she was his wife. Take Henry Bayman’semphatic rejection of the view that Muhammad owned a concubine: “[T]he Prophet was legally married to all his wives,even to slave girls with whom he was presented. In Islam, notmultiple marriages but illicit sex – pre- or extramarital fornica-tion and adultery – is immoral. Islam limited the number offemale consorts to four (but recommended one), and with thisthe proviso that all were brought under the protective umbrellaof legal marriage.”33 Bayman’s statement is circular: by defin-ition, Muhammad was married to his wives; it is only throughmarriage that a woman becomes a wife. He means, presumably,that Muhammad was married to all the women with whom he
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had sex. Bayman thus connects the subject of concubinage tobroader questions about sexual morality in Islam: by insistingthat Muhammad did not simply have sex with “slave girls,” andassociating marriage with both lawfulness (“legal marriage”)and protection (“protective umbrella”), Bayman claims Islamicsuperiority in matters of sex. His assertion, though, confrontsmajor logical difficulties. He must either ignore the Sunni andShi‘i legal traditions’ permission for slave concubinage and thehadith evidence showing that the Prophet’s companions (if notthe Prophet himself ) had sex with female captives and slaves, orhe must deem both legal doctrine and Muslim history to falloutside the scope of “Islam.”
There is less revisionism and apology on the issue ofslave concubinage in works not written, or intended for con-sumption, by Westerners – Muslim and non-Muslim. Still, it isalmost unimaginable today by many Muslims that a sexual rela-tionship between a man and a female slave bound to him only bythe tie of ownership and not matrimony could be legal, muchless moral. And yet, since the Prophet is the standard for moral-ity, the exemplar of uprightness, the question of his actions –both personal and as a leader of Muslims – takes on importance.
Women, war captives, and withdrawal
Despite its intrinsic importance, in the absence of agreed uponcriteria for approaching the matter of prophetic sunnah on theenslavement of war captives and the ownership of slaves, authorsusually bypass the troublesome topic in silence. At times, how-ever, such silences scream for attention, as with Ghazi Algosaibi’spresentation of seven hadith with brief commentaries under thetitle Revolution in the Sunnah. Algosaibi – a Saudi who has pub-lished in a variety of literary genres, in addition to serving in various government posts – covers topics ranging from“Integrity in Political Life”to “Prevention of Cruelty to Animals”in this volume, translated into English and published in the U.K.Three of the seven deal in some significant way with women:“Women’s Role in Society (and in the Military!);”“The Rules of
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Proof Safeguard Rights,” which has to do with witnesses to illicitsex; and, my concern here, “Family Planning.” Although ostens-ibly concerned with the “revolutionary” words and deeds of theProphet, in order to focus on these themes Algosaibi ignoresother elements in the stories he tells that are deeply troubling forthose Muslims committed to a view of Muhammad as inerrantlyjust and protective of the weak and defenseless.
Revolution in the Sunnah is a fitting title for his book,Algosaibi explains, because the hadiths he recounts were revolu-tionary in their original Arabian context, and “continue to represent a real ‘revolution’ against the outmoded and discred-ited practices prevailing in these areas of life in some, if not thevast majority of, Muslim countries.” By making a distinctionbetween “Islam” and “culture,” although not in so many words,Algosaibi’s objective is to prove that instead of “need[ing] toimport reform from abroad,” Muslims can find the necessaryresources for reform within Islam, “provided the opportunisticselectivity with which Islam is practised in Muslim countries isbrought to an end.”34
Algosaibi’s objection to “opportunistic selectivity” isironic, given that he displays precisely that quality in his discus-sion of the hadith that he chooses to illustrate his point aboutfamily planning. Quoting on the authority of “Abu Said al-Kh[u]dri:”
We went out with The Messenger of Allah (pbuh) on theexpedition to the Bani al-Mustaliq and captured some con-cubines35 [as part of the spoils]; and we desired them, forwe were suffering from the absence of our wives, and wewished to have sexual intercourse with them, observing ‘azl(coitus interruptus […]). But we said: “We are doing an actbefore asking the Messenger of Allah who is amongst us?”So we asked the Messenger of Allah, and he said: “It doesnot matter if you do not do it, for every soul that is to beborn up to the Day of Resurrection will be born.”36
The Prophet’s reported words here are sometimesreported with slight variation in other versions of this story;
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sometimes he affirms that no soul that God has decreed to comeinto existence will be thwarted. Muslim scholars debate back andforth over whether the Prophet’s words mean one may practicewithdrawal, but should not, or whether they grant permissionwithout taint of disapproval, serving only as a warning that con-ception may occur despite the measure taken to avoid it. Themoral status of withdrawal as an act was of significant enoughconcern to the victorious Muslim combatants that they asked theProphet about it. The permissibility of sex with the captivewomen was taken for granted by all the men involved, includingthe Prophet himself. (There is no indication what the capturedwomen thought, or the wives of the men involved.) Not only dothe Prophet and the soldiers ignore the question of the women’sconsent or lack thereof, but so does Algosaibi, focusing solely oncontraception in his discussion of this hadith.37
The issue of female captives and their treatment cannotalways be ignored in such a glaringly obvious way.When directlyconfronted, in a polemical context, with historical and textualpermission for the sexual use of unfree women, Muslim authorssometimes respond defensively, seeking to protect Islam’s repu-tation. It may be argued, for instance, that Islamic “slavery”boreno resemblance to harsh American chattel slavery. In this view,the Qur’anic permission for men to have sex with “what theirright hands possess” was merely a way of integrating war cap-tives into society. Sometimes, it is added that the captives wouldbe “integrated” into the Muslim community through becomingthe property of a specific man who would be responsible forthem and their offspring. Whatever merit these arguments havein the context of inter-communal polemics and apologetics,however, they are insufficient for internal Muslim reflection. Inparticular, the notion that women would be integrated intosociety by bearing offspring to their owners or captors does notapply to the case of the Bani Mustaliq: the rationale for the cap-tors to practice withdrawal, according to other accounts, is thatthey did not want to impregnate the women lest they spoil theirchances to ransom them.38
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 instanceswhere Prophetic sunnah, classical jurisprudence, and modernnotions clash. Attempting to assess an event such as the captureof women from the Bani Mustaliq (assuming one accepts thehistorical 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 beincompatible 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 timea man came into possession of a captive or slave, he had to waituntil she had a menstrual period before having intercourse withher, in order to determine whether she was already pregnant?40
The Prophet’s reported permission for the Muslim captors topractice withdrawal with their female captives does not take anynotice of this point. It has been suggested that the fact that theProphet’s reported action does not take account of the need fora waiting period is evidence that Abu Sa‘id al-Khudri’s accountis wrong; the Prophet could not have allowed the men sexualaccess to the captives. This apologetic account seeking to deflectthe accusation of impropriety makes the error of assuming thatlater legal doctrine cannot impose a requirement that was notgrounded in the Prophet’s actions. As an historical point, justbecause the jurists required something does not mean that theProphet did it; likewise, just because the jurists allow somethingdoes not mean the Prophet did. Still, another hadith included byAbu Dawud in his Book of Marriage records the purportedwords of the Prophet in asserting that men must wait to have sexwith captive women until they have menstruated once, and stillothers forbid men to have sex with women pregnant by othermen. A similar issue arises regarding the religion of the captivewomen, 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 werepermissible as sexual partners.
Nonetheless, questions about the religious affiliationand menstrual status of the female prisoners pale in comparisonto the larger issue at stake: what does it mean for those who view
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the Prophet’s actions as exemplary to accept that he tacitlyallowed the rape of female captives? Is it correct to refer to theactions of the Muslim soldiers as rape, or does that term haveconnotations that are contextually inappropriate? Does the factthat “marriage” by capture was a common Arab custom at thetime make his actions intelligible? Acceptable? Finally, assumingone accepts that the accounts in Bukhari, Muslim, and otherhadith compilations are essentially accurate, what are the impli-cations of the Prophet’s action for the contemporary world? Ishis precedent binding or is it to be understood as limited to theparticular circumstances of his time and place?
There is general silence on these questions and theirbroader implications in Muslim scholarship. Algosaibi mentionsthe incident in passing,under the title “Family Planning,”withoutany analysis or acknowledgement of its significance for mattersbeyond contraception. Other influential works treat the issues ofslavery differently, but no more satisfactorily. For instance, in his1991 translation of the classic Shafi‘i work Reliance of the Traveller,Nuh Keller excises nearly all mention of slavery from the Englishtext, leaving it, bracketed off, in the parallel Arabic discussions ofmarriage,divorce,and other social transactions.41 The translationcarries no ellipses or notation that something has been removed.As a result of this editorial sleight of hand, the importance ofslavery to the medieval Middle Eastern context in which this textoriginated simply disappears. By way of rationale for these frequent changes, Keller affirms in his introduction that “Not asingle omission has been made from it”– that is, the Arabic text –“though rulings about matters now rare or non-existent havebeen left untranslated unless interesting for some other reason.”42
A specific reference to the missing material on slavery comes inplace of a translation of the chapter on manumission:“Like previ-ous references to slaves, the following four sections have been leftuntranslated because the issue is no longer current.”43 Keller thussuggests that the regulations on slavery, a now obsolete socialinstitution, are somehow separable from the rest of the work; theother rules contained in this “Classic Manual of Islamic SacredLaw,” as the translation’s subtitle proclaims, are directly relevantto the lives of contemporary Muslims.
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A different approach, utilized by the official Saudi fatwacouncil as well as some other twentieth- and twenty-first-century jurists, has been to reiterate classical doctrines as thoughslavery had never been abolished by national governments. Intheir responses to legal queries – which have influence farbeyond Saudi boundaries, through online distribution and sub-sidized translations into European languages – they maintainreferences to slavery throughout, just as their medieval counter-parts would have. Evaluating the conditions making polygamypermissible, the late Saudi mufti Ibn Baz stated that “If a personfears that he will not do justice [between wives], then he mayonly marry one wife in addition to having slaves.”44 Thoughseemingly the opposite of Keller’s strategy of excision, this roteinclusion of material presuming the existence of slavery (evenwhen slavery was not even mentioned in the original question)demonstrates the same unwillingness to engage with the basicproblem at hand: how does one reconcile the presumption ofslaveholding in Qur’an, hadith, and classical jurisprudence withthe contemporary reality of the Muslim world where legal slav-ery no longer exists? Although the vast majority of Muslims donot consider slavery, especially slave concubinage, to be accept-able practices for the modern world, the reticence to confrontthe juristic, as well as social, legacies of slavery has resulted inblindness to the hierarchical residue of its practice to Islamicgender relations more broadly, and to marriage and sexual rela-tions in particular.
Conclusion
I have repeatedly referred to the scriptural and legal acceptanceof slavery as something troublesome to the vast majority of con-temporary Muslims, when it is thought about at all. Because ofthe repugnance with which slavery is viewed, arguing that othermatters 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
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slavery to polygamy.45 Both, he argued, were institutions that itwas impossible to eradicate at once but which were harmful andwhich God intended to abolish, even if one had to follow indica-tions of a trajectory toward abolition in the Qur’an rather thanits literal words. Treating the Qur’an as a document with someverses bound by context, but others containing broad principlesof justice that should take precedence over specific, time-boundcommands, is one essential element of feminist and otherreformist interpretation of scripture. For many ordinary Mus-lims, particularly those for whom slavery is distant history, it issimple common sense. This should not, however, be mistakenfor the view that it is “obvious” that Islam disallows slavery, andthat it was always meant to be abolished.46 The insight is morepowerful if one acknowledges that abolition was not a forgoneconclusion, but rather the result of both non-religious historicalprocesses and interpretive choices by individuals. Indeed, eventoday 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 thespoils of war, or that Muslim nations have signed internationaltreaties 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 somethingpermitted by God.
Muslim thinkers who reject slavery as unjust haveapplied two main methods to argue that this rejection of slaveryis based in the Qur’an. First, some suggest that the abolition ofslavery is implicit in the Qur’anic message, and Muslims simplydid not see it before, being blinded by their social circumstances.Mohamed Syed’s stance that sex with captive or unfree womenwas 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 arguedfor a trajectory from hierarchical institutions to more egalitarianones, from acceptance of slavery to its abolition: the practicallimitations of the Prophet’s mission meant that acquiescence toslave ownership was necessary, though distasteful, but meant to
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be temporary. Fatima Mernissi makes a parallel argument thatthe Prophet’s compromises regarding husbands’ rights to con-trol their wives were similarly necessary accommodations withpatriarchal power in the interests of ensuring the success ofIslam.48 Both perspectives contain valid points: the presuppos-itions of interpreters matter a great deal in implementation (orlack thereof) of the Qur’an’s precepts; and there is evidence thatin some instances the Qur’an accommodates or gradually pro-hibits certain practices that God and/or Muhammad might havepreferred to abolish immediately (e.g., consumption of alco-hol). However, neither of these approaches is sufficient if onedoes not take the responsibility of individual interpreters seriously.
An approach to revelation that takes both propositionsseriously allows one to interpret scripture without being boundby the assumptions of previous generations of exegetes whoaccepted male superiority and other social hierarchies, includ-ing slavery, without question. Additionally, one can see certainpassages and Prophetic sunnahs as gestures in the direction ofegalitarianism, capable of full realization only in a world whereequality and freedom are common shared values. Yet neither ofthese approaches engages the critical, and critically difficult,question: where is God’s justice in permitting slavery in the firstplace, 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 theseventh century in God’s eyes, then on what basis may anyonesubsequently declare it unjust without rendering divine justicesubordinate to the vagaries of human, and therefore inherentlyflawed, moral sensibilities?
A full consideration of questions about God, history,and justice would require delving further into philosophy andtheodicy than I dare attempt; these issues have preoccupiedmany generations of theologians and I make no pretense ofresolving them here. I raise them, though, because althoughgenerally omitted from feminist reflections on Qur’an, sunnah,and law, these theological questions are deeply relevant to largerissues of ethical definition.49 How can one reconcile God’s
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justice and goodness with the injustice of slavery, or does view-ing God as just and good necessitate acceptance of slavery as partof the divine plan for humanity? To my mind, a proper responseinvolves two propositions, each of which places a great deal ofresponsibility on individual Muslims. First is the view that whileGod is responsible for the just and the good, and guides humanbeings accordingly, injustice and oppression (zulm) come fromhuman beings; imperfection is inevitable once one accepts thecomplicated possibility of human free will.50 Second is the dis-tinction noted by theologians between legal justice, wherehuman 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 ofhuman conduct.”51 Combined with the view that historicaldevelopments render certain specific regulations irrelevant,these notions make reform more attainable at the same time asthey place a greater burden on human beings to achieve it. Godclearly orders Muslims in the Qur’an to combat injustice andoppression yet simultaneously permits institutions such as slav-ery. Outside of accepting that slavery is a just and therefore notproblematic practice (or insisting, against the clear sense of thetext, that the Qur’an never actually allowed it), the only possibleresponse is to suggest that the Qur’anic text itself requires Mus-lims to sometimes depart from its literal provisions in order toestablish justice.
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4Women have an Islamic right to exemption from criminalization or pun-ishment for consensual adult intercourse.Asra Nomani, “Islamic Bill of Rights for Women in the Bedroom,” 20051
The woman who commits zina and the man who commits zina, lash each of them one hundred lashes. Do not let pity deter you in a matter ordered by God,if you believe in God and the Last Day Qur’an, Surah 24, verse 2
Sex is, paradoxically, both the most private, intimate act humanscan undertake and a profoundly social activity. All societies andcultures regulate sexual activity among their members. Certainpairings are permissible, while others are not; some acts areapproved, while others are disallowed. Muslims are not alone inmaking distinctions between what is lawful and unlawful,what isproper and improper. Nor have Muslim societies historicallybeen unique (or uniform) in imposing consequences, includingphysical chastisement, on those who break the rules. However,although the particular configuration of licit and illicit sexualactivities developed by classical Muslim thinkers from prescrip-tions in the Qur’an and sunnah shares certain elements with othercultures and traditions, it differs in crucial ways – in particular, inpunishing men and women equally for failure to heed the limits.
The Qur’an speaks in scathing terms of sex outside lawful bounds – with a spouse or with what one’s “right handspossess”– as corruption and sin, and repeatedly refers to chastity(literally, protecting one’s genitals) as a virtue for both males and
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females.2 Zina, sex between a man and a woman who is neitherhis wife nor his slave, was the most serious of the sexual trangres-sions described in the Qur’an and treated in the Prophet’s sunnah. One critical component of zina as elaborated by Muslimthinkers is its consensual nature, although some thinkers catego-rized regular zina along with “zina by force” (bi’l-jabr). The freeconsent of two individuals to engage in sexual relations was notsufficient or even necessarily relevant to whether sex betweenthem was licit and socially acceptable. Like ancient Near Easternand Mediterranean codes, Muslim source texts and developedIslamic law held the view that the individual status of and legalrelationship between two parties determined whether sex waslicit. Were the individuals free or enslaved; married, previouslymarried, or never married; were they male or female?
The particular configuration of lawful and unlawful actsformulated by premodern Muslim jurists does not match cur-rent laws or practices in Muslim-majority societies or amongMuslims living in the West. That classical scheme, in keepingwith common practice in the region at the time, accepted (non-consensual) sex with enslaved females, as well as the marriage(without consent) of male and female minors by fathers; lawstoday forbid both slavery and marriage of minors (although thedefinition of minority varies greatly).3 The view “that consentmakes a difference to whether some sexual activity is seen asimmoral or not”4 is widely shared. Most Muslims who espousethe view that consent matters do not phrase their views as categorically as American Muslim writer Asra Nomani does instating that “consensual adult sex” should not be punishable.Rather, consent is often seen as necessary but not sufficient forsex to be lawful. Classical Muslim views about consent and itsrelationship, or lack thereof, to lawfulness were unremarkable inthe context of broader Near Eastern and Mediterranean lateantiquity, where even free women could be treated as sexualproperty in some sense, and familial participation in the maritalarrangements of family members, especially girls, was expected.At the same time, a variety of semi-marital arrangements,including slave concubinage and temporary liaisons,were some-times permissible, allowing some more fluid unions.
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Over a thousand years later, legal concubinage nolonger exists in the Muslim world, polygamy has been legallyrestricted in many places, and nation-state bureaucracies havebecome involved in marriage licensing and registration. At thesame time, alternate marriage and marriage-like practices areemerging or re-emerging in various places in the Muslim-majority world. These include mut‘a, a form of time-limitedmarriage approved by Shi‘i law but occasionally engaged in bySunnis in the West; zawaj al-misyar,“marriage in transit,” a typeof union which conveys more limited spousal claims than usualand has found approval from some Saudi muftis; and zawaj ‘urfi,“customary marriage,” as practiced particularly in Egypt. Thislast, a religious marriage not registered in accordance with civillaw, is similar in numerous respects to the practice common insome European immigrant and African-American commun-ities of marrying in only religious ceremonies without seekingcivil recognition. The rise in these informal marriage practices,as well as what is likely to be a rising incidence of sex outside ofmarriage, is attributable in part to a large and increasing gapbetween sexual maturity,beginning at puberty,and social matur-ity, the age at which it is socially reasonable to get married. Thisdoes not mean that illicit sex (premarital intercourse, extramar-ital liaisons, etc.) was unknown in the past or is not practiced inMuslim majority societies today, often without discovery orpunishment.5
The rising age of marriage for both male and femaleMuslims in numerous societies means that alternate forms ofsexual liaisons are gaining ground de facto, notwithstanding thecontinuing importance of female virginity in many commun-ities. Yet there is a general unwillingness on the part of manyMuslims to confront the existence of sex outside of marriage.This reluctance is due in part to a well-integrated principle ofcomportment that forbids broadcasting one’s own sins andrequires covering up sins of others. It does not allow for seriousconsideration of how Muslims’ sexual practices have shifted,how modern notions about the importance of consent makes aflat prohibition on all non-marital sex seem less sure to someWestern Muslims, and how practical matters such as the
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intersections between religious and civil marriage are to beaddressed in modern nation-states, especially those where Muslims are a minority.
As a prelude to discussing contemporary Muslim think-ing on non-marital sex, this chapter will address the classicaldefinitions of licit and illicit behavior, and the rewards and punishments associated with each. The regulatory attention ofthe classical jurists was not limited to illicit activities but alsoencompassed even lawful sexual activity, such as betweenspouses.6 In notable contrast to the hyper-attention on theimposition of penalties for illicit sex in some Muslim contextstoday, where the enforcement of hadd punishments stands as asymbol of Islamic authenticity, the response of premodernjurists to unlawful sex was generally pragmatic regulation ratherthan dogmatic insistence on punishment for offenders. It is clearfrom both what is explicit and what remains unarticulated intheir texts that various types of unlawful sexual activity havealways been practiced in Muslim societies. Jurists and judgesaccepted hadd punishments in principle, but – at least in partbecause the rules of evidence made proving a charge of zina nosmall matter – frequently assumed that instances of illicit sexwould go unpunished by human authorities.
Just because zina went unpunished did not mean,though, that there were no earthly legal consequences to intercourse outside of marriage. The effects of zina were regu-lated as part of the jurists’ broader treatment of Muslims’ sexualbehavior, and the legal effects of lawful and unlawful sexualencounters often overlapped. The view that any sexual act merits either “payment or punishment” explains both therequirement of marriage, with dower (or purchase, in the case of a female slave), and the possibility of transmuting punish-ment by treating an impermissible sexual act as a mistake, forwhich the woman involved would receive compensation in theamount of her fair dower. Such “mistakes” also allow for the imputation of paternity, which illicit relations do not. Theboundary (hadd) between lawful and unlawful remains unchal-lenged, but in practice, specific acts are not always so neatly categorized.
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Protecting chastity: the classical texts
According to Qur’anic passages, hadith narratives, and theworks of jurists and exegetes, lawful sex – that is, approved actsbetween partners who are legally permitted to one another – isgood, healthy, and praiseworthy as a divinely approved form ofpleasure. Unlawful sex – where the partners are forbidden to oneanother or, to a lesser extent, the specific acts engaged in are dis-approved7 – is reprehensible, the cause of social chaos and personal sin, and deserving of earthly punishment as well asdivinely wrought chastisement in the hereafter. Several hadith,found in Sahih Muslim among other sources, illustrate both thenaturalness of sexual desire and the importance of its satisfac-tion only within licit contexts. Muslim presents these accountsof the Prophet’s words and deeds under the heading “He whosees a woman, and his heart is affected, should come to his wife,and should have intercourse with her.” The accounts, reportedby Jabir b. ‘Abdullah, state that Muhammad “saw a woman, andso he came to his wife, Zainab, as she was tanning a leather andhad sexual intercourse with her.”In the most detailed report, theProphet subsequently advises his Companions that “When awoman fascinates any one of you and she captivates his heart, heshould go to his wife and have an intercourse with her, for itwould repel what he feels.”8
From this account and other similar narrations scholarshave deduced that a man is not to blame for becoming arousedby a woman to whom he has no lawful sexual access – providedhe does not deliberately seek out such stimulus; another relevantpiece of advice attributed to the Prophet states, translated freely,“The first look is free, but the second one will cost you.”9 Seekingsatisfaction due to that arousal is not only permissible, but rec-ommended: a man in that situation should follow the Prophet’sexample and return home to have intercourse with his wife. TheProphet is also reported to have said that a man will be rewardedby God for acting thus. When questioned by an incredulouscompanion as to why God would reward him for such a pleasur-able activity, the Prophet responded by asking whether Godwould punish him for satisfying his desire unlawfully. Just as the
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illicit satisfaction of desire is punishable,Muhammad explained,so the lawful satisfaction of desire is rewarded. Female desire, itmust be noted, makes no appearance in these traditions, whichpresume both the wife’s availability and her acquiescence, not tomention her interchangeability: desire sparked by one womancould be easily satisfied with another.
Islamic definitions of lawful and unlawful sexual activ-ity shared a double-standard governing male and female sexualbehavior with other ancient legal systems (Greek, Roman, andbiblical). A Muslim male could have more than one licit partner– up to four wives and an unlimited number of slave concubines(and for Shi‘i men, an unlimited number of mut‘a, or tempo-rary, wives) – while a Muslim female could only be sexually lawful to one man at a time, either her husband or, in the case ofan unmarried female slave, her master. However, the scope ofpartners available to men under Islamic law was also restrictedin a much more significant way than was the case in these otherlegal systems. Most obviously, male partners, entirely legalunder Greek and Roman (though not biblical) law where themales in question were slaves or social inferiors, were prohibitedunder Islamic law.10
Muslim rules governing sex between men and womenwere also more stringent in key respects than those of otherancient societies, which tended to punish men for sexual contactonly with virgin or married women whose sexuality was underthe control of a father or husband. Under ancient Greek law,“The only officially forbidden fruit was the wife of another citizen.”11 Roman law likewise made a distinction for marriedmen between being unfaithful and committing adultery; themore serious offense of adultery involved another man’s wife.12
Under rabbinic law, moral constraints governed the behavior ofdivorced or widowed women, but only offenses by or involvingvirgin, betrothed, or married women were punishable.13 For aMuslim man,by contrast, any consensual sex with a woman whowas neither his wife nor his own female slave constituted zina,the form of illicit sexual activity with which the classical Muslimjurists were most concerned. (There seems to have been someearly tolerance for the lending of female slaves, but it was
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ultimately not permitted by the established legal tradition.)Although a Muslim male’s partners may have been numericallyunlimited in theory, for non-elite men, without the resources toown slaves or marry a second wife, monogamy would have beenthe norm rather than the exception.
Despite the double standard with regard to the numberof lawful partners men and women could have, as well as howmuch say they had in the initiation, continuation, and termin-ation of those legal ties, there was no difference with regard topunishment for sex outside those ties. The Qur’an specifies onehundred lashes each for both the male and female participantsin zina, if free, with half as many for enslaved offenders.14
According to precedent attributed to the Prophet Muhammad,only enslaved or never-married offenders are to be lashed; freeoffenders who are or have been married15 are subject to theharsher penalty of lapidation, stoning to death – a biblical punishment for a different sexual offense.16 Islamic law links themore severe punishment of stoning to marital status rather thangender. Thus, if a never-married woman committed zina with amarried or previously married man, she would be flogged andhe would be stoned. The reverse would be the case if the womanwas or had been married and the man was a bachelor. The juristsapplied these criteria unfailingly, never suggesting that womenshould be subjected to harsher punishment than men for thesame offense, or that a man’s offense was lessened if the womanhe bedded was not someone else’s wife or betrothed.
Though these hadd punishments are clearly spelled out,the imposition of either penalty for zina requires stringent proof,generally either by witnesses or confession. The Qur’an requiresthe testimony of four eyewitnesses17 whom the jurists specifymust be adult,male,Muslim,and able to testify to having seen theactual act of penetration; describing what the testimony mustinclude, they use analogies such as a key going into a lock,or a pendipping into an inkpot. Harsh punishment is to be meted out tothose who accuse a woman of unlawful intercourse but cannotproduce three additional witnesses to her crime. Such accusersbecome themselves guilty of the hadd crime of slander (qadhf )and are liable to flogging – eighty lashes, according to Surah 24,
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verse 4, almost as severe as what is specified for the crime of zinaitself. Confession can also prove a charge of zina. Although theQur’an does not mention this form of proof, a number of hadithreport the Prophet punishing offenders on the basis of their ownconfessions – which, tradition makes clear, he discouraged themfrom making.18 For the most part, the tradition literature and thejurists’ writings demonstrate a real aversion to both accusation –at least some of which can be attributed to the Qur’anic punish-ment for unsupported charges – and confession.
Proof by witnessing or confession is equally applicableto men and women accused of zina, but one doctrine placeswomen disproportionately in jeopardy of punishment. Thedominant opinion of the Maliki school of legal thought is thatpregnancy in a woman who is not currently married (or in herwaiting period from divorce or widowhood) is prima facie evi-dence of zina. This view is not shared by the other legal schools,which hold that pregnancy does not provide the necessarydegree of certainty that an unlawful act was committed. Evenamong the Malikis, the impact of the view that pregnancy isproof of zina was muted by the acceptance of a lengthy gestationperiod, up to four or five years, during which a pregnancy couldbe attributed to a previous husband. In fact, jurists and judges inpremodern Muslim societies used a variety of legal maneuversand excuses to thwart application of hadd penalties, even wherethe parties acknowledged having intercourse outside of a validmarriage. Because of the seriousness of hadd crimes and theseverity of the penalties, it became an important legal principlethat in cases of doubt, hadd punishments were to be dropped infavor of milder discretionary punishments. Two statementsattributed to the Prophet favor this dropping of the hadd:“Avoidpunishments so long as there is room for avoiding them” and“Keep the Muslims away from punishments wherever possible.If there is any way out for an offender to escape punishmentacquit him. It is better for a judge to err in acquittal than in con-viction.”19
The jurists’ strict attention to seemingly unattainableevidentiary standards also firmly placed responsibility for judgment and punishment for zina squarely in the hands of the
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public authority, rather than making it a matter for private ret-ribution.20 Numerous hadith found in both Bukhari and Muslim make clear that even if a man were to find his wife withanother man, he could not take the law into his own hands, butrather would have to bring three additional witnesses to her actbefore the public authority could judge her offense. What aboutthe case of a husband who witnesses his wife’s adultery but cannot substantiate his claim with the necessary additional wit-nesses? In such a situation, the most he can do is deny paternityof a child his wife is carrying or has delivered, by proceedingwith a series of mutual oaths, set forth in the verses directly following those on punishment for zina.21 In the Qur’anic pro-cedure known as li‘an, he can disavow the paternity of his wife’schild without being subject to the usual, nearly impossible tosatisfy, requirements of proof for zina. However, she can defendherself against his accusations by taking four oaths that she isnot guilty; then, their marriage will be dissolved and she will notbe liable to punishment, but she will have sole care of the child –just as if it had been born from zina. Although a child born ofzina is not himself or herself guilty of any wrongdoing, the exist-ence of such a child is threatening to the stability of the systemgoverning kinship and social interaction.
Marital intercourse is the paradigmatic sexual act inIslamic law. Its lawful nature does not exempt it from legalscrutiny; if anything, the opposite is the case.Sex within marriagehas a variety of financial, social, and ritual consequences thatrequire jurisprudential regulation. The first act of sexual inter-course in marriage obliges the husband to pay the wife her fulldower, removes her opportunity to have the marriage dissolvedon the basis of his impotence, creates kin prohibitions – that is,barriers which prevent each spouse from marrying certain closerelatives of the other in the future, and obliges the wife to observea waiting period if she is widowed or divorced. Every act ofmarital intercourse in which penetration occurs requires eachspouse to complete a major ablution (ghusl) to re-establish ritualpurity before he or she can pray. This list does not exhaust thelegal consequences of marital sex, but it provides a starting pointfor considering how illicit sex compares in its legal effects.22
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Zina differs in two crucial ways from lawful maritalintercourse, aside from the issue of punishment. First, an obli-gation to pay dower never results from consensual unions out-side of marriage. Second, any offspring of zina have no legalfather. These twin issues of dower and paternal affiliation are the primary consequences of lawful sex between married partners(and exist, in modified form, in liaisons between owners andtheir concubines as well). There is one area, on the other hand,where it is uniformly agreed that zina does not differ from lawful marital sex: intercourse between forbidden partnersmakes ablutions necessary just as it does between spouses.Whenit comes to determining the other legal consequences of zina,however, the jurists disagree among themselves. Yet despite thisdisagreement, it is striking that they attend primarily to deter-mining where and whether parallels between zina and maritalintercourse exist, debating extensively over whether, for example,kin prohibitions are created by an illicit sexual encounter as theywould be by marriage.
In making arguments about this issue, by and large thejurists do not discuss punishment at all, merely the question ofwhether kin prohibitions are established. To take one hypothet-ical case: does a man’s wife become forbidden to him because hecommitted zina with her mother (as she would become if heconsummated a marriage with her mother, even accidentally)?Since the man is married and thus, by juristic consensus, liableto be stoned to death for his offense, the issue of whether his wifebecomes forbidden to him should be irrelevant. It does not matter if a man sentenced to death may or may not have inter-course with his wife, since carrying out the hadd punishmentrenders the issue moot. However, the ways in which jurists of alllegal schools discussed this issue demonstrates that the haddpenalty was not their primary concern; in fact, the query essen-tially presupposes that the hadd will not be applied. Only if thisis assumed does the question of whether the man may continuea marital relationship with his wife have any importance. Thisbrief example shows that the jurists persisted in applying thetraditional legal consequences of marital intercourse to illicitsexual acts as often as possible, in an attempt to encompass them
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legally, and reduce their power to cause social havoc. Even whenthey decided that the same consequences did not apply, it waswith these ordinary effects of unlawful sex that they largely con-cerned themselves, rather than with punishing offenders.
It is tempting for someone who wants to minimize theimportance of hadd punishments to emphasize the jurists’matter-of-fact treatment of illicit sexual acts, but their detail-oriented attention to the banal consequences of otherwise forbidden sexual encounters should not be mistaken for tacitapproval of those acts. The jurists’ approach to dealing with sexual transgressions does not mean they did not,at other times,condemn them in the strongest possible terms. The pragmaticregulation of sex did not exist only with regard to acts that some liberals might find tolerable today, such as consensual sex between unmarried adults. Rather, the same pragmaticapproach extended to acts agreed to be horrific, including rape.The jurists were not giving a wink-and-a-nod approval to rapewhen they discussed whether a raped female needed to performablution after forced intercourse (the rapist, all agreed, had to doso before he could pray).23 While the rape may have been bothhorrifying and deserving of punishment, the jurists had a particular concern and objective and were not distracted fromit. This pragmatic, technical, legalistic approach to the issues inquestion does, at times, seem to lose sight of the big picture.However, it is also helpful to keep in mind the jurists’ assump-tion that whatever sexual sin individuals might have committed,they will continue to live, and pray, as Muslims.
Paternity, legal fictions, and non-marital sex in contemporaryMuslim thought
A widely cited account set during the Prophet’s lifetime illum-inates the continual tension between punishment and regu-lation as responses to unlawful sexual activity. In this narrative,two different men assert that a particular youth, born to a femaleslave, is of their own lineage. The son of the slave-woman’sowner affirms that the young man is his brother, “born on his
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[father’s] bed,” the result of a legitimate union between ownerand slave. The man who asserts this is the brother of theProphet’s wife Sawda, the slave-owner in question was herfather. Another man declares that his own brother, sincedeceased, claimed paternity of the youth, the result of an illicitaffair with the slave. The Prophet, so the story goes, attributedpaternity to the slave-owner, Sawda’s father, famously stating:“The child belongs to the bed, and the adulterer (‘ahir) is to bestoned.”24 However, apparently noticing a family resemblancebetween the other claimant and the young man, the Prophettold Sawda to screen herself from the youth.
In part, this anecdote is a reaffirmation of basic legalnorms governing sexual morality. Paternity is established bymarriage or, in the case of a slave concubine, ownership. Byaffirming that the slave-owner was indeed the legal father of theyouth borne by his female slave, the verdict rendered by theProphet ensured the stability of this system for attributingpaternity and reiterated that sexual transgressions would beseverely punished.
There is another level to this tale, though, found in theProphet’s order to his wife Sawda to screen herself from theyouth, despite his own verdict declaring the youth legally herbrother, and therefore among those relatives in front of whomshe could appear. The Prophet’s command represents anacknowledgement that this particular attribution of paternitywas a legal fiction. The appearance of this story in works ofjurisprudence represents an acknowledgement by the juriststhat their regulations also at times create legal fictions thatattempt to normalize illicit sexual activity.25
The issue of legal fictions surrounding paternityremains a complicated issue in the present day and age, as arecent Egyptian case demonstrates. Hind al-Hinawwy bore achild, claiming that Ahmed al-Fishawy was the father and thathe had married her in a widespread but largely clandestine phe-nomenon known as zawaj ‘urfi, or customary marriage. Zawaj‘urfi is usually kept secret from parents, and remains completelyoutside the bureaucratic channels of the Egyptian nation-state.Nonetheless, if there are sufficient witnesses, some scholars
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accept that it meets the minimal requirements for a valid mar-riage under those interpretations of Islamic law where a bride isnot required to be represented by a guardian. Al-Hinawwy’sputative husband, a well-known actor, denied the marriage andrejected paternity of the child. The mother’s request for DNAtesting to allow her to press her claim of paternity raises a crucialquestion with implications far beyond her individual case: if shecannot prove the marriage, is there valid paternity even if the testresults point to the man she claims sired the child? In classicaljurisprudence, there is no necessary relationship between bio-logical paternity and legal paternity.26 If a child were to be fromzina, no acknowledgement from either mother or biologicalfather can establish legal paternity for the child involved.What isat stake here is not whether or not the woman could be punishedfor zina – Egypt does not prosecute zina, and even if it did,whether or not the man’s claim that there was no valid marriageis accepted, there are certainly grounds for a claim of mistake(shubha) on her part which would prevent conviction for zina.Rather, the issue was whether the child’s alleged father could beforced to take paternal responsibility for the child, as the motherdemanded.
This case would, for a variety of reasons, likely be treatedas shubha, a mistake, which conveys paternal affiliation. But theuse of DNA testing to link legal paternity with biological father-hood raises a number of difficult questions that women whohave hailed this case as a step for sexual parity must address. Insome respects, DNA as proof of paternity is analogous to physi-ognomy used in early Muslim communities to differentiateamong various claimants (in cases of women who remarriedbefore observing proper waiting periods, etc.). However, as thecase of Sawda’s half-brother shows, evidence gathered in thatfashion was insufficient to override a legal claim or to establish alegal tie where none existed. Does the shift in technology withthe ready availability of DNA testing alter this dynamic? And ifso, is it a good thing?
One consideration is that if paternity testing becomes astandard practice in cases of dispute, it would substantially alterthe existing legal dynamics that set a very high bar for accusing
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women of being unfaithful.27 In the time of the Prophet and subsequent centuries, jealous and suspicious husbands had fewavenues to pursue without irremediable consequences. Menwho called into question their wives’ chastity, by imputing ille-gitimacy to children they bore, either had to disavow such chil-dren formally through the virtually defunct mechanism ofmutual cursing (li‘an), thus permanently ending their mar-riages, or to withhold any accusations and refrain from anydefamatory speculation. If a man could order DNA testing onhis child without automatically dissolving his marriage, it wouldchange the balance of rights and duties in unexpected ways.
The notion of checking for compliance with paternitywould fundamentally violate the “don’t ask, don’t tell” principlethat is deeply influential in Muslim ethical discussions and socialpractice, sometimes for better, sometimes for worse. EbrahimMoosa, writing about the offspring of zina, makes a point that ismore broadly valid:“juristic ethics discourages any such probingthat may produce incriminating evidence that delegitimizes thechild.”28 Despite the discouraging of this probing,could a womanbe prosecuted for zina if found to have borne a child to a manother than her husband? What about an unmarried woman?Would DNA evidence count in place of the usually required wit-nesses to the sexual act? Answers to these questions must reflectthe entire range of consequences to tinkering with some portionof the system. If DNA were considered proof, then one couldargue that in cases where a woman is prosecuted for zina on thebasis of pregnancy, any man she names should be tested as well,and prosecuted if DNA results show his paternity. If evidence ofthe result, rather than the act, is all that is required, then the manis just as liable to prosecution. It could be that the acceptance ofDNA evidence would be of benefit, but the full range of conse-quences must be considered, lest the unintended effects prove farworse for women than the status quo.
The debate around this Egyptian case raises compellingissues beyond that of DNA testing. First, of course, is the com-plicated situation that arises from a mixed system, where classi-cal legal models and doctrines both converge and conflict with acivil judiciary. Second is the social double-standard that ascribes
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far more severe consequences to females than to males forbreaches of chastity norms, even when the legal strictures gov-erning their sexual contact outside of marriage are exactly thesame. Third, although the dynamics of zawaj ‘urfi are specific toEgypt, it is but one of several flourishing types of quasi-marriagethrough which couples seek to legitimize their sexual unionsreligiously while avoiding the full burden of mutual obligations– social, financial, legal, and sometimes familial – that comewith fully recognized, civilly registered marriages.
Muslims who contract zawaj ‘urfi are generally seekingto engage in sex without the expenses and complications of civilmarriage while avoiding the sin of commission of zina. In theEgyptian case, the costs are not related to getting married per se,but rather to the social expectations of what a groom of a certainclass will be able to provide for his bride at the time of marriage,the most significant being “key money” – effectively, a substan-tial down payment for housing. These financial expectations areone factor leading to the delay in marriages, and thus the sense ofneeding interim sexual outlets. The specific circumstances aredifferent elsewhere, but in many Muslim communities later ageat marriage, due in part to the increased importance of post-secondary education, has led to new challenges for Muslims whowant to adhere to accepted regulations surrounding sexual con-duct while at the same time having difficulties suppressing theirsexual drives for a decade or more after puberty.Modern shifts inmarriage patterns, however, are not the only significant change.Equally or more important is a broad shift in sensibilities to aview of sex as an activity that is primarily about the mutual con-sent and individual attachment of the persons involved. Thisperspective is particularly prevalent among Muslims living asminorities in societies such as the United States.
In her “Islamic Bill of Rights for Women in the Bed-room”(the successor to her widely circulated, and generally wellreceived, “Islamic Bill of Rights for Women in the Mosque”),activist, author, and self-identified single mother Asra Nomanideclares, as the eighth of ten items, that “Women have an Islamicright to exemption from criminalization or punishment forconsensual adult intercourse.”29 Nomani claims as an “Islamic
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right”something that contradicts Qur’an, sunnah, and centuriesof jurisprudential consensus. Yet her statement is worth con-sidering, rather than rejecting out of hand, as it illustratesimportant tendencies in contemporary Muslim discourse.Those who are not ‘ulama increasingly make authoritativeclaims about Islam. Where those who are not necessarily anybetter trained than Nomani make claims that their audienceviews as “traditional,”the claims tend to be accepted without thesame level of scrutiny. Nomani’s strategic choice to argue on thebasis of conformity to Islam is representative of much moderndiscussion, even if the specific claim she makes is in blatantopposition to scholarly and popular consensus.30 Finally,Nomani’s underlying assumption that the consensual nature of asexual relationship is relevant to whether it is, or should be, sub-ject to censure would not have been accepted by the classicaljurists, but even those modern ‘ulama who would disdainNomani’s characterization of the “Islamic” position on sex out-side of marriage place more stress on consent than their predeces-sors (even if it is usually consent to marriage they are considering,rather than consent to sex outside its bounds). Nomani’s state-ment crystallizes a widespread but largely inchoate sentimentamong many contemporary Muslims: consent matters.31
Nomani’s view on non-marital intercourse (note that itseems to be irrelevant, from her perspective, whether the partiesinvolved are married to other individuals) reflects a broadersocial shift. Thus, commenting on an article that appeared onMuslim WakeUp, one self-identified American Muslim wrote:
Many Muslims at the mosque I attend believe that sex out-side of marriage is wrong. Many Muslims don’t even date(not in the American way at least) in order to avoid pre-marital sex. Personally, I wouldn’t be so quick to say sexoutside of marriage is wrong, for two reasons. First, otherthan marriage, there was one other sexual relationship thatwas allowed in Islamic Law, and that’s slave concubinage.Second, although I, personally, believe that one nightstands and casual sex are wrong (not to mention rape),what about sex in committed relationships that aren’t
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marriages? Is that haram? I’m sure that slave concubinagewould disgust a lot of Americans, given that slave ownerswere allowed to have sex with their slaves with or withouttheir consent. But if this is allowed in Islamic Law, howcould sex by mutual consent in committed relationships inwhich both the man and the woman love and respect eachother, but are not married, be haram? That question repre-sents my struggle. I’m not arguing that such a relationshipis halal. My honest answer to that question is I don’t knowwhether it’s halal or haram. But I do suggest not being soquick to call it haram. Perhaps it’s a question that requires afatwa.32
This statement from a convert reflects a combination of defer-ence to jurisprudence combined with an assessment of how itsrules (such as slave concubinage) diverge from his or her per-sonal beliefs. The author accepts the basic validity of conceptssuch as haram and halal 33 and seems to respect legal authoritywhen she suggests that “a fatwa” might be required. At the sametime she is unaware that there is a very clear established answerto whether “sex by mutual consent in committed relationshipsin which both the man and the woman love and respect eachother but are not married” is absolutely unlawful. What thisauthor does not do is suggest that, in light of new perspectives(e.g., finding slave concubinage disgusting), the question oflawful and permitted should be re-evaluated.
Conclusion
It is obvious that the classical model of Islamic sexual ethics nolonger applies in several critical respects.Yet in order to begin tothink about how a more viable and equitable ethics of sex mightbe developed, Muslims must grapple actively with the centralityof sex and sexuality to communal life. In the U.S. and Europeespecially, but not exclusively (as the Egyptian zawaj ‘urfi casedemonstrates), Muslims are facing a crisis of sexual morality.One alternative is to push for complete adherence to classical
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normative standards of relating to members of the oppositesex.34 Some communities and families manage to enforce a sem-blance of segregation, but it is unlikely to succeed on a largescale. Even in the medieval Muslim world, strict observance ofgender segregation was practiced exclusively by an elite. Today,in societies such as Saudi Arabia, strict gender segregation isunder siege; in the U.S. or the U.K. it exists only on the fringes ofthe Muslim populace. Gender segregation, of course, does notby itself prohibit all illicit sex, and gender mixing, despite somealarmist projections, does not mean that illicit sex will transpire.More than the shifting practice, it seems to me that there is adivide at the level of ideas and ideals between contemporaryconventional wisdom among Muslims, especially those living inthe West, and classical formulations of sexual ethics. The fear, ofcourse, is that discarding the established legal rules for conductwill leave Muslims without any guidance. Is there a way to movepast patriarchal and sexist limitations of both traditional andcontemporary double-standards while acknowledging thatthere are, and need to be, boundaries to sexual relationships?
One obstacle to frank conversation about shiftingbehavioral patterns is the insistence on avoiding revealing talk, apoint explored further in the next chapter’s treatment of same-sex intimacy. As one scholar notes, “Talk about illicit sex mightbe as socially destabilizing as its perpetration.”35 This is not asimple matter of prudery; the practice of avoiding potentiallyincriminating questions, and not sharing information aboutindiscretions, is woven into the fabric of Islamic legal thought aswell as embedded in Muslim social norms. Covering up one’sown faults, or the faults of others, is understood as a vital dutyfor a believer.36 However, the “don’t ask, don’t tell” model provides a tremendous obstacle to transforming ethical stand-ards: if everyone refuses to publicly discuss the fact that, with the disappearance of early marriage, many Muslims are notwaiting for marriage to have sex, the problem continues.And the social double-standard (in the case of virginity, forexample) means that the consequences for women are worsethan those for men, even where, in legal terms, the issues are the same.
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In March 2005, European scholar Tariq Ramadanalluded to this double-standard in his eloquent and persuasive(but controversial) call for a moratorium on hadd punishmentsfor zina. But in nations where “consensual adult sex” is not pun-ished, regardless of its compliance with religious law, there arestill very important matters to be discussed.37 The Qur’anic andclassical jurisprudential boundaries of what counts as licit andillicit have already been redrawn, for all practical purposes, byMuslim acceptance of the abolition of slavery and, therefore, ofslave concubinage. The double-standard that was operative inthe past (even if, in practice, it applied only to men wealthyenough to take more than one wife or own concubines) haslargely disappeared as a matter of law, with the increase inmonogamy and the disappearance of slave concubinage as alegal option. Zina can be redefined for the twenty-first centuryas sex between partners not married to one another. But whatelement of marriage legitimizes sex and differentiates it fromzina? Do dower payment and a unilateral right by the husbandto dissolve the union at his whim (regardless of whether or notthis is the usual practice) make marriage moral? Is religiousmarriage, a voluntary contract without civil registration, suffi-cient to make sex licit, without consideration of national lawsthat enforce certain property relationships? Ultimately, wheredoes lawfulness rest? These are not flippant questions, but ser-ious attempts to think about what transforms sex into some-thing licit. What is God’s stake in marriage?
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5Illicit sex between a man and a woman (zina); anal intercourse between men (liwat); having intercourse with livestock (ityan al-baha’im); having anal intercourse with a female stranger (ityan al-mar’a al-ajnabiyya fi dubriha); tribadism (musahaqat al-nisa’), which is a woman doing with a woman something resembling what a man would do with her; and a husband having intercourse with his wife’s corpse.From Ibn Hajar Haytami’s list of Enormities, #338–3431
The excerpt above forms part of one of the many lists of majorsins, or enormities (kaba’ir), compiled by medieval Muslimscholars.2 Sometimes ranked in order of importance, at othertimes listed thematically, the entries combine theological andsocial sins. Sexual offenses frequently occupy prominent placesin these compilations, though always below the gravest sin ofassociating others with God (shirk) and often below the sin ofdisrespectfulness toward one’s parents. These lists are still influ-ential today, as evidenced by Nuh Keller’s inclusion of two suchlists, including Ibn Hajar’s sixteenth-century version, as appen-dices to his late twentieth-century translation of the medievalShafi‘i legal manual Reliance of the Traveller. Other lists, such asthat of fourteenth-century hadith scholar al-Dhahabi, are read-ily available in print in Arabic.3
Al-Dhahabi’s influential Enormities (al-Kaba’ir) con-tains seventy sins, with extensive evidence from Qur’an andhadith presented to illustrate the gravity of each act and justifyits inclusion in his list. Of this number, only a handful relate to
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sex; of these, the most serious is zina (#10), illicit sex between aman and a woman, followed directly at #11 by liwat, or analintercourse between men. (The term liwat is derived from thename of the Prophet Lot; most Qur’anic discussion of same-sexacts between men refer to the attempt by male townsfolk tomolest Lot’s angelic visitors.) This entry also includes a brief ref-erence to tribadism.4 Other relevant entries include #21, slander(qadhf ) of a chaste woman;5 #34, condoning or tolerating a wife’s transgressions;6 and #35, employing or acting as amuhallil.7 A woman’s nushuz (recalcitrance) toward her husband,which could involve sexual refusal or mere disobedience, is theleast serious of the sex-related enormities included, at #47.8
Tenth-century Iraqi scholar Abu Talib Makki, whose listKeller also includes, limits his compilation “solely to sins expli-citly designated as enormities by the primary texts.”9 He divideshis seventeen item list into deeds of the heart, of the tongue(including “slander of a chaste person who is a free, adult Muslim”10), the stomach, the genitals, the hands, the feet, andthe whole body. There are “two [sins] of the genitals and they arezina and having anal sex in the manner of the people of Lot.”11
This joining of zina and liwat – with zina always mentioned first – is a common feature of the lists of al-Dhahabi, Makki, andIbn Hajar.
Ibn Hajar’s list is not selective, but rather comprehen-sive.While Makki itemizes seventeen enormities, and al-Dhahabiseventy, Ibn Hajar lists hundreds, divided into sections. Hisobjective, according to Keller,“is to warn readers against any actthat an Islamic scholar has classified as an enormity.”12 The sexual offenses listed in the portion of Ibn Hajar’s list devoted tocrimes (jinayat) include “zina; liwat ; having intercourse withlivestock; having anal intercourse with a female stranger; trib-adism, which is a woman doing with a woman somethingresembling what a man would do with her; and a husband having intercourse with his wife’s corpse.”13 This groupingbegins with reference to zina and liwat, the primary sexual sinssignaled by al-Dhahabi and Makki, and encompasses severalother acts as well, including tribadism, which merits a briefmention in al-Dhahabi’s discussion of liwat but does not appear
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in Makki’s list. Aside from the exclusion of acts related to marriage, which appear in a separate section of Ibn Hajar’s list,there is no easily discernible logic joining these items. The sec-tion includes both acts subject to hadd punishments and thosesubject to discretionary chastisement; acts involving two persons of the same sex, two persons of the opposite sex, and one person with an animal; acts that are forbidden because theyare intrinsically sinful, as is the case with intercourse with ananimal or a corpse, and those where the problem is not the actitself, but the lack of a proper legal relationship between the parties, as in the case of zina. While there are no circumstancesunder which bestiality or necrophilia can lawfully be per-formed,14 in the case of zina, there would be no sin in the intercourse had the participants been married to each other.
What categorization applies to the same-sex15 sexualacts described in the passage? This question itself presupposes acategory that may not be relevant. Ibn Hajar deals with liwat andtribadism or lesbianism (musahaqat al-nisa’) individually andseparately, not as instances of a broader sin called homosexual-ity. However, as I noted above, tribadism appears briefly in thesection al-Dhahabi devotes to liwat, suggesting that they havesomething important in common. What, though, of the acts? Inthe case of anal sex, the act itself may be an enormity, regardlessof who engages in it; Ibn Hajar condemns anal sex between men(liwat) as well as anal sex between a man and a female “stranger”– that is, a woman who is neither his wife nor his slave and overwhom he has no sexual rights. In the section on marriage, IbnHajar also condemns a man having anal sex with his wife(though, in what is potentially an oversight, he makes no men-tion of a man having anal sex with his slave concubine). Trib-adism is another story. Frottage is perfectly permissible betweenlegitimate partners (a man and his wife or his concubine), so hisprohibition of “a woman doing with another woman somethingresembling what a man would do with her” is not based on theimpermissibility of the act itself. As in the case of zina, it is thelack of a lawful tie between the parties that renders the act illicit.
Could there be circumstances under which such a tiecould legalize otherwise permitted sexual acts between two
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women or two men? For the vast majority of Muslims, and certainly for Ibn Hajar and his colleagues, this is a ludicrousquestion; a licit same-sex relationship is a categorical impos-sibility. Recently, however, some self-identified queer Muslimshave challenged this view, affirming the naturalness of their sexual orientation as divinely granted and seeking to considerwhether it might be possible to construct a religiously validbond between two men or two women that would legitimize sexbetween them. The desire on the part of some self-identified gayand lesbian Muslims to have exclusive and publicly recognizedsame-sex relationships, and to do so in a way that falls within an“Islamic” framework, is without precedent in Muslim history.
In describing this as a recent development, I do notmean to imply that there have not been previous instances ofsexual activity, potentially including long-term affective rela-tionships, between individuals of the same sex. What differs isthe attempt made by some to reconcile a “homosexual” identitywith a Muslim identity, and to legitimize same-sex intimatepartnerships within the constraints of Islamic religious dis-course. Their desire to have sexual relationships that break con-ventional Islamic rules but that aspire to the highest standards ofMuslim ethics, as they understand them, exists in tension withvital theological and juridical principles aside from those for-bidding illicit sex. The two most salient principles are that oneshould not expose sinful behavior, whether one’s own oranother’s, and that it is a greater offense to deny certain rulesthan to break them. Taken together, these rules render any dis-cussion of same-sex sexual intimacy a risky proposition, andmake adherence to the “don’t ask, don’t tell” status quo appeal-ing for many. For others, however, the tacit toleration of illicitsame-sex activity, provided one does not seek public affirmationof any intimate relationship, represents deep hypocrisy and aflagrant violation of other ethical principles.
After providing a brief survey of how the texts treat sexualactivity between two men or two women, this chapter will con-sider the way modern Muslim thinkers from a variety of perspec-tives approach the relationship between sexual orientation,sexualacts, and sexual identities. The view that exclusively homosexual
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desire is innate in some individuals – a core argument of thoseseeking acceptance of gay and lesbian identity – has made inroadseven among some relatively conservative Western Muslimthinkers, but the implications of this acceptance have not beenfully delineated. Those who view sexual orientation as inborn butsuggest that same-sex desires can never be fulfilled lawfully con-front the problem of divine injustice, particularly where they alsoargue for the importance of sexual satisfaction as a human need.On the other hand, those who argue that innateness conveys per-missibility do not satisfactorily address either the macrocosmicprinciples of male/female partnership expressed in scripture orthe ahistorical nature of their claims to an innately gay orienta-tion, claims which ignore the diversity of historical and contem-porary understandings of sexuality. In either case, the minorityWestern movement for acceptance of a gay Muslim identity, andthe reaction to it, has implications for intimate relationships in allsegments of Muslim communities, including between men andwomen in marriage.For this reason,no discussion of sexual ethicscan avoid the issue of same-sex intimacy.
History
Although most Muslims would acknowledge that sexual activitybetween persons of the same sex exists in Muslim-majority societies, this concession is frequently accompanied by an insistence that homosexuality is “western” or “modern,” and certainly “un-Islamic.”16 Writing in 1993, Khaled Duran stated confidently that there were “no self-proclaimed gays in Muslimcountries” and that no movement toward the acceptance ofhomosexuality or gay identity was taking place among Mus-lims.17 Yet contemporary insistence on the forbiddenness ofhomosexuality aside, a number of scholars have suggested “that one might consider Islamic societies … to provide a vividillustration of a ‘homosexual-friendly’ environment in worldhistory.”18 According to Scott Kugle, “when one looks throughthe historical and literary records of Islamic civilization, onefinds a rich archive of same-sex desires and expressions, written
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by or reported about respected members of society: literati,educated elites, and religious scholars.”19 Another scholar states,more bluntly: “same-sex relations between men are ubiquitousin the medieval Arabo-Islamic textual universe.”20 Khaled Al-Rouhayeb, insisting on nuanced readings of texts from dif-ferent genres, calls for close attention to the varieties and registers of competing discourses, allowing for some types ofhomoerotic desire and even activity to be celebrated, and others,including those resulting in penetration, to be condemned.21
Although medieval Muslim sources give the impressionthat homoerotic desire and sexual activity of some type betweenmales was a normal, if religiously illicit, part of elite Muslim life,there is comparatively little on female homoeroticism inQur’an, hadith, or interpretive texts. Although literary and, to a lesser extent, legal texts include some discussion of sexual acts between women – usually sihaq or musahaqa, “rubbing” or“pounding” – most discussion of homoerotic acts focuses onmale/male sexual activity.22 Several factors contribute to thesilence surrounding female same-sex activity. Perhaps the mostimportant is simply that many legal effects of sex depend onpenetration by a penis. In the few cases where sex betweenwomen is mentioned, the legal discussion revolves around whatpunishment, if any, is to be imposed by the authorities as well aswhether compensation equivalent to dower must be paid ifhymeneal rupture has occurred. Legal discussions of male/malesex acts, by contrast, never mention dower, focusing not only onpunishment but also more mundane issues such as the necessityfor ablutions after penetration and the possible impediments tomarriage created by same-sex liaisons.23
In any event, whatever textual sources reveal about theprevalence of same-sex intimate relations, the fact that someMuslims have engaged in homoerotic activities does not mean itis religiously legitimate to do so. For contemporary Muslimsgrappling with same-sex attractions, the key questions is not:what have (some) Muslims done? but rather: what may Muslimsdo? or,even more generally:what does “Islam”allow?24 Some leaveIslam entirely, while others choose to separate sexuality from religion, considering themselves Muslim but acknowledging
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that their sexual acts or identities are not acceptable from a reli-gious perspective. Still others choose to actively grapple withreligious precepts in order to attempt to reconcile a Muslimidentity with a gay or lesbian one.
Bypassing Islamic legal thought (which, as will be seenbelow, does not seriously consider the possibility that any same-sex relationship could be lawful), such reconsideration usuallybegins with the Qur’anic discussion of male and female same-sex acts. There are numerous hadith of varying degrees ofauthenticity addressing liwat in a harshly condemnatory fash-ion; hadith collections also condemn lesbian acts on those rareoccasions they mention them. Scholars interested in developinga framework of tolerance and acceptance for same-sex relation-ships usually ignore hadith entirely or address specific reportsonly to discredit their authenticity. The Qur’an itself becomesthe basis for new interpretations, which again focus on male/male sex. There is no consensus as to whether the Qur’an evenmentions female same-sex activity. It might or might not be thesubject of Surah 4, verse 15, which orders that, with the incrim-inating testimony of four witnesses,“those (fem.pl.) among yourwomen who approach lewdness (al-fahisha)” are to be “con-fine[d] to houses until death claims them, or God ordains forthem some (other) way.”25 The precise relationship of the provi-sions of this verse to those on zina has been a topic for muchdebate. Does the verse “ordaining” flogging abrogate the oneordering confinement, or does this verse refer to a punishmentfor same-sex acts distinct from that for illicit sex between a manand a woman? This verse does not specify “two women,” whichwould have been possible using the dual form. Immediately fol-lowing, Surah 4, verse 16 also addresses illicit behavior, using themasculine/inclusive dual “two … from among you.” As with alldual or plural masculine forms in Arabic, it can include bothmale and female, and there has been disagreement among com-mentators as to whether this verse refers to two men by contrastwith the preceding verse, which specifies only females (thoughnot two women), or a male-female pair, also grammatically pos-sible.26 Male same-sex acts, however, are mentioned on severaloccasions in conjunction with the story of the Prophet Lot,
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which is the constant referent for both classical and contempor-ary discussions of all same-sex sexual activity.
Contemporary scholars disagree sharply about theQur’anic perspective on same-sex intimacy and desire as pre-sented in the Lot story. Duran presents the conventional viewwhen he states that the Qur’an “is very explicit in its condemna-tion of homosexuality, leaving scarcely any loophole for a theo-logical accommodation of homosexuals in Islam.”27 In contrast,Kugle argues that “the Qur’an does not address homosexualityor homosexuals explicitly[.]”28 Rather, the sacred text (like thejurists’ writings) addresses particular acts, saying nothing about“identities”and very little about desires. The revisionist attemptto promote a new, more inclusive view of Qur’anic teachings onsame-sex sexual acts, desires, and orientations relies on a dis-tinction between the Qur’anic condemnation of particularsame-sex acts, in this case those of the townsfolk in the Lot story,and the possibility of divine acceptance of other forms of same-sex relationships.
In order to interpret the Lot story as something besidesan “explicit … condemnation of homosexuality,” scholars haveused two main approaches. First, they have explored otheraspects of the Lot story beyond the issue of same-sex acts.Second,they have argued that even if the acts were problematic, theywere objectionable due to a factor other than those involvedbeing of the same-sex. As to the first point, the commentarialtradition and conventional wisdom have erred, Amreen Jamalshows, by placing undeserved emphasis on sexual deviancy asthe particular sin of Lot’s people.29 Building on Jamal’s work bypainstakingly assessing the work of several prominent pre-modern exegetes, Kugle demonstrates that “Word-for-wordreplacement in classical commentaries has given rise to thedubious equation of the divine punishment of Lut’s people witha condemnation of homosexuality and juridically enforceablepunishments for same-sex acts.”30 The transgressions of Lot’scommunity were far more extensive and far-reaching than sexual misconduct. Spiritual corruption has been reduced to sexual transgression,undeservedly narrowing the divine guidancecontained in the stories of Lot’s people.
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Although these scholars make a compelling case forunderstanding the sexual transgressions of Lot’s people in alarger context of disbelief and moral turpitude, I am less con-vinced by their suggestion, echoed by a number of advocacygroups, that the townsfolk’s behavior was objectionable notbecause they sought same-sex intercourse but due to other con-siderations including their lack of concern for Lot’s visitors’consent.31 The argument that the Qur’an objects not because the men in question sought same-sex intimacy but ratherbecause they intended non-consensual violation rests on anassumption that consent is necessary for an ethical or lawful sexual relationship. However, elsewhere in the Qur’anic text, aswith female captives (“what your right hands possess”), consentis not always relevant to the formation of licit sexual relation-ships. Further, Lot offers his daughters to the marauding towns-folk without any indication that their consent mattered.32 Thedaughters’ lack of consent is quite striking, whether it is to simple paternally sanctioned sexual use by the would-be rapistsor to marriage as a licit sexual outlet for the men. Kugle arguesthat this is not a case of valuing male over female, but ratherguests over family members “who happen to be female.”33 Onecould argue that in the case of premodern patriarchal societies,only paternal consent mattered. In that case, could Lot haveoffered his sons to the men with equal impunity?
The more significant obstacle to reinterpretations of theLot story is that the Qur’anic text seems to object clearly to themen’s sexual object choice: these men approach men in prefer-ence to those whom God created to be their mates.34 One way ofgetting around this objection would be to argue that men whowould otherwise choose female partners were opting to seek sexwith men – this argument would be compatible with the view,expressed by some queer Muslim authors, that there are mencreated to take male mates, a notion I discuss below. There isstrong justification for reading the Qur’an to suggest that malesand females are created to mate with one another, and any choiceto deviate from that path is blameworthy.
One cannot understand premodern Muslim scholars’interpretations of the Lot story without considering how their
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views on same-sex desire and sexual activity differ in crucialways from those held by modern Westerners, including someMuslims. Their concerns were largely for actions, not orienta-tions. That is not to accept the once-conventional view that any“homosexual” identity is a purely modern invention, and pre-modern thinkers knew only acts. Premodern texts, as scholar-ship in other contexts has shown, can present specific sexual actsas “more or less related to sexual dispositions, desires, and sub-jectivities.”35 Even where specific identities were associated withthe performance of particular acts, these were not consistentacross time and place, nor are they identical to contemporarynotions of “homosexual,” “gay,” or “queer.” The exegetes andjurists’ understandings of male/male sexual activity do not takeinto account the possibility of a partnership where both menconsider themselves “gay,”36 but rather presuppose an age- andstatus-stratified asymmetrical relationship between unequalpartners.
There are crucial similarities between classical Greekand Roman views on male/male sex and the norms (and prac-tices, so far as historians can tell) of elite medieval Muslim culture. Muslims in the region generally accepted the ancientMediterranean model, based on hierarchical notions of pene-tration, where no stigma except perhaps that of profligateattaches to an adult male who penetrates but where a free adultmale who allows himself to be penetrated suffers stigma.37 Evena preference for male youths over and above female partners,explored satirically by ninth-century littérateur al-Jahiz in hisfamous essay “Maids and Youths,”38 did not make a man “homo-sexual” in the sense that Duran or Kugle uses the term. Maledesire to penetrate desirable youths (generally, although notalways, defined as “beardless,” amrad) was perfectly normal – ifnever lawful – and not necessarily indicative of a deviant subject-ivity, desire, or a particular sexual orientation.39 The common-place, not pathological, nature of such desire is illustrated byReliance of the Traveller’s passing mention of the “handsomebeardless youth” in its discussion of circumstances under whichit is permissible or impermissible for a man to look at a femalewho is not his wife, slave, or kinswoman. Notably, Keller omits
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this portion of the text from his late twentieth-century Englishtranslation.40
Don’t ask, don’t tell
Despite the widespread medieval acceptance of same-sex desirebetween men and attractive male youths, Muslim thinkers tookfor granted that such sexual relations were neither licit nor pos-sible to legitimize. Yet the explicit condemnation of same-sexsexual activity in medieval Islamic legal thought and by mostcontemporary Muslim thinkers has been tempered by tacit tol-erance for its practice, provided some degree of discretion isobserved. As Abdelwahab Boudhiba argues, “The fact thathomosexuality” – he means same-sex acts – “was always beingcondemned proves only one thing: neither the religious nor thesocial conscience could put an end to practices that were disap-proved of by Islamic ethics but to which in the last resort societyclosed its eyes.”41 Steven Murray, discussing both male/male andfemale/female sexual relations in present-day Muslim contexts,has referred to this unwillingness to acknowledge what is anopen secret as “the will not to know.”42 While certainly someaspects of this logic governing same-sex encounters is specific,the overall logic of refusing to point out sins that are not crimesis not unique to same-sex sexual intimacy. Rather, it is part andparcel of a general insistence on not attempting to pursue poten-tially incriminating information about one’s fellow Muslims orto disclose it about oneself.
The unwillingness to seek out and condemn instances ofsame-sex sexual activity, the preference to let them pass by, if notunnoticed then unnamed and therefore unpunished, makessense where same-sex sexual activity, like any sexual activity out-side of marriage, is considered a criminal and therefore punish-able offense. For this reason, “don’t ask, don’t tell” norms makesense at a practical level, as a strategy to avoid persecution andprosecution. In North America and Western Europe, however,the situation is fundamentally different. In modern Westerncontexts, the question emerges of the Muslim population’s
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reactions to the larger scale acceptability of same-sex relation-ships in the broader society. While some Muslim leaders havebeen outspoken opponents of “gay rights,” a few Muslim organ-izations and individuals who avoid addressing same-sex sexualintimacy from a religious perspective have come out in favor oftolerance and even acceptance of gays and lesbians as a matter ofcivil or human rights. In doing so, they sometimes make an ana-logy between discrimination against Muslims and discrimin-ation against sexual minorities.43 For example, the president ofthe Muslim Canadian Congress endorsed same-sex marriagelegislation in early 2005, declaring that “It is incumbent upon us,as a minority, to stand up in solidarity with Canada’s gays andlesbians despite the fact that many in our community believe ourreligion does not condone homosexuality.”44 Her remarksimplicitly distinguish between Muslims, on the one hand, andgays and lesbians,on the other: although both are minorities, shedoes not acknowledge any potential overlap between the cate-gories. Yet she leaves a space open for interpretation, claimingnot that Islam “does not condone homosexuality,” but merely“that many in our community believe” that to be the case.
Muslim discussions of “other people’s homosexuality”are less controversial than intra-Muslim dynamics when someMuslims desire or adopt a “gay” identity (as opposed to merelyselecting a sexual partner of the same sex).45 Moderate and lib-eral Western Muslim discourses display an acceptance of thenotion of innate sexual orientation but do not question trad-itional religious prohibitions of same-sex activity. The “don’task,don’t tell”philosophy informs views such as those presentedin the Muslim Women’s League position paper, “An Islamic Perspective on Sexuality.”In a subsection on “Homosexuality,”itstates that:
Human beings are capable of many forms of sexual expres-sion, orientation and identification. The existence of suchvariety again is not found in any other species and thus fur-ther demonstrates our uniqueness among God’s creations.The potential for behavior, such as homosexuality, does notmean that its practice is lawful in the eyes of God.Therefore,
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individuals are expected to control themselves and not acton their desires if such action is contrary to the guidelines ofIslam. Homosexuality, like other forms of sexual relationsoutside of heterosexual marriage, is thus prohibited.46
The statement goes on to imply that individuals shouldnot seek to “prosecute or judge” those known to engage in “pro-hibited acts;” only conviction through witnessing or confessioncan allow for “punishment by the State.” In the absence of pun-ishment, those who engage in such acts “will then deal with theconsequences of their behavior in this life and will be account-able to God on the Day of Judgment. How He ultimately judgesis known only by Him.” The most obvious aim of this statementis to argue against the imposition of punishments for “homo-sexuality,” but since this is an American group, writing in theUnited States, the question of punishment is effectively moot.More relevantly, the exhortation not to “prosecute or judge”maintains the fiction of social harmony and adherence to rulesby not exposing behavior “contrary to the guidelines of Islam.”
In seeking to avoid public acknowledgment of same-sexsexual activity, the Muslim Women’s League statement con-tinues the traditional legal stance toward same-sex behavior; inother respects, however, it departs quite dramatically from theclassical understanding that governed discourses surroundingsame-sex attractions in acknowledging not only the possibilityof an exclusively homoerotic “orientation” but also its poten-tially God-given nature. This view is shared by a number ofMuslim groups from across the socio-political spectrum; notonly Muslim gays and lesbians seeking a “theological accommo-dation” of their sexuality, but also some conservative Muslimswho strongly oppose any such accommodation, agree on themodern idea that homosexual orientation is an inborn com-ponent of the human psyche.47 The question of whether theinnateness of desire requires an acceptance of same-sex sexualactivity, however, is subject to strong disagreement.
Conceding the naturalness or God-givenness of anexclusively same-sex oriented desire puts conservative scholarsinto a logical bind. An essay by British Muslim Abdal-Hakim
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Murad, “Fall of the Family,” exemplifies the perils of thisapproach. Murad accepts “homosexuality as an innate dispos-ition”in some (though not all) cases, seeing a potential biologicalbasis for it.Yet, like the Muslim Women’s League, Murad stressesthat there are no circumstances under which an individual withhomosexual “tendencies” – which he likens to the impulses of apyromaniac “mental patient” – can lawfully act on his or herdesires. The only religiously acceptable option for someone witha homoerotic orientation is permanent chastity: Murad sees it asa test from God. His stance coincides with the Muslim Women’sLeague statement that “individuals are expected to controlthemselves.” However, this expectation of self-control as adefense against sexual sin runs contrary to what is prescribednot only by most medieval texts, but also by Murad elsewhere inthe same essay, which focuses primarily on male/female sexualmisconduct. He argues in favor of sex segregation in daily lifewhere practical, to assist in maintaining sexual morality by sup-pressing opportunities for illicit sex; most individuals, heclaims, are not super-moral figures who can reject temptationwhen freely accessible.48 (Ironically, he does not consider theeffects of sex segregation on those who are exclusively attractedto members of the same sex.) Even in a largely temptation-freesociety, there must be lawful outlets into which sexual desire canbe channeled.49 For heterosexuals, this lawful channel is mar-riage, but for those with exclusively homoerotic desires, therecan be no lawful satisfaction of desire. (Most medieval Muslimauthors did not confront this precise problem, at least insofar asthe desire for attractive male youths was generally not con-sidered solely a desire for them; it was the same desire as thatdirected toward women, and could therefore be sated with lawful partners.)
If one accepts that exclusive desire for partners of thesame sex is (at least in some cases) natural and divinely origin-ated, and acknowledges, as Murad does, that long-term abstin-ence from all sexual contact will likely fail for most individuals,then one presumes that most Muslims with orientations towardmembers of the same sex will commit transgressions. The stresson not discussing these sexual acts creates a safe space for
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transgression to occur without challenging the normative viewthat such relations are forbidden. At the same time, while suchrelative freedom to act has some benefits, it also puts individualsin danger from the usual concomitants of illicit liaisons (withpartners of whatever sex), including not only the spread of HIVand other sexually transmissible diseases but also the unethicalbehavior of possibly betraying marriage vows and, indeed, one’sself-respect.
The naturalness of same-sex desire for certain individu-als constitutes the basic point of departure for queer-positiveMuslim organizations. As the Rainbow Crescent websitedeclares, in what is presented as an appeal to “Logic and Reason,”“being Gay is not a matter of choice – but rather a divinely cre-ated reality.” The exclusion of “Gay people” “from Islam …would be excluding a whole dimension of The Creation and thiswould in fact undermine any claim by Islam to be The Truth(which it is).”50 This tactically shrewd position removes the element of choice from the equation; gay (and lesbian) Muslimscannot be blamed for something innate. As intended by somegay-positive Muslim discourses, the acceptance of the view thatsexual orientation is not a matter of choice but rather divinedecree creates a space for queer Muslims to press for religio-legalacceptance of same-sex relationships, however unlikely wide-spread acceptance of this view seems as of this writing.
However,aside from the social difficulties such a strategyfaces, the “just created that way”51 discourse of sexual identity is afundamentally ahistorical move, and requires one to ignore thecomplex ways in which same-sex desire and practices have oper-ated in other times and places. What accounts for the fact thatmen’s sexual desire for other men in the past – or in non-WesternMuslim contexts today – is not viewed as “innate” in the sameway? A Foucauldian approach, recognizing the historicity ofdesire and its representations in social and individual contexts, isattractive for historians and scholars concerned with under-standing the past.52 How does it work, though, to transform thepresent and shape the future, if one is concerned with determin-ing God’s stance on sexual licitness and following it? JeffreyWeeks argues convincingly for understanding sexual identities as
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“necessary fictions” and “historical inventions,” and themselves“sites of contestation,”53 but how does this matter to a Muslimconcerned with whether God approves of his or her partnerchoice and form of relationship? Is there a middle groundbetween essentialist and constructionist views of sexual orienta-tion and desire,where Muslims can grapple with same-sex sexualorientation – their own or that of other Muslims? Is it possible tothink that individuals are neither “created” to think and act in aparticular way nor do they simply “choose” a homoerotic orien-tation? What does the view of “the erotic as highly socially malleable”54 mean when one confronts the Qur’an which is botha timeless text and a historically contextualized one?
There is broad agreement among Muslim thinkers thatindividuals bear moral responsibility for any sexual acts thatthey engage in by free choice and that illicit desires themselves donot result in any culpability before God. If one accepts the viewthat homoerotic desire is neither freely chosen nor inherentlyblameworthy, but can have no licit satisfaction, then one is leftwith the untenable stance that those who desire a satisfactionthat cannot be obtained through licit means are, through nofault of their own, destined to choose between a celibate lifedevoid of sexual gratification and one of sexual release obtainedthrough sin.55 Both options are unpalatable. One avoids havingto choose between these unacceptable alternatives if one rejectseither the innateness of homoerotic orientation or the inherentsinfulness of all same-sex intimacy. If one holds that same-sexdesire is not innate but rather constitutes freely chosen debauch-ery (as in the case of the men of Lot’s story), then one does notconfront the issue of divine injustice in creating individualswithout providing the means for them to fulfill lawfully theirbasic human need for sexual expression. Yet this notion that anexclusive same-sex sexual attraction is freely chosen is problem-atic for a variety of reasons, including its lack of conformity withthe expressed experience of modern Western queer individuals.
The other alternative is to accept, in contrast to the neartotality of Muslim thinkers, that homoerotic desire is innate andthat its satisfaction through lawful means is possible. This viewrequires tricky exegetical maneuvering around the male/female
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dynamics of various Qur’anic verses describing creation andmating,56 but can be reconciled with the view that same-sex actsbecome reprehensible or forbidden when,and only when, same-sex intimacy is freely chosen as a transgressive act by those whowould ordinarily seek satisfaction with different-sex partners. Itis only in this case, where same-sex desire is viewed as not sinfulbecause it is part of a divine plan, that recognition and legit-imization of intimate partnerships between same-sex couplesbecomes an objective.
Murad’s terminology proves helpful in thinking aboutthis new perspective. He does not identify those who have or acton same-sex desires as homosexuals, considering private behav-ior outside the realm of social concern. Rather, he uses theintriguing, if awkward, term “homosexualist,” reserving it forthose who seek to make same-sex intimacy a publicly respectableform of socio-sexual partnership. In this, he revalidates the con-ventional view that illicit sexual activity is a matter between anindividual and God but that challenges to religio-legal regula-tions constitute a major transgression. Monogamous marriagebetween two men or two women, in its insistence that same-sexrelationships can be licit, is a more disturbing prospect thanmultiple casual sexual relationships that, even if they constitutesomething of an open secret, nonetheless do not directly chal-lenge the prohibition of same-sex intimacy.57
Same-sex marriage
Muhammad Abdul-Ra’uf, writing in 1977, declares that “toler-ation of an evil leads to other evils. First, we condone public exposure [of women’s bodies]; next dating and easy mixing; next,pre-marital ‘games’, extra-marital relations, and open marriages;next, the elevation of homosexuality to an acceptable moral status; and next, uni-sex marriages. Where, and when, shall westop?”58 In this litany of increasingly serious “evils,” same-sexmarriage is the worst Abdul-Ra’uf can imagine. Yet, aside fromthe question of what makes it an evil – divine censure being the obvious answer for Abdul-Ra’uf – the notion of relative
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seriousness of sinful acts is an interesting one to apply to the caseof same-sex intimacy. The acts he discusses as “evils” are uni-formly consensual acts; there is no mention of rape, sexual abuseof children, or any other inherently coercive practice, such asnon-consensual marriage or slave concubinage – practiceswhich would undoubtedly violate his twentieth-century sens-ibilities, but which were widely accepted by Muslim scholars ofpreceding centuries.59 Just what about same-sex marriage makesit so threatening that it becomes the pinnacle of all sexual sins?
When Abdul-Ra’uf was writing in the 1970s, same-sexmarriage was not even on the horizon for nascent gay-rightsmovements in the West. A few years into the twenty-first cen-tury, marriage between persons of the same sex has gained legalstanding in several places in Europe and North America, includ-ing the U.S. state of Massachusetts. The notion of marriage of aman to a man or of a woman to a woman is completely outsidethe frame of reference for classical Muslim jurists. Most do noteven consider it a possibility in order to dismiss it. Even where itis mentioned, it is merely as a brief disqualification in terms ofwho can marry. The definition of nikah in the Durr al-Mukhtar,a seventeenth-century Hanafi commentary on an earlier legalmanual, makes a claim regarding gender as relevant to marriage:
[Nikah] according to jurists is a contract which is product-ive of an exclusive right of enjoyment, i.e., which validatesthe enjoyment by a man, of a woman, with whom marriageis not prohibited by reason of any legal impediment. Thusare excluded (from the objects of enjoyment) a male, anidolatress, a hermaphrodite – because of the possibility ofthe hermaphrodite’s being a male – prohibited females,60 ajinnee woman, and a watery person [insan al-ma’] becauseof the difference of genus.61
This text definitively sees maleness as an impediment tomarriage with another male, so much so that hermaphroditesare forbidden as marriage partners on the grounds that theymight be male. (Note, of course, that this formulation assumesevery individual has one true sex, even if ambiguous genitaliaand secondary sex characteristics make it difficult or impossible
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to determine.) Marking it as a text of its time, the text also rejectsmarriage between a man and a female spirit ( jinn) or “a wateryperson.” Notably, while the gender of the jinn is specified asfemale – presumably, the prohibition against marriage to a maleapplies to the jinn as to the human – the prohibition of marriageto “a watery person”is gender-neutral. It is not the lack of genderfixity but “the difference of genus” that renders merpeopleunsuitable as marriage partners, apparently.
In Muslim history, the relationship between sex, gender,and desire is far more complex than simplistic binary regulationswould suggest. Rusmir Music, writing of “an essential ambigu-ity” within Muslim legal categories, argues that “Islam’s juristsrepeatedly allow for exceptions, though they profess to be pre-serving immutable boundaries ordained by God.” While in someways these ambiguities should open up space for a queer project,they do not function in the jurists’ works to create such a flexiblesystem. Rather, “the uncertainties allowed by Islamic jurists,otherwise interested in neatly ordering all aspects of life, pre-dominantly serve to preserve a power hierarchy benefitingmen.”62 A brief discussion of classical legal treatment of her-maphrodites and the modern question of sex-change operationsmake clear both the room for accommodations in the Islamicsex/gender system and the limits to that ambiguity. While thereis space for (temporary) ambiguity in the realm of sex – meaningbiological determinations of maleness or femaleness assigned toa particular body – there is little tolerance for ambiguity in sexu-ality – that is, with whom a person of a particular sex may havesexual contact.63 The connection between bodily sex, sociallyascribed gender, and sexual “orientation” is crucial.
Classical and medieval texts accept the existence of caseswhere assigning sex to a particular body, and therefore gender toa particular person, is not automatic. While a number of testsand tactics allowed for resolution of the question in most suchcases, in the stubborn instance of the “problematic hermaphro-dite” (khuntha mushkil), the jurists failed in their attempts toassign gender to what Paula Sanders calls the “ungenderedbody.” In modern understandings, some jurists adopt a similarframework to justify sex-change operations as not correcting an
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indeterminacy but rather realigning body with reality – in effect,uncovering the “real” or “true” sex of the person in question.Some progressive scholarship has viewed these operations as awatershed, but the acknowledgement of the existence of trans-sexuals is not more of a challenge to the standard jurisprudentialdiscourse of sex/gender than that of the hermaphrodite in clas-sical and medieval discourses, nor is a person of ambiguous sexa challenge to the binary system once properly categorized.64
The danger from transgendered individuals is lessabout biological sex than about sexuality and its licit exercise.65
Some of those who objected to one Egyptian surgery, whereSayyid became Sally – and to her reclassification as a woman –did so on the grounds that the relevant factor was not that ofSally’s innate sense of gender but rather of sexual object choice.That is, it was not that Sayyid really was a woman, but thatSayyid wanted to have a woman’s body in order to be able (law-fully) to have sex with men.66 Specifically, she (or rather, he,because in the view of those who opposed the reclassification,there had been no change, only mutilation) “was fundamentallya khawal, that is, an effeminate man who is willing to play a pas-sive, female role in sexual intercourse with other men.”67
Returning to the subject of same-sex marriage, itbecomes clear that the impermissibility of formalized same-sexrelationships is only partially due to a prohibition on same-sexsexual activity.Same-sex marriage fundamentally challenges thebasic structural premises of marriage as a contract. It is not justin the sex act that male and female are differentiated, but in thelegal control over said act, in the legal right to claim it, in the legalright to form the relationship permitting it. I have shown thatthe boundaries of licit sex in Islamic jurisprudence – a man withhis wife or his own female slave, both of whom are in some sense“owned”– require an exclusive dominion as a correlate of lawfulsex. Male owners may have sex with female slaves but not (lawfully) with male slaves, and female owners may not havesexual access to their slaves of either sex. Men are the only onespermitted to be “owners” in this sense, and only women may be“owned.”Ultimately, Murad and Abdul-Ra’uf are correct: same-sex marriage represents a more fundamental challenge to norms
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governing sexuality than does any type of illicit or clandestineunion, precisely because viewing such a union as a marriagechallenges the definition of licitness itself.
The legal structure of Islamic marriage is predicated ona gender-differentiated allocation of interdependent claims,which would be thrown into chaos by a same-sex union. In thestandard contractual understanding of marriage, the husbandholds milk al-nikah, control of the marriage tie, and the wife hasa claim to dower and the obligation of sexual exclusivity andavailability. Several early jurists considered the possibility ofwhether these rights and duties could be reallocated – whether awoman could pay a man a dower, for example, and retain con-trol over sex and divorce – and agreed unanimously that such areallocation is not permitted. Not only are husbands’ and wives’rights distinct, but each role is fundamentally linked to thesex/gender of the person exercising it. A woman cannot wieldcontrol of the marriage tie; a man cannot be contractuallybound to sexual availability to his wife. Thus, following thatlogic, it would not be possible for one woman to adopt the “husband” role and the other to adopt the “wife” role in the marriage of two women. The self-contained logic of thejurisprudential framework does not permit such an outcome.68
Conclusion
Same-sex intimacy cannot be separated from discussion ofother topics in sexual ethics because the rules making a same-sexmarriage unthinkable emerge not primarily, or at least notexclusively, from an explicit prohibition of same-sex activity butrather through the legal construction of marriage and sexualrelationships as both gendered and hierarchical. Many of thesame things that would be necessary to make marriages moregender-egalitarian would be necessary precursors to anyattempt to think about same-sex partnerships. Of course, this isone reason that some will argue that such attempts to reformmarriage do in fact lead inexorably down a slippery slope tosame-sex marriage. The measures necessary to reformulate the
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nexus of marriage in the direction of egalitarian and fullymutual relations between men and women do not remove ser-ious obstacles to the legitimization of same-sex acts, above allthe notion that male and female are created to be mates for oneanother. However, if one sets aside macrocosmic issues, howevercompelling, and turns to ethical and legal reflection, one mustask whether there is some absolute standard on which same-sexintimacy can be compared to other forms of intimate partner-ship. Are consensual, exclusive, and long-term same-sex unionsmorally worse than slave concubinage, or serial marriage andremarriage? Are they worse than abusive marriages?69 The issueof consent in weighing the ethicalness of certain acts has rele-vance far beyond the issue of same-sex relationships. The com-ment made by “an American Muslim” on the Muslim WakeUpcomment boards discusses sex outside of marriage. She does notexpand her point to same-sex relationships, but others do. She isunable to understand how a consensual adult relationshipbetween a man and a woman if committed to one another couldbe wrong, even outside of marriage, because she is operatingunder a fundamentally different logic of licitness than themedieval jurists. Indeed, the jurists saw a consensual relation-ship between two free men as significantly worse – and deserv-ing of hadd punishment for both parties – than a coercedrelationship between a man and his male slave.70 Such sexual usewas not lawful, but the master’s ownership sufficiently resem-bled his ownership of a female slave to give rise to a legal protec-tion. A recent news report described a Saudi man who has wednearly five dozen women and girls in his lifetime (and divorcedall but the last four).71 He has clearly acted in a legally valid, ifreprehensible, manner. However, two men or two women wholive together in a lifelong pseudo-marital union, remainingfaithful, cannot be said to have acted lawfully according tojurisprudential rules – but have they done something unethical?Is lawfulness a prerequisite, if not a sufficient guarantor, ofethical behavior? Confronting same-sex sexual relationshipsand acts challenges us to define sexual lawfulness and ethical sex for all intimate partnerships, including those between menand women.
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6“I as Imam would like, with my colleagues, to turn to the Islamic world,particularly in Africa, and inform people that female genital mutilation isprohibited. It is a matter of abuse and violation of the female body and isquite clearly forbidden according to Islam.” Swedish Muslim leader Sheikh Omar Ahmed, November 20031
“Circumcision is obligatory for every male and female. [For men,] it consists of cutting the foreskin of the glans of the penis, while female circumcision consists in cutting the clitoris and is called reduction.”Reliance of the Traveller, classic Shafi‘i legal manual2
Who determines whether a particular practice is Islamic? Is itGod, via the literal words of the Qur’an? The Prophet and, sec-ondarily, his Companions, as their statements and actions havebeen recorded in books of hadith? Should such determinationsbe based on the judgment of the religiously trained scholars, the‘ulama, who interpret these sources in works of exegesis andjurisprudence? Or perhaps what is Islamic might be better identified with the actual practice of Muslims rather than anynormative ideal. In that case, what happens when practices varydramatically among Muslims, or when what Muslims do con-travenes the authoritative texts? When views have shifted overtime, do earlier ideals or practices have more weight or does thecontemporary state of affairs take precedence? Much of the con-fusion and imprecision in Muslim and non-Muslim discussionsof controversial issues results from a lack of clarity about thescope of the claims made.
“Reduce but do not destroy”:Female “Circumcision” inIslamic Sources
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The two epigraphs to this chapter make seemingly con-tradictory claims about female genital cutting. The classicallegal text calls it circumcision and pronounces it “obligatory,”while the contemporary imam calls it mutilation and declares it“forbidden.”This chapter will explore why these divergent viewsexist, how they are expressed, and why they matter for themajority of Muslims who are from regions where female genitalcutting, or FGC, is not practiced. I tackle this subject with sometrepidation, as I am not an expert either on FGC or on thoseregions of the Muslim world where forms of excision are mostfrequently practiced. Given the history of resistance and legit-imate resentment surrounding Western intervention on thisissue, I want to make clear that, while I ardently support the ultimate eradication of all forms of female genital cutting on avariety of grounds, I am not attempting to set myself up as anauthority as to how reform should best be achieved; women andtheir male allies from regions where FGC is practiced must be atthe forefront of any movement for change.3 I have chosen toaddress the topic here as a case study of how religious sourcesand authority are marshaled and manipulated, and to illustratehow the demands of scholarship and advocacy can clash.
Although undoubtedly well meant, Shaikh OmarAhmed’s claim to present the definitive Islamic view on what heterms “female genital mutilation” fits into patterns of modernlegal authoritarianism, as described by Abou El Fadl. It alsodovetails with an apologetic discourse that pervades much Muslim English-language discussion of the subject. This stanceresults in, among other things, misleading translations of keyterms and passages from legal and hadith texts even in otherwisescholarly works. The evasion and misdirection surrounding thetextual basis for acceptance or rejection of female genital cuttingis due to desire to combat negative stereotypes of Muslims aswell as to abolish the practice itself. At stake is who has the rightto decide what counts as normative for Muslims, and whatauthority, if any, the determinations of the classical jurists, whotreated female circumcision approvingly, should have today.
There are solid reasons for Muslims to reject female genital cutting without making grandiose claims about its
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“un-Islamic”nature, but such an approach requires a willingnessto treat not only jurisprudence but also sunnah and hadith asproducts of their time, with limited currency as formal rules forcontemporary application. Thorough and honest discussions ofcontroversial practices such as female genital cutting must movebeyond simplistic binaries of “Islamic” and “un-Islamic” or lawful/prohibited to a more complex scheme of ethical and moralvaluation. Engaging with the complexities of the tradition isworthwhile in issues of sexual ethics far beyond the matter ofexcision. Nonetheless, although it is all well and good to proclaimthe need for greater sophistication in methodological approachesto understanding the relationship between religious and custom-ary practices, for those concerned with practical reforms,sweeping claims about “Islam”’s forbidding of female genitalmutilation (FGM) may be more effective than detailed investiga-tion of the layered jurisprudential treatment of the subject.
Islamic or un-Islamic?
The debate over whether or not female circumcision is “Islamic”is a specifically modern way of framing the question, althoughthe relevance of Islamic legal categorizations to Muslim life isages-old.4 The “Islamic-ness” of excision is relevant to ongoingcontroversies because internal Muslim debates occur in a con-text of Western scrutiny and criticism. Externally motivatedattempts to stop all female genital cutting began with Europeancolonial officials and have continued through the efforts ofWestern feminists and some missionaries. (Notably, at the timeWesterners were beginning to campaign against FGC in Africa,clitoridectomy was being selectively practiced in England andthe United States as a cure for various female ailments.) Thedesire to combat stereotypes of Islam as uniquely misogynist isthe primary motivation for many to argue that FGC is not an“Islamic” practice. Noor Kassamali, a physician with clinicalexpertise as well as activist credentials in the struggle againstwhat she prefers to call female genital cutting, suggests that the“alleged association of Islam with FGC”by “the Western media”
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is “an even more basic issue” than whether it is “Islamic” or not.She argues that the portrayal of the practice “as a violent customwhose aim is to subjugate women and girls … perpetuates thestereotype of Islam as a violent faith and of Muslim women assubjugated and submissive.”5 This outwardly focused critiquereflects a set of power relationships that often does stand in theway of an honest scrutiny of Muslim practices.6 At the sametime, it is naïve to expect Muslims to be entirely unconcernedwith dehumanizing stereotypes when the resultant Othering ofMuslims contributes to the devaluation of Muslim lives andserves as justification for violence and repressive internationalpolicies.
In any case, female genital cutting is neither universalamong nor exclusive to Muslims. The majority of Muslims donot practice any form of female circumcision and where it iscommon, it is generally performed by members of all religiousgroups; in Egypt, for instance, both Muslims and Christianspractice female genital cutting. Kassamali notes that “Muslimgroups that practice this custom often cite religious justifica-tions … [y]et religion is not a determining factor.”7 The severityof the practice – which varies considerably – depends on vari-ables of locale, educational attainment, and socioeconomic status, rather than religious affiliation.8 In the majority ofMuslim societies, by contrast, female circumcision is virtuallyunknown. In those regions where it is practiced, it almost alwayspredates Islamization.9 Exceptions occur in instances whereimmigrant groups carried the practice with them to new areas.10
In Southeast Asia, female circumcision seems to have beenunknown before the coming of Islam; in Malaysia and Indo-nesia, only Muslims practice female circumcision. One canspeculate that the transfer of the practice to this region is due tothe historical pre-eminence of the Shafi‘i law school there. TheShafi‘is, unlike the other Sunni schools, have held that circumci-sion is obligatory for females as well as males, as the passagequoted at the beginning of this chapter demonstrates.
Several typologies describing female genital cutting dif-ferentiate between less and more severe procedures.11 The leastinvasive procedure falling under the rubric would be the
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removal of the prepuce or hood of the clitoris, effectively analo-gous to the removal of the penile foreskin that constitutes malecircumcision. This delicate operation – clitoridotomy, butsometimes erroneously called clitoridectomy – is rare, especiallyin Africa, and, in any event, is extremely difficult to perform onsmall girls where it can be difficult to distinguish between theclitoris and its prepuce. Clitoridectomy more properly refers tofull or partial excision of the clitoris itself; this procedure may ormay not involve removal of part or all of the labia minora. Themost drastic form of genital cutting is infibulation, where notonly the clitoris and labia minora but also portions of the labiamajora are removed, and the vaginal orifice sewn closed, withonly a small aperture left for the release of urine and menstrualfluid. Often known as the “pharonic” circumcision, it is common in certain parts of Africa such as the Sudan. The finaltype of “circumcision” escapes the name FGC, because in manycases it involves only a symbolic pricking, rubbing,or scraping.12
This type seems to be most common in Southeast Asia, althoughit has been advocated and implemented occasionally elsewhere,including in Africa, as an interim measure in the struggle towarderadication.
Beyond combating stereotypes, the desire to eradicatefemale genital cutting is the second, and more compelling, reasonfor denying it normative status. Sheikh Ahmed’s statement,perhaps inadvertently, heeds an appeal issued by activist AsmaA’Haleem several years earlier for “a final religious announce-ment clearly stating that [female circumcision] is a form of muti-lation and therefore forbidden. It is not sufficient for religion toshun female circumcision. Religion should be used as a tool forcondemning and preventing its occurrence.”13 A’Haleem’s state-ment raises crucial questions about how Muslim thinkers are toengage in public discourse, and if it is ever acceptable or evenultimately productive to engage in methodologically problem-atic oversimplifications for strategic aims, if the alternative is notbeing able to affect oppressive social and cultural practices.
The instrumental use of religion promoted by A’Haleemreturns us to contests over the meaning of the term “Islamic.”Onedefinition would hold that Islamic can be properly used as an
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adjective to describe anything that significant numbers ofMuslims do. If this were the only salient definition, then FGCcould reasonably be called Islamic on these grounds, at least forcertain regions of the Muslim world. However, this definitionlacks rigor: many Muslims do, in fact, drink alcohol despite itsclear prohibition in scripture and jurisprudence. Another level ofdefinition reserves the term for a practice that is defined by itspractitioners as religious: Muslims who drink alcohol would notdream of suggesting such a practice is permitted, let alone encour-aged or mandated, by their religion, but those Muslims who practice female genital cutting often justify it with reference toIslam. Opponents of the practice seek to undercut this rationalewhen they insist that “FGM is a practice of culture,not religion.”14
FGC, however, is not merely a customary practiceincorrectly understood as having religious authority despite itslack of sanction in authoritative scholarly sources. Rather,female circumcision of some type is either recommended orrequired by the dominant classical view of all Sunni schools of Islamic jurisprudence, and seems to have been generallyapproved by Shi‘i jurists as well.15 Jonathan Berkey surveys thelegal literature, and demonstrates that although jurists’ opin-ions “differ[ed] in nuance” they “were overwhelmingly favor-able to the practice of female excision.”16 A number of modernjurists have suggested the question is open to re-examination.These include Egyptian scholars Shaikh Tantawi of al-Azhar,who has suggested that it is an appropriate question for medicaldoctors to decide, and Muhammad al-Ghazali, who noted thatthere is no account of the Prophet having his daughters circum-cised.17 Yet other members of the ‘ulama support it as either sunnah or, in the words of Egyptian jurist Gad al-Haq ‘Ali’s fatwa,“a laudable practice that does honor to the women.”18 Thus, ablanket denial, such as that by Sheikh Ahmed, that “Islam” per-mits FGC is patently false and obscures the very real status ofsome type of circumcision for women as an accepted practiceaccording to traditional jurisprudence, even if the majority ofMuslims reject FGC as abhorrent and do not practice it.
A further evaluation of the Swedish leader’s words leadsto questions of terminology. Is he being deliberately evasive,
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implicitly accepting “circumcision” while explicitly condemn-ing “mutilation”? The context in which he made his remarks, ata conference opposed to FGC, suggests otherwise. His adoptionof the terminology of mutilation used by the practice’s oppon-ents makes his position very clear. Islamic legal texts, such as that by Ibn Naqib al-Misri and ‘Umar Barakat quoted above, usethe neutral/positive term khitan, circumcision, to describe theprocedures carried out on both males and females, noting thatkhifad, “reduction” or “lowering,” is the proper term for the latter. This terminology, along with the occasional use of“tahara” (purification, also used for both male and female cir-cumcision), carries a specifically religious resonance, althoughthe manual is devoid of explicitly religious appeals to its audi-ence. By contrast, Sheikh Ahmed makes explicit appeals to religion, referring to his religious title (“I as Imam”), his targetaudience (“the Islamic world”), and the basis for his verdict(“quite clearly forbidden according to Islam”).
This declaration, which demonstrates the type ofauthoritarianism that Abou El Fadl has so forcefully critiqued, isrepresentative rather than unique.19 Rather than acknowledgingthe traditional legal view but critiquing its bases or conclusions,those opponents of female circumcision who invoke religion assupport for their position simply bypass it while claiming theirown position as “Islamic.” They may invoke, as evidence for thestance that Islam forbids FGC, the absence of Qur’anic statementon female circumcision and the lack of any “authentic” hadithsupporting it. I will address the Qur’anic point here, and turn tothe hadith sources below. A reductive definition of “Islamic,”characteristic of some feminist and reformist thought, equatesthe Qur’an with Islam. One implication of this view is thatQur’anic silence on a particular point means that there is no validreligious authority for it. Thus, because stoning as punishmentfor zina appears only in the hadith and not in the Qur’an, stoningmay be understood as an illegitimate cultural practice ratherthan a religiously mandated penalty. When it comes to FGC,many opponents point out that there is no Qur’anic mention offemale circumcision.20 The power for this argument is limited inthe realm of circumcision, however; for one thing, the Qur’an
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does not make explicit mention of male circumcision either.Most who have argued against female circumcision on thesegrounds would not likewise present male circumcision as beingun-Islamic based on the lack of Qur’anic references to it.
Other arguments speak to questions of principle ratherthan from Qur’anic silence. Although a number of anthropolo-gists have recently begun to consider the ways in which somewomen’s understanding of FGC relies on deeply ingrainednotions about female beauty and gender dimorphism, mostscholarship has shown that practices of, and justifications for,FGC relate to male control over female sexuality.21 However, thelinkage between FGC and female sexual interest works bothways: opponents have argued for the practice’s impermissibilityprecisely on the grounds of wives’ sexual rights; because it pre-vents women from achieving sexual satisfaction,“the position ofthese religious leaders is not only contrary to the Prophet’steaching but also the Qur’an.”22 Likewise, the Muslim Women’sLeague position paper on Sexuality argues that “The practice ofclitoridectomy … is totally un-Islamic because it is in direct violation of both Qur’an and hadith which clearly stress theimportance of sexual satisfaction for both husband and wife.”23
Others have taken a more wholistic approach, arguingfor the sanctity of the body from a spiritual rather than a medicalperspective. How could the jurists accept clitoral excision whenthey rejected “changing God’s creation” (taghyir khalq Allah) bytatooing, plucking hairs, or filing the front teeth to create anattractive gap between them? Egyptian physician and feministNawal el-Saadawi argues forcefully that excision of the clitoris isa violation of the divine plan for the human body:“God does notcreate the organs of the body haphazardly without a plan. It isnot possible that He should have created the clitoris in a woman’sbody only in order that it be cut off at an early stage in life.”24 Theusefulness of this argument for activists, however, is significantlylessened by the fact that the same case could be made about themale foreskin, the removal of which is virtually universallyaccepted as a religious duty.25 However, one can make a strongcase for rejecting female circumcision based on the severity ofits consequences compared to male circumcision – medical
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complications, including pain, infection, and secondary infer-tility, as well as diminished sexual response.The “changing God’screation” argument only works with those who, like Sami Aldeeb Abu-Sahlieh, also object to male circumcision. And as heacknowledges,“Male circumcision is considered to be obligatoryby all Muslims. Contrary to female circumcision, it is stillunimaginable, till today, that this practice could be prohibited inMuslim countries.”26 This unambiguously positive presentationof male circumcision in Muslim law and tradition can serve tohighlight the persistent uncertainty and unease surroundingfemale circumcision, an unease manifested in the hadith sourcesto which I now turn.27
“Reduce but do not destroy”
On what sources and using what reasoning did the jurists arriveat their conclusions that female circumcision was, at the least, ameritorious act? The scant evidence concerning female circum-cision centers on a few hadith found in collections other thanthose of Bukhari and Muslim. The most important is thisreport, collected by Abu Dawud:
A woman used to perform circumcision in Medina. TheProphet (peace be upon him) said to her: “Do not cutseverely as that is better for a woman and more desirable fora husband.”28
La tunhiki, which Ahmad Hasan translates as “do not cut severely,” might be more literally rendered “do not ruin” or “do not uproot.” Although Abu Dawud reports this hadith, hecriticizes its transmission and calls it weak. Another hadith, alsoclassified as weak, states that khitan, circumcision, is a sunnah formen and a makruma (noble act) for women. Other evidence forearly approval of female circumcision is less direct – unwittingrather than deliberate – and perhaps therefore more persuasive.One famous hadith declares that both partners in a sexual actmust perform an ablution (to restore ritual purity before prayer)
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“when the two circumcised parts (al-khitanan) meet.” It is pos-sible to explain this away as a linguistic peculiarity of classicalArabic, according to some: the less dominant part (the femaleorgan) is subsumed under the characterization of the more dominant part (the male organ).29 A more likely explanation isthat genital cutting was practiced on some women in seventh-century Arabia.30 The use of “large-clitorised” as an insult (sug-gesting that the woman in question had not been circumcised),or reference to a man’s mother as a “clitoris-cutter” assumes theexistence of the phenomenon.There are also references to femalecircumcisers in other contexts that certainly suggest some formof clitoral excision was an accepted, if not necessarily universal,practice among some Arab tribes at the time of the Prophet.
Opponents of FGC have dealt with the circumcisionhadith texts in various ways. Some scholars and activists havepointed out that the isolated hadith texts that exist on the subject are weak (e.g., mursal – missing a link in the chain oftransmitters), and thus unreliable as evidence, a point whicheven supporters of the practice generally concede.31 Alternately,or additionally, they are interpreted as recommending moder-ation of an existing practice, not the imposition of somethingunknown, a point to which I will return. In no case do the hadithconvey obligation. In contemporary English-language texts,misleading summaries or translations of the Abu Dawud hadith(“Do not cut severely”) often do much of the work of interpret-ation. To take one example, a pamphlet distributed by Minaretof Freedom and also available online quotes the hadith, explain-ing it as “one tradition of disputed authenticity [which] permits(but does not encourage) the removal of a miniscule segment of skin from the female prepuce, provided no harm is done.”32
The explanation of the command “do not ruin” as “removal of aminiscule segment of skin from the female prepuce” is reading agreat deal into the vague words attributed to the Prophet.
Jamal Badawi, in an appendix to his well-known andfrequently quoted Gender Equity and Islam, attempts to makesimilar points by interpolating several words into his own English translation suggesting specific directives that are missingfrom the Arabic: “Cut off only the foreskin (outer fold of skin
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over the clitoris; the prepuce) but do not cut off deeply (i.e. theclitoris itself), for this is brighter for the face (of the girl) andmore favorable with the husband.”33 Although the Arabic text(which Badawi does not provide) does not specify what part ofthe anatomy is mentioned, Badawi does so himself. He defineswhat is to be cut (“the foreskin,” “the outer fold of skin,” “theprepuce”) and, more importantly, what is not to be (“the clitorisitself”).As in the previous pamphlet, Badawi’s objective is not toclarify for individual Muslims how they should conduct theirpersonal affairs but rather to present Islam in a positive light toboth non-Muslim and Muslim readers who may be uncomfort-able with what they have heard, read, or been told about variouscontroversial matters.
Keller’s objective in his translation of Reliance of theTraveller is somewhat different from that of the authors just discussed, as the text is primarily a conduct manual rather thana contribution to a broader controversial literature, and he isdealing with jurisprudential doctrine rather than a Prophetstatement. Nonetheless, he makes similar changes to his Englishrendering of the passage that I translated, in the epigraph to thischapter, as “Circumcision is obligatory for every male andfemale. [For men,] it consists of cutting the foreskin of the glansof the penis, while female circumcision consists in cutting theclitoris and is called reduction.” For comparison, his translation(which involves several levels of elaboration of the text, utilizingcoded letters and parentheses to indicate commentary) reads:
Circumcision is obligatory (O: for both men and women.For men it consists of removing the prepuce from thepenis, and for women removing the prepuce (Ar: bazr) ofthe clitoris (n: not the clitoris itself, as some mistakenlyassert). (A: Hanbalis hold that circumcision of women isnot obligatory but sunna, while Hanafis consider it a merecourtesy to the husband.)[)]
Only the first three words of this passage (“Circumci-sion is obligatory”) belong to Ibn Naqib al-Misri; the wordsintroduced by “O:” represent the commentary of ‘Umar
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Barakat, who is responsible for much of the content of Keller’sReliance. The explanation of the less onerous requirements of the Hanbali and Hanafi schools, introduced by “A:” is thecommentary of a modern Syrian scholar. Only rarely, with particularly sensitive matters or those on which there is strikingdisagreement between the legal schools, does Keller typicallyinclude such material. The inclusion of these qualifications herefunctions to diminish the reader’s perception of the place offemale circumcision within religious law. The most importantfeature of this translation, however, is the definition of femalecircumcision with Keller’s own parenthetical definition (intro-duced by “n”) of the crucial term bazr.
In his translation, Keller attempts to describe the twotypes of circumcision in entirely parallel ways, which requireshim to omit certain words from the discussion of male circum-cision and add words to the description of female circumcision.The Arabic text indicates that circumcision of males requires“qata’a al-jilda alati ‘ala hashfat al-dhakar,” which Keller rendersas “removing the prepuce from the penis.”Qata’a, which he ren-ders as “removing,” I have translated, above, as “cutting” so as topreserve the potential for ambiguity in the description of the circumcision procedure for females, although “removing”– cut-ting off – is the most likely meaning. The rest of the Arabic isstraightforward: al-jilda (“the prepuce,”skin, or foreskin) whichis on the glans (hashfat) of the penis (al-dhakar). Keller’s Englishtext presents slightly less information in its description of themale anatomy; while the Arabic refers to the penile glans, histranslation simply refers to the penis. When it comes to femalecircumcision, Keller departs from the text more significantly byadding a key term. He renders “qata’a al-bazr” as “removing theprepuce of the clitoris,”treating bazr as a term specifically for theclitoral hood or prepuce. (Keller does not indicate what otherterm might mean clitoris, if bazr does not.) The vast majority ofscholars, however, take for granted that bazr means clitoris, notclitoral prepuce.34
The insistence of Keller, Badawi, and others on min-imizing the extent of cutting recommended or required by the Prophet’s words and/or the classical legal tradition can only
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succeed via well meaning but deceitful manipulation of thetexts. Would it not be a better alternative, if one accepts the hadith texts, to accept that previous approval even by theProphet, but certainly by the classical jurists, need not precluderejection today? To some extent these sources can prove helpful,as both hadith and legal texts seek to minimize the scope ofcutting performed, and not to impose a new practice or renderexisting custom more severe.35
Those activists who struggle against FGC in contextssuch as Egypt and the Sudan, where some members of the ‘ulamahave sided with the practice’s opponents, have used a variety ofstrategies to argue for its prohibition. Many acknowledge, as aprecondition for an open and honest dialogue, that some form offemale circumcision has been justified in religious terms, andattempt to discern how to present an honest, compelling argu-ment for significant modification of the realm of what is under-stood to be properly Islamic. Gradualism is one vital strategy;Toubia argues that, while “The ideal goal would be total eradica-tion”as an interim measure “recommending alternative customsis necessary.”She suggests perhaps “a ritual of just nicking the clit-oris or labia without excising any tissue”because “The transitionfrom infibulation to no procedure is so drastic that few will becomfortable with it.”36 However, the extent to which this will besatisfactory is unclear; research done by Rogaia Abusharaf in the Sudan suggests that while some women are strong advocatesof “sunnah” circumcision (here meaning clitoral excision, notmerely a “ritual nicking”) to replace the standard infibulation,others do not consider the milder cutting to be “real” circumci-sion.37 In any case, in these instances scholars and activists areconcerned with convincing the women who perpetuate the prac-tice, not with affecting Western perceptions.
Conclusion
One promising avenue for change is from within the legal trad-ition,but there are limits to the impact the ‘ulama can have on thepractice of FGC. Some scholars have begun the process of
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attempting to shift the frame of reference and treat female cir-cumcision as a medical procedure, as activists have suggested,38
rather than a religious ritual and marker of Muslim identity. Indoing so, they have suggested a different set of standards bywhich to judge associated practices. Shaykh al-Tantawi, statingthat the Qur’an contains nothing on the subject and that thehadith attributing any stance to the Prophet are weak,opines thattherefore one should defer to the views of doctors. On medicalgrounds,of course, the “surgery”fails basic qualifications for per-formance. Egyptian jurist Gad al-Haq, among others, however,objects to this approach on the grounds that medical knowledgeis continuously changing and evolving, and it is foolish to fore-sake what is eternal for what is ephemeral.39 While the ‘ulama canbe instrumental in struggles to eradicate FGC, there will likelyalways be dispute among its members. Further, relying on inter-nal struggles within the ‘ulama or even campaigns to legally banFGC (as an Egyptian law did before it was overturned) ignoresthe crucial point that formal religious authority may not be themost salient ground for both practitioners and those who makedecisions about following the practice, who are uniformlyfemale, even though religious sentiment is influential.
What tactics should be employed by activists, and whatrole should religion play as a justification? Activist A’Haleem’sappeal for a “final religious announcement” against FGC relieson a mistaken view of Islamic religious authority as somethingunidirectional and static. Pronouncements in this vein, such asthat by Swedish Sheikh Ahmed, suppress rather than promoteinterpretive leeway. A historically contextualized approach –which recognizes the likelihood that the practice existed but alsothat it is deeply troubling in many respects – can support aprocess of gradual change.Although based on a tendentious pre-sentation of the hadith text, the Minaret of Freedom’s broaderconclusion that the Prophet’s directive as quoted in Abu Dawud“clearly forbids severity in circumcision and bases such limita-tion on both the potential to harm the woman and the potentialto make her less desirable to her husband”seems more appropri-ate (though “forbids” might be replaced by “advises against”).The pamphlet argues, though, that “Permitting such a ritual
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constitutes an act of tolerance by Islamic law for pre-Islamicpractices, and may be overruled by the Islamic prohibitionagainst harmful acts.”40 Both of these points are potentially help-ful. One can think of female genital cutting as something subjectto gradual change and, as Kevin Reinhart has pointed out, it canbe liberating to think in terms of principles rather than specifics.Nonetheless, caution is warranted in claiming a power to “over-rule” accepted practices on the basis of broad principles.
Changes in public policy and national law without con-comitant changes in public opinion are futile, and potentiallyeven counterproductive. Reform in legal thought is slow, and isnot a guaranteed success.There will likely always be those, such asEgyptian scholar Gad al-Haq, who will vehemently supportfemale circumcision. Both legal and jurisprudential reform are, Ibelieve, necessary. But ultimately, the most crucial shift must takeplace in public opinion. And in order for such a shift to happen,religious language will need to be employed. However, I thinkthat on this issue in particular – and the lesson can be appliedmore broadly – the simplistic invocation of “Islam”is a recipe forfailure.The insistence that Islam forbids FGC is not so much falseas meaningless: it depends entirely on what one intends by theterm “Islam.” The texts, as is frequently noted, do not speak forthemselves, though I do think it is possible to read them in waysthat yield a determination that any form of female genital cuttingis reprehensible at best and that extreme forms such as infibula-tion must be forbidden. How does one marshal ethico-legal arguments that will be couched in terms of reprehensibility, ofminimization of a customary practice? Rather than ask whetheror not female circumcision is Islamic, it is more helpful to askwhat legal or ethical values should be assigned to the range ofpractices that fall under the rubric of FGC. And indeed, if onedetermines that such practices are reprehensible or forbidden –verdicts for which I think there is a great deal of justification in thetexts – then one must attempt to discern the best way to combattheir performance.At the same time, it can be difficult to resist thetemptation to make totalizing claims based on one’s own sense ofjustice, particularly when debates are not merely theoretical butresult in real injury to real women and girls.
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7O ye who believe! Approach not prayers with a mind befogged, until ye can understand all that ye say, – nor in a state of ceremonial impurity (Except when travelling on the road), until after washing your whole body. If ye are ill, or on a journey, or one of you cometh fromoffices of nature, or ye have been in contact with women, and ye find nowater, then take for yourselves clean sand or earth, and rub therewithyour faces and hands. For Allah doth blot out sins and forgive again and again. Qur’an, Surah 4, verse 431
Two brief sentences in a verse discussing observance of thedawn-to-dusk Ramadan fast succinctly capture much of what isessential about marriage and sex in the Qur’an: “Lawful for youon the nights of the fasts is the approach to your wives. They aregarments for you and you are garments for them.”2 First, andmost obviously, sex between spouses is not opposed to spiritualpractice – in this case, fasting – but exists as a complement and asupplement to it. Second, and a point much remarked on bycontemporary interpreters,3 there is an undeniable reciprocityin the marital relationship; a husband is a garment for his wifejust as a wife is a garment for her husband. Third, and muchmore seldom acknowledged, there is a basic asymmetry in God’sspeech here: God is speaking to men, about women. In thisverse, as in numerous others that treat the relationship betweenspouses or refer to women’s bodies in sexual contexts, men arethe “you” and women are the “they.”4 This androcentrism is notequivalent to misogyny, but neither is it unproblematic forinterpreters concerned with matters of gender and justice.5
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Since the Qur’an is the primary mode of divine guid-ance to humanity as well as the basis for so much Muslimthought, any attempt to formulate an ethics of sex and intimacymust engage with the revealed text. Recent interpretations of theQur’an have tackled many important topics related to womenand gender, but few have explicitly dealt with the verses dis-cussing sex. In this chapter, I argue that close attention to thoseQur’anic verses that discuss sex can provide a new lens throughwhich to engage in feminist exegesis. Qur’anic rules are gender-differentiated in intimate and familial matters above all, withmen seemingly given greater rights and responsibilities. Recentworks by a number of gender-conscious scholars have shown theextent to which standard exegetical treatments of these issueshave been shaped by interpreters’ presuppositions about maledominance and superiority. At the same time, feminist attemptsto approach the question of male marital and familial authorityhave not attempted to disaggregate the issues surrounding mar-riage, divorce, and sex. Despite the way quite a number of verseson all topics are directed to men about women, I suggest thatthere is often a difference in content and tone between thosefocusing on marriage and divorce on the one hand, and thosediscussing sexual intimacy on the other. The former usuallydirect men to allow women particular freedoms; the latter do notcontain similar directives, but rather only command men tobehave in particular ways. Even those verses that posit men ashaving greater agency and control in intimate relationships,though, situate all human actions as being directly subject todivine scrutiny, which implies a higher ethical standard alludedto by, but not explicitly presented in, the Qur’anic text.
To whom am I speaking?
As Amira Wadud has shown, God does not always speak to aspecifically male audience; indeed, such treatment is the exception rather than the rule. Yet because Arabic, like Frenchand Hebrew, relies on gendered nouns, readers of the Qur’anmust pay close attention to the content and context of each verse
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to determine whether particular passages are gender-specific orgender-neutral. Many Qur’anic verses address women and mentogether using the gender-neutral terms “human being” or“people” (insan, nas). These words are often poorly translatedinto English as “man,”“mankind,” or “men.”6 Part of the reasonthat these terms have often been rendered in this way is thatthese words take masculine pronouns in Arabic, but the genderof nouns is only sometimes indicative of the gender associatedwith the signified object. To insist that because insan takes amasculine pronoun it refers to a male person is untenable; logicwould also then dictate that nafs (self or soul), which takes afeminine pronoun, would necessarily refer to a female, makingthe first creation female rather than male (as Muslim interpret-ation generally, although not universally, holds) or of unspecifiedgender, as some premodern commentators and a number ofcontemporary scholars have argued.7
The structure of Arabic plural forms can make it espe-cially difficult to determine whether a gendered meaning isintended. Only exclusively female groups can be referred to withthe feminine plural, while both exclusively male groups andgroups including both males and females must be referred towith the masculine plural.8 A Muslim man is a muslim while aMuslim woman is a muslimah. A group of Muslim women ismuslimat ; a group of Muslim men is muslimun. A group thatincludes both men and women is also muslimun.9 Thus, when acollective noun such as muslimun appears in the Qur’an, it cannot be assumed that it only refers to men. In most cases,muslimun and similar collective plurals refer to all Muslims,maleand female.
In some instances, though, a particular collective nounclearly refers specifically to males, as it is accompanied by itsexclusively feminine counterpart. This tendency is most clearlyillustrated in Surah 33, verse 35:
Muslim men (muslimin) and Muslim women (muslimat),believing men and believing women, devoutly obedientmen and devoutly obedient women, truthful men andtruthful women, patient men and patient women, humble
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men and humble women, charitable men and charitablewomen, men who fast and women who fast, men who pro-tect their chastity and women who protect their chastity,and men who remember God frequently and women whoremember God frequently, God has prepared for them forgiveness and a great reward.
This verse describes men and women separately but inparallel fashion that makes absolutely clear their spiritual equal-ity.Though an equivalent meaning could have been conveyed bythe use of these terms in the masculine inclusive plural, the separate references to men and women emphasize both theinclusiveness of the revelation and the sameness of divinereward to members of both sexes. The latter point is explicit inother verses such as “And whoever does good deeds, whethermale or female, and is a believer, will enter Paradise and not be wronged in the least.”10 The word “believer” appears here inthe male singular due to grammatical convention,11 but themeaning is clear: God will reward males and females alikeaccording to their deeds. Interpreters intent on proving male/female equality in the Qur’anic message frequently quote theseand similar verses as proof of women’s equality with men.12
On other occasions, the separate treatment of men andwomen in the Qur’an indicates a lack of sameness. Regulatoryverses discussing matters such as witnessing and inheritanceexplicitly differentiate between males and females. In witnessingcertain types of commercial contracts, Surah 2, verse 282declares that one can employ two men, or one man and twowomen “So that if one of them errs, the other can remind her.”13
In dividing inheritance between children of a decedent, Surah 4,verse 11 states that a male gets twice the portion of a female, aratio that also holds for a number of other cases.14 Difference, inthese instances, involves obvious inequality,15 though whetherthis inequality constitutes injustice is a separate and more com-plicated issue.
The clear Qur’anic declarations of sameness and theequally clear Qur’anic acceptance of inequality based upon differentiation must be understood in the context of an
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ever-present tension in the Qur’an between egalitarianism andhierarchy, which exists not only with regard to the sexes but alsowhen it comes to matters such as wealth or slavery.16 Althoughthe Qur’an famously insists that all people are equals before Godand the only distinguishing criterion is piety, other versesacknowledge and seemingly authorize disparities in treatmentbased on freedom or gender.17 Not only are some abstract rulesmeant to apply differently, as in the cases of witnessing andinheritance, but hierarchies of power in the interrelationshipsbetween individuals are accepted as a matter of course.18 As Barbara Stowasser succinctly sums up, “the Qur’an does notassociate its principle of equal human dignity and worthinesswith notions such as absolute and individual social, political, oreconomic equality.”19
Male-female relations embody both norms of ultimatesameness and earthly differentiation. One common line ofargument suggests that while men and women are ontologicallyequal as human creations, they are not meant to be socially equalin the life of this world. Revelation is seen to justify social differ-entiation, either because of an assumed male superiority or, inthe twentieth century, a more palatable view of male and female complementarity.20 Asma Barlas acknowledges, butswiftly dismisses, the argument that one can “distinguish between religious and social/legal equality” in her “Believing Women” inIslam: Unreading Patriarchal Interpretations of the Qur’an.21 Inrejecting this division, Barlas must attempt to explain awaynumerous verses that suggest or command differential treat-ment for males and females. (She does so in part by making thesound point that difference is not always unequal.) Others haveargued, persuasively, that the Qur’an does present such a dis-tinction, but that the ontological equality of all human beingstakes precedence over the earthly, temporally bound regulationsthat privilege men over women, as in inheritance and witness-ing. Thus, specific regulations which are discriminatory towardwomen need not apply always, or in every context.
Feminist or gender-conscious interpretation of theQur’an, a discipline still in its infancy despite some paradigmaltering scholarship, has tended to focus much of its attention
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on the issue of power as wielded in intimate relationships.22
How, scholars have attempted to discern, can one reconcile theQur’an’s basic stance that Muslim women are first and foremostMuslims, the religious equals of men,23 with the notionexpressed in Surah 4, verse 34 that men are “qawwamun ‘ala”(“bread-earners,” “maintainers,” “protectors and maintainers,”“the managers of the affairs of,” “in charge of,” “have authorityover,” or “shall take full care of”) women?24 Even within a singleverse, such as Surah 2, verse 228, there can be a tension betweenthe notion that women have rights “similar to” or “just as” oreven perhaps “equal to”(mithl) those of men, but that “men havea degree over them.” Both verses are crucial for those concernedwith gender equality or equity, and the ways that they have beentreated illustrate both the significant insights of feminist schol-arship as well as the limitations of certain approaches to theQur’an.
A difficult verse
Traditional scholars and contemporary Muslims from a varietyof backgrounds and perspectives have interpreted Surah 4,verse 34. While classical and medieval interpretations of thisverse stress female obedience and male authority, recent inter-pretations tend to emphasize the financial component of men’smarital duties and the limits on a husband’s power over hiswife.25 Many Muslims have gravitated toward the latter views, inkeeping with modern discourses of complementarity ratherthan hierarchy, and fitting with the Qur’anic portrayal ofwomen in other verses as full human beings and partners in therelationship of marriage. The range of ways in which this verse’skey provisions have been interpreted illustrates both the pres-ence of androcentrism and misogyny in some aspects of theMuslim tradition as well as possibilities for more egalitarianreadings of scripture.
This verse presents numerous difficulties for transla-tion, since so many of the words have contested meanings. Myprovisional rendering here leaves three terms in the original
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Arabic since they cannot be translated without taking a positionon how they should be interpreted.
Men are qawwamun in relation to women, according towhat God has favored some over others and according towhat they spend from their wealth. Righteous women areqanitat, guarding the unseen according to what God hasguarded. Those [women] whose nushuz you fear, admon-ish them, and abandon them in bed, and strike them. Ifthey obey you, do not pursue a strategy against them.Indeed, God is Exalted, Great.26
Interpreters from a variety of perspectives haveaddressed the key issues raised by this verse: are men “in charge”of women? What are the characteristics of righteous women?What is nushuz and what are its consequences? Is the commandto “strike them,” that is, women, to be taken literally?
This verse begins with the declaration that “Men areqawwamun in relation to women.” The word qawwamun (sin-gular, qawwam) derives from the Arabic term for standing. Itsignifies one who “stands over” or “stands up for,” thus poten-tially encompassing both authority and responsibility. Thesedual elements were recognized by classical commentators onthis verse who attributed men’s role as qawwamun to bothdivine favor of men in general over women in general (“accord-ing to what God has favored some over others”) and to husbands’ financial responsibility for paying dower and main-tenance to their wives (“according to what they spend from theirwealth.”) Some commentators devoted more attention to male“perfection” and female “deficiency” than to men’s financialobligations, while others acknowledged male superiority as agiven but stressed a husband’s duty to support his wife.
Progressive interpretations contest the notion that menare inherently superior to women. Some argue that while theverse can indeed be taken to refer to favoring men over women,this favor is only in the limited realm of the greater inheritancesmen receive (possibly alluded to in the immediately precedingverses). These interpreters see this connection in the next clause
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of Surah 4, verse 34 which refers to men’s financial responsibil-ities (“and according to what they spend from their wealth”).Other interpreters stress that the Qur’an only states that “Godhas favored some over others” (or “one over the other”) not thatmen are favored over women; there is no grammatical reason fortaking men as the “some” and women as the “others.” Thus, theverse might refer to some men being privileged over other men,thereby differing in the amount of wealth they use to maintainthe women for whom they are qawwamun.27 Regardless of thespecifics, the most important element in rereadings of this verseis the focus on male support of women. If men are qawwamun inpart “because of what” (one possible translation of bi ma alongwith “according to what”)28 they spend on women, then theirrole is dependent on their exercise of financial responsibility. Ifmen no longer support women, then they lose any resultantauthority. Thus, in a family where both husband and wife con-tribute to the household expenses, the husband would not be thewife’s qawwam.
After giving one very broad statement about men andwomen, the verse turns to a specific category of women, the“righteous women” (al-salihat), defining them in two ways: ashafizat li’l-ghayb, women who guard or protect what is absent orunseen, and as qanitat, a term that can mean obedient, sub-servient, or deferential. Commentators disagree on how tointerpret the phrase “hafizat li’l-ghayb,” particularly in conjunc-tion with bi ma hafiza Allah, according to, or with, or because ofwhat God has guarded or protected. Based on a widely quotedhadith, most commentators suggest that these women are thosewho, in the absence of their husbands, protect their own chastityand their husbands’ possessions. Progressive and feminist inter-preters, however, have tended to interpret “those who guardwhat is unseen” as those who fulfill their religious obligationsand protect their faith, as God has guarded it.
Classical and reformist interpretations of qanitat alsodiverge sharply. Qanitat is the feminine plural of qanit, meaningone who is obedient, subservient, or deferential, one whodemonstrates qunut, from the same Arabic root (q-n-t).Medieval commentators often reduce qunut in this context to a
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woman’s obedience to her husband.However, the term qanit(at)is used elsewhere in the Qur’an only for obedience to God andGod’s Messenger.‘Abdullah Yusuf Ali renders it as “devoutly obedi-ent,” in his translation of this verse, just as he does where theQur’an applies the term to men and women alike in Surah 33,verse 35, which includes “devoutly obedient men (qanitin) anddevoutly obedient women (qanitat)” among the list of thosewho will be rewarded by God. The Qur’an also refers to excep-tional figures such as Mary and Abraham with the term qanit.29
There is thus no reason for considering the use of the term inSurah 4, verse 34 to refer to anything other than women’s obedi-ence and devotion to God. In fact, interpreting qanitat in termsof obedience to the husband is particularly problematic, giventhe way that the Qur’an treats obedience to human beings andhuman authorities (with the exception of the Prophet) as gener-ally significantly less worthy than obedience to God.30
There is, however, some type of disjunction betweendeference to God and the misbehavior discussed in the latterportion of the verse. The root of the word nushuz (n-sh-z) refersto rising. Most medieval Qur’an commentators understandwomen’s nushuz as disobedience or rebelliousness (isyan)toward their husbands. Two behaviors repeatedly mentioned asforms of nushuz are leaving the marital home without permis-sion and refusing the husband’s sexual overtures. More rarely,disrespectfulness, “lewdness,” or failure to perform religiousobligations are mentioned as forms of female nushuz.31 Awoman who commits nushuz is referred to as nashiz or nashiza.Men can also commit nushuz, but the term is understood differ-ently in that case.
Contemporary interpreters differ somewhat in theirinterpretation of nushuz, whether on the wife’s part or the husband’s. Generally, they view nushuz as a type of maritaldisharmony, arising on the part of either husband or wife, orlewd conduct, falling short of adultery, on the part of eitherspouse.32 When a woman commits nushuz, past generations ofauthorities have generally agreed on measures that the husbandmay use. In addition to those sanctioned by the Qur’an, dis-cussed below, jurists generally agree that a man may suspend his
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wife’s support (nafaqa) if she refuses him and/or leaves home,since she has made herself unavailable to him.
Moroccan feminist Fatima Mernissi argues that nushuzis conceptually central to the Islamic gender system. “Nushuz isa Qur’anic concept; it means the rebellion of the wife against herMuslim husband’s authority,” she writes. “The Qur’an onlyrefers to nushuz in order to describe the punishment a husbandmust inflict upon the wife in case she rebels.”33 Mernissi elab-orates elsewhere: “[N]ushuz refers specifically to the wife’s rebellious tendencies toward her husband in an area wherefemale obedience is vital: sexuality. The Qur’an calls nushuz thewife’s decision not to comply with her husband’s desire to haveintercourse.”34 Mernissi is mistaken in her assertion that theQur’an explicitly defines nushuz in this way and in her claim thatthe term only appears in the Qur’an with reference to a wife’sbehavior, but she is substantially correct in her characterizationof how the classical and medieval scholars understood the wife’snushuz.35
The Qur’an also discusses a husband’s nushuz in Surah 4.As in verse 34, the Qur’anic passage on men’s nushuz (verse 128)appears near other verses discussing marital discord: “If awoman fears nushuz or rejection (i‘rad) from her husband, thereis no blame on them if they come to a settlement, and settlementis better, even though people’s souls are stingy.”Interpreters gen-erally agree on the definition of, and remedies for, men’s nushuz.Most hold that the husband’s nushuz is his dislike of, or aversiontoward, his wife. Some accounts hold that this verse was revealedin the case of a husband who came to dislike his wife because ofher advancing age or some other factor. Some state that this manwas Rafi‘ b. Khadij, who had married a young bride and favoredher over his wife of many years. Other accounts suggest that itwas revealed about the Prophet and his wife Sawda. In eithercase, the exegetes and jurists agree that the “settlement” theQur’an refers to consists in the wife giving up certain maritalrights, as both as both Rafi‘ ’s wife and Sawda eventually did, asa means of inducing her husband not to divorce her.
While most defined the husband’s nushuz as dislike ofa wife, a minority held that the husband’s nushuz was his
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maltreatment of his wife. Specifically, frequent or excessive vio-lence, including striking her in the face, constituted nushuz, inthis view. (This interpretation has increased in popularity inmodern times.) This condemnation of a husband physicallyharming his wife stands in contrast to the generally acceptedview that he may strike her under certain circumstances. Thethree measures given in Surah 4, verse 34 to be taken in caseswhere men fear female nushuz are “admonish them, and aban-don them in bed, and strike them.” The verb daraba, “to strike,”is commonly translated in this context as “hit,” “beat,” or“scourge,” though two recent translations have rendered theword as “spank.”36 The verb appears numerous times in theQur’an with other meanings, leading some to question why itmust be understood as striking in this context. One translatorhas proposed that daraba in this context does not mean strike,but rather “separate” or even “have sex with” (a metaphoricalmeaning attributed to the same Arabic root).37 Commentatorshave broadly agreed, though, that the term is meant literally, notmetaphorically, and that the verse gives permission for a hus-band to strike his wife for nushuz, although only if admonitionand abandonment in bed have had no effect.
There are several layers to the problem of interpret-ations raised by these two verses discussing nushuz. It is clear thatmedieval interpreters were guided by certain unflattering pre-sumptions about female nature in their discussions of righteouswomen and marital obedience. Further, the treatment of maleand female nushuz as unrelated phenomena, part of the atom-istic verse-by-verse approach that Fazlur Rahman criticizes,misses a vital connection between the two, something moderncommentators such as Sayyid Qutb have remedied to a certainextent.38 Yet simply noting that the Qur’an treats both male andfemale nushuz as problems does not automatically absolve theQur’an of preferring the male over the female in this respect.That is to say, the consequences for female nushuz – even ifnushuz is understood as antipathy or high-handedness, whichcan rightly be attributed to either spouse – do not merely differin the interpretations of the exegetes, but are clearly differenti-ated in the text of the Qur’an itself.
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How, then, can one approach the Qur’an in a gender-conscious manner, neither accepting patriarchal premises norfalling into what Farid Esack refers to as “simplistic apologia”?The challenges facing feminist exegetes can be clearly seen in acomparison of two essays on Islam from the volume What MenOwe to Women: Voices from the World’s Religions.39 One, byEsack, challenges much conventional reformist wisdom aboutthe Qur’an’s treatment of women and gender relations. Theother, by Asghar Ali Engineer, exemplifies the most commonmodernist way of dealing with the issues involved, including a significant proportion of apologetic. Their essays centerlargely on Surah 2, verse 228 (the “degree” verse) and Surah 4,verse 34 (“Men are qawwamun”), notoriously difficult verses forexegetes concerned with gender justice and equality. Thoughwomen constitute the majority of contemporary scholars con-cerned with these problems, the similarities and differences inthis pair of essays by male scholars exemplify both the promiseand peril of particular approaches to the matters at hand.
Indicative of his unwillingness to grapple with particu-larly thorny problems, Engineer omits all reference to men’s“degree over” women when he quotes from Surah 2, verse 228.He presents only the first portion of the verse, which he trans-lates “The rights of the wives (with regard to their husbands) areequal to the (husbands’) rights with regard to them …”40 A moreliteral translation of this phrase would have, “To them (fem.plural) like due from them (fem. plural) [according to what isproper].”41 Admittedly, this rendering is too vague to be satisfac-tory for those reading in English only; Engineer justifiably addsin the notion of rights and duties (haqq) which, while not pre-sent in the Arabic text, is clearly implied. Nonetheless, his use ofthe term “equal” without any qualifiers or alternatives is misleading. Still more disingenously, Engineer substitutes anellipsis for the second portion of the verse which declares: “andmen have a degree over them (fem. pl.).”42 His omission of thisclause is particularly problematic given that he uses this verse, intandem with Surah 33, verse 35 (“For Muslim men and Muslimwomen …”), as evidence for both justice and equality. Accordingto Engineer, “Both of these verses leave no doubt that gender
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justice is highly crucial to Qur’anic teachings. These verses alsomake it abundantly clear that gender justice cannot be realizedwithout gender equality.”43
Engineer’s dual assertion that gender equality is a necessary component of gender justice, and that both equalityand justice are found in Surah 2, verse 228, is only renderedplausible by his manipulation of the Qur’anic text. By omittingthe “degree”portion of the verse, Engineer avoids the stereotypeof Muslim women as irremediably oppressed and withoutrights. However, to anyone familiar with the verse or who pur-sues the matter further, Engineer’s tactic appears as a blatantattempt to hide what the Qur’an says, as if that is the only wayMuslim women’s rights could be affirmed. Engineer is not theonly author to bypass the troublesome notion of a “degree;”non-Muslim Islamicist John Esposito, for example, gives a similarly partial quotation of the verse in Women in MuslimFamily Law.44 Of course, some authors – both non-Muslimpolemicists and Muslims seeking to affirm male familial author-ity – take the opposite tack, only quoting the portion of the versewhere the degree is mentioned, leaving off the description of thewoman as a moral personality with both rights and obliga-tions.45
More nuanced explorations of the “degree verse” byother commentators acknowledge the existence of the degree butlimit its scope to the immediate Qur’anic context of divorce.46 Ingranting men the additional authority to pronounce or take backdivorces, “the Qur’an recognizes men as the locus of power andauthority in actually existing patriarchies,”47 but does not other-wise stipulate a husband’s superiority in marriage. (Divorce is, infact, a realm in which Qur’anic verses clearly accept or confergreater power for husbands in relation to their wives. Femaleresponsibility to act also appears in this verse, which expresses acommand regarding their action – “Divorced women shall waitconcerning themselves for three [menstrual]48 cycles” – but doesso in a way that makes clear women’s legal passivity, referring to them as women who have been divorced.) The Qur’an’s declar-ation in this verse that “their husbands have more right to takethem back in that period if they (masc./inclusive plural) wish for
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reconciliation”49 has been plausibly construed to refer to the“degree” mentioned in the verse.
The specifics of the Qur’an’s regulations cannot beunderstood in isolation from their historical context, but howprecisely that context is to serve later readers is open to debate.Engineer places himself in an ultimately untenable position: heinsists, on the one hand, that the Qur’an affirms the equality ofmen and women, yet acknowledges, on the other, that there are “situational constraints”50 governing the Qur’an, meaningthat particular verses may not always demonstrate this equality.According to Engineer, “Scriptures both reflect the given situation and also transcend it.”51 There are both “normative”and “contextual” verses in the Qur’an.52 Ijtihad – defined byEngineer as “exerting oneself to solve newly arising problems ifno precise guidance was available in the Qur’an and in theProphet’s Sunnah”53 – is to play a major role in transformingmodern understandings of verses that seem unfair to womentoday. Ironically, Engineer blames earlier scholars for deviat-ing from the “normative” message of the Qur’an by putting their individual interpretation on its verses, while asserting that contemporary scholars should exercise the same type ofijtihad.
Esack, in an article that focuses on Surah 4, verse 34,agrees with Engineer and other scholars that interpretation of the Qur’anic text has always played a significant role in determining how its verses have been understood and imple-mented. He notes key verses where the Qur’an advocates genderjustice, including a more accurately translated but similarlytruncated version of the degree verse.54 Where he moves againstthe grain of Muslim feminist and reformist discourse on theQur’an is in his assertion that it is impossible to place all blamefor the difference and inequality in interpretations of the Qur’anon its interpreters. Considering himself “a Muslim with a pas-sionate commitment to both the Qur’an and to gender justice,”he recognizes that these can be “seemingly conflictual voices.”55
Esack makes the crucial point that interpreters of the Qur’anmust grapple with its androcentrism in addressing certain revelations to men; indeed “The Qur’an’s essential audience is
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males. … [Women] are essentially subjects being dealt with –however kindly – rather than being directly addressed.”56
Esack discusses Surah 4, verse 34 as a prime example ofa verse presupposing male listeners; it also assumes male phys-ical control of women. The provisions outlining measures to betaken in case of women’s nushuz – or, more exactly, in case ofmen’s fear of female nushuz – are addressed to a male audience,in sharp contrast to the way that women’s different options inthe face of a husband’s nushuz are discussed in Surah 4,verse 128, where both men and women are discussed in the thirdperson. Esack demonstrates that while classical commentariesoversimplify the matter of women’s devotion to God and obedi-ence to husbands, modern apologetics and feminist analyses frequently overlook the very clear authority delegated to menover women’s bodies.
Garments for one another
In Surah 2, verse 228, positing that men have a degree overwomen (or that husbands have a degree over their wives), menand women are spoken of in reciprocal but unequal terms – butthey are both spoken of. In both Surah 4, verse 34, the “striking”verse, and Surah 2, verse 187, the “garment” verse, women arespoken of, but men are spoken to.57 This commonality betweenthese two verses is all the more noteworthy given that the clauseso frequently quoted from the latter refers to a reciprocal andmutual relationship between spouses, while the former pre-sumes (or commands) hierarchical and gender differentiatedspousal interactions. I will consider the garment verse in itsentirety below, but here I want to suggest that the Qur’anicmode of address is not in itself sufficient to classify the contentsof particular verses. The Qur’anic text repeatedly refers towomen as a “them” who must be dealt with by men, who are itsimplicit or explicit addressees, with regard to matters associatedwith sex, women’s bodies, and conduct in intimate relation-ships. Yet not all of these verses addressed to men about womenendorse customs and rules supporting male dominance.
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Verses addressed (in the second person) to men dis-cussing women (in the third person) may or may not assume oradvocate women’s legal or social passivity, though the very modeof address presumes a privileged position for men as the audi-ence for divine guidance. The extensive discussions of divorceand widowhood surrounding the “degree” verse in Surah 2 takethe male as the hearer (“you”) and the female as the subject orobject of the revelation (“they”), but do so in order to promotewomen’s liberty. Examples include Surah 2, verse 232 (“Whenyou have divorced women and they [fem. plural] have reachedtheir term”), verse 234 (“When any of you die leaving wives, they[fem. plural] are to wait on their own account”), and verse 240(“And those of you who die leaving wives”). Though these verses are addressed to a male audience, it is not the males whoare being tasked with obligations and granted agency. Thewomen of whom God speaks are passive in the sense of beingdivorced or widowed (though one may presume a man leaving awidow did not do so intentionally), yet the crucial informationconveyed in these verses is female freedom to act independentlyin the aftermath of a marriage’s termination. Even though men,not women, are the recipients of the commands, these regula-tions promote women’s right or duty to act – especially since, inthe case of widowhood, husbands are only the addressees in atheoretical sense.
Similar injunctions in other verses, such as those stress-ing that the choice to remain married or to separate should bemutual, promote the relaxation of male marital and familialcontrols on women. The use of the dual form in relevant con-texts makes clear that both spouses are intended, as in Surah 4,verse 130 (“if they [dual] separate”). A series of statements inSurah 2, verses 229–30 addresses both male and female feel-ings.58 Even Surah 2, verse 230, which depicts the male action ofdivorce as unilateral, does not dismiss female agency entirely,presenting the woman as the active party in another marriage.(This stands in contrast to Surah 2, verse 221 where men marryand women, in the passive voice, are married.) Further, any pos-sible reunion between two spouses after divorce appears as amutual action, based on a mutual ability to observe God’s limits.
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Amina Wadud and Asma Barlas have argued that theplaces where the Qur’an addresses men qua men respond to thepractical exigencies of an extant patriarchy – specifically, that ofseventh-century Arabia.59 This explanation accounts satisfactor-ily for discussions such as those about divorce or widowhood,and consent to marriage; commands that men fulfill obligationstoward women but allow them independent action suggest atrajectory away from male familial domination and control, ifnot a complete rejection of patriarchy. With regard to sexualintimacy, though, this interpretation is less convincing. In anumber of verses concerned with sex, women are spoken about and men are spoken to in a way that presumes male control and is unconnected with ameliorative measuresintended to restrict men’s scope of action or enlarge thatassigned to women.
A number of considerations arise when the “garment”verse is considered in its entirety:
Lawful for you on the nights of the fasts is the approach toyour wives. They (fem. pl.) are garments for you and youare garments for them. God knows that you used to cheatyourselves, and [God] turned to you and forgave you. Sonow be intimate with them (bashiruhunna, fem. pl.) andpursue what God has written for you. And eat and drinkuntil the white thread becomes distinct from the blackthread, from the dawn, then fast completely until night.And do not be intimate with them (fem. pl.) when you are in retreat in the mosque. Those are the limits ordainedby God, so do not approach them. Thus does God makesigns clear to humanity, that they may be conscientious.60
This verse speaks to men about pursuing or abstainingfrom intimacy with women. Despite the address to men, theredoes not seem to be anything inherently gender specific in thecommands. The regulations with regard to fasting are univer-sally taken to apply equally to male and female Muslims.61
Perhaps, then, not only the regulations surrounding eating and drinking but also those pertaining to sex should be read as
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non-gender differentiated; clearly, the description of spouses as“garments” for one another is equally applicable to both sexes.62
Moreover, there is no indication that the human consciousnessof divine guidance that is counseled at the end of the verseshould be limited to men. Nonetheless, the verse clearly pre-sumes male initiation of sexual activity (“Lawful for you … is the approach”) and male restraint from initiating sex whenimpermissible (“do not be intimate with them then”).
Another passage presumes a level of male control overthe intimate relationship between a couple that even moreclearly assigns a dominant role to men in the sexual decision-making process, with regard to both initiation of sex and sexualpositions. Surah 2, verses 222–23 declares:
They ask you about menstruation. Say, It is a hurt (adhan),so keep away from women during menstruation and do notapproach them until they become pure. When they havepurified themselves come to them in the way (min haythu)God has ordered you.God loves those who repent,and lovesthose (masc./inclusive pl.) who purify themselves. Yourwives are a tilth (harth) for you; so come to your tilth as youwish, but do something for your souls beforehand. And beconscious of God, and know that you are going to meetGod. And give good tidings to the believers.63
In addition to the obvious (these commands areaddressed to men, about women) and the tangential (menstru-ation renders women impure for intercourse), these verses maketwo essential points. First, they presuppose male agency andfemale passivity with regard to the initiation of sex. Second, theyplace all sexual relations, like other human activity, firmlywithin the scope of divine regulation.
Exegetes understand Surah 2, verse 222 to be divineguidance conveyed to the Prophet in response to questionsposed to him by Muslims (“They ask you about …”). It is per-fectly intelligible that commands or advice about womenshould be directed toward men, if they were the ones doing thequestioning. The content of the first verse, about sex during
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menstruation, clearly indicates that men bear responsibility foreither keeping away from or approaching their wives for sex. Itdoes not, for example, command men to wait for their wives toapproach them after they have purified themselves from men-struation. Though women have the duty to purify themselves, itremains a male duty (or prerogative) to initiate sex once purifi-cation is complete.
The second of these verses famously declares“nisa’ukum harthun lakum” – “your wives are a tilth for you.”The choice of metaphor seems to suggest passivity; a field, afterall, is an object to be tilled, not an active partner in the decisionwhether or not to plow, or plant, or harvest (or to be plowed,etc.).64 Barlas has argued, suggestively, that one cannot read thisverse to justify the treatment of “women as men’s sexual prop-erty”, because “property in land” was not known in that placeand time; besides, other Qur’anic verses give a different seman-tic scope for the term harth.65 Others accept the land analogy,but stress that the likening of a woman’s body, or genitals, to atilth implies an obligation of careful cultivation, not proprietarylicense to act without thought for the woman’s well-being.66
Others have suggested that the passage refers to procreation andthe (im)permissibility of contraception.68 However this passageis interpreted, though, the fact remains that the Qur’an hereobjectifies women in the most literal sense, discussing them asmatter to be acted-upon not agents in their own right.
The usual account of the revelation of Surah 2,verse 223, strengthens the view that the Qur’anic text supposesmale control of women’s bodies; it is said to have been revealedin response to a dispute between husband and wife over theacceptability of a particular position for intercourse. The wifereportedly objected to the husband’s desire to enter her frombehind; this verse granted him permission to have sex with herin the position of his choosing.68 If such is its circumstance ofrevelation, the verse seems to preclude a woman having any rightto deny her husband sexual access (except during menstrualimpurity) in the manner of his choosing. Of course, the occa-sion of revelation usually proposed for this verse may instead bea post-facto rationalization; the Qur’anic text might merely
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grant freedom to married couples to determine their own sexual positions.69 Even this analysis, however, leaves intact the pre-sumption that husbands instigate and control sexual activity.
That said, the most important content of all of theseverses is not the content related to intercourse itself but theplacement of sex firmly under divine oversight – in the sensethat God will call each human being, and here particularly men,to account for their deeds, even with regard to sex. As with thediscussion of divorced or widowed women, these passages areanything but a license for unbridled male actions; men’s accessto women’s bodies is controlled by divine regulation. Unlike inthose cases, however, Qur’anic discussions of sexual intimacycontain no appeal for female freedom to act.70
Conclusion
Though the Qur’an stresses individual accountability onnumerous occasions without reference to gender, men seem tohave greater scope for action and moral agency, particularlywith regard to marriage and sex. That is not to say that women’sfeelings and desires are not taken into consideration at all; dis-cussions of verses on marriage and divorce in this chapter haveshown that a woman’s role in selection of a marriage partner andin regard to continuing her marriage may be necessary, if notdecisive. Overall, however, the Qur’an directs men to exerciseresponsibility for numerous decisions in familial and intimatematters. Dominant interpretations that acknowledge this gender differentiation suggest that this arrangement reflects thenatural order of things; men have both greater responsibilitiesand greater privileges in the divinely approved hierarchicalforms of social and familial organization outlined in the Qur’an.Others, though, insist that such verses merely reflect the socialnorm of patriarchy, by addressing those with greater power in it.Although I am reasonably persuaded of this latter view withregard to marriage, divorce, and polygamy, I find it less convinc-ing with regard to intimate sexual relations between husbandand wife. The Qur’anic privileging of male sexual agency
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suggests that in some crucial sense the Qur’an is a thoroughlyandrocentric – though not, I would argue, misogynist – text.
Modern scholarship on the Qur’an has rightly pointedout serious oversimplifications and distortions in the commen-tarial tradition, where commentators’ own assumptions aboutfemale inferiority and male supremacy have led to seriouslyflawed exegeses of particular verses. Yet, scholars intent onreform have at times committed the same error of allowing theirown presuppositions to color their interpretations of theQur’an to the extent that they fail to consider other possiblylegitimate readings. It is not enough to simply posit that “theQur’an is egalitarian and antipatriarchal,”71 and to blame interpretations that deviate from that perspective entirely on“misreadings.” Barlas, in an exercise of considerable intellectualhonesty, acknowledges the role of the interpreter’s beliefs in“Believing Women” in Islam. She writes that:
I set out to absolve the Qur’an “itself ”of culpability for whatMuslims have, or have not, read into it. This does not meanthat I did not consider seriously the alternative argumentthat the problem is not one of reading but of the very natureof some of the Qur’an’s teachings. … I wondered whetherthe Qur’an itself is responsible for its misreadings.72
Even in this attempt to query her work’s presumptions,Barlas does not acknowledge the possibility that a reading of theQur’an that arrives at different conclusions could be a legitimatereading or a faithful explication of “the Qur’an’s teachings.”Theway she frames the issue in fact presupposes what she sets out toprove: that any patriarchy or inequality seen in the Qur’anic textis the result of a “misreading.”
Barlas’s work operates under the assumption that theexistence of mutuality and reciprocity in intimate relationshipsare incompatible with hierarchy; since the former clearly exist inthe Qur’an, the latter cannot. However, as David Halperin hasargued with regard to ancient Greece, inequality does not preclude real and enduring affection and may, in certain cir-cumstances, even be a condition for it; in some contexts,
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“personal affection and social subordination … are two sides ofthe same coin.”73 It is one thing to accept this as a description ofan ancient society, however, and another to view it as part of thedivine plan for humanity. If the Qur’an – and, by extension, God– treats the male as the primary recipient of guidance on mattersof sex, if divine revelation endorses man-on-top (figuratively, ofcourse, as the occasion-of-revelation literature seems to suggestthat position-wise, it is not the placement of the man’s body buthis decision about the position that matters), one must askwhether the egalitarian vision of gender justice that I and otherswould like to see diverges from God’s understanding of essentialhuman nature.74
Honesty requires me to concede the strength of somescriptural interpretations positing a privileged role for males infamily and society. Still, just because these are possible – even themost straightforward – readings does not mean there cannot beequally compelling feminist interpretations of the text whenhistorical context is considered and when critical principles ofjustice, kindness, and love are taken seriously. However, in orderto create a body of persuasive and thorough feminist interpret-ation these principles will need to be defined and exploredbecause justice, just to take one example, can mean a variety ofthings. One must debunk and counter aggressively patriarchaland indeed misogynist interpretations, but also justify the pro-ject of egalitarian interpretation. In the process, one mustacknowledge that esteeming equality as the most importantinterpersonal value is a peculiarity of some modern Muslimsand not something inherent in the text of the Qur’an. Feministexegetes must take care not to be as blinded by the commitmentto equality, and the presumption that equality is necessary forjustice, as classical exegetes were by their assumptions about thenaturalness of male superiority and dominance in family andsociety.
In any case, the Qur’an is not primarily a rule book butrather a revelation that captivates and engages hearts and minds.It serves not only as a source of divine guidance but also as anindicator of the divine intelligence at work in the universe; itreminds human beings of God’s existence, generosity, wrath,
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mercy, and justice. The fact that the Qur’an has a larger purpose– and a more complicated relationship to human social andfamilial life than simply to provide regulations – does not excusesloppy or apologetic readings of difficult passages. However, wedo well to remember that there are limitations not only to thework of human interpretive intelligence,but to the Qur’anic textitself, at least as manifested in the earthly realm. It is, and canonly ever be, a pale shadow of the ultimate Reality.
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8Aishah narrated that the Prophet married her when she was a girl of sixand he consummated the marriage when she was a girl of nine.– Sahih Bukhari 1
In 2002, Southern Baptist preacher Jerry Vines caused an uproarin the United States when he referred to the Prophet Muhammadas “a demon-possessed pedophile.”2 The accusation of demonpossession hearkened back to the “satanic verses” controversysparked by Salman Rushdie’s 1988 novel, but Vines’ remarks didnot reignite that firestorm. Instead, it was his accusation ofpedophilia – based on Muhammad’s marriage to the youngAishah – that proved potent. Even in the post-9/11 climate ofAmerican hostility toward Islam, American Muslims found thisattack on the Prophet particularly offensive. Outraged, manyinstinctively refused to accept the evidence provided by Vines andhis associates for Aishah’s age at marriage, though they were onsolid ground as to their sources.3 According to Sahih Bukhari,viewed by Sunni Muslims as the most authentic compilation ofhadith reports about the Prophet and his companions, Aishahwas a girl of six when her father, Abu Bakr, married her off to hisclose friend Muhammad. Accounts in Sahih Muslim, the secondmost respected compilation, suggest an age at marriage of eithersix or seven.4 The accounts agree, however, that she was “a girl ofnine”when Muhammad consummated the marriage.
American Muslim leaders and organizations foundthemselves at a loss as to how to deal with the issue aside fromfrequent repetitions of the obvious counterclaim that Vines’
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remarks were inflammatory. Most response focused on the sinister motivations behind, and the divisive effects of, Vines’comments, using terms such as “venomous,” “bigoted,” and“hate-filled.” Sidestepping the substance of the allegations,Shakur Bolden, an Islamic Center president from Florida,declared: “It’s outrageous that he made those comments. Heshould not have made those comments. Those comments donot bring people together and that’s what we ought to be about– bridging communities.”5 A few spokespeople for Muslim organizations cautiously suggested that Vines’ statements wereinaccurate. But in one of the few attempts to refute directly theallegation about Aishah’s age, Ibrahim Hooper, spokesman forthe prominent Council on American-Islamic Relations,resorted to clumsily (and erroneously) suggesting that “six” and“nine” have been interpreted by many Muslim scholars to mean“sixteen” and “nineteen.”6
There is nothing new, of course, about the Prophet’smarriages being the target of non-Muslim criticism. Accus-ations of lust and sensuality were regular features of medievalattacks on the Prophet’s character and,by extension, the authen-ticity of Islam as a religion.7 This “rather abrasive criticism”8
focused, more often than not, on the large number of Muham-mad’s wives or his marriage to Zaynab, the former wife of hisadopted son Zayd. Aishah’s age was rarely the subject of contro-versy in premodern discussions. In recent years, however, it hasfigured prominently in criticisms leveled against Islam not onlyby Christian polemicists but also a number of feminist, humanrights, and secularist organizations. Though the controversyover Aishah’s age at marriage died down fairly quickly in thenational media, years later it still rages online, where it hasappeared as a staple in evangelical polemics against Islam wellbefore Rev. Vines’ remarks.9 Partially due to this added scrutiny,Muhammad’s marriage to Aishah has become a topic of discus-sion and debate among Muslims as well.
This chapter considers contemporary Muslim treat-ments of Aishah’s age at marriage and what they reveal aboutcertain types of Muslim anxieties, focusing on online sources.Muslim discussions of the Prophet’s personal conduct in
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general, and his marriage to Aishah in particular, provide a lensthrough which to view changed attitudes toward sex and marriage, and unresolved concerns about the appropriatenessof applying medieval standards in modern life.10 There are dangers in both historical anachronism and unchecked moral relativism, and in analyzing Muslim reflections onMuhammad’s marriage to Aishah, several questions emergeabout both the accuracy and relevance of historical informa-tion. The most obvious, of course, are: how old was Aishah whenher marriage to the Prophet took place? and how old was shewhen it was consummated? I make no attempt in this chapter to assess the historical record, nor do I take a position asto Aishah’s actual age at the time of consummation of her marriage. I do not think the Bukhari account of Aishah’s marital history is implausible, given later legal discussions ofmenarche and majority, nor do I view it as infallible simplybecause Bukhari includes it. The cavalier treatment of thishadith by those who find its content objectionable, however, hasimplications that many Muslims not directly engaged in ongoing polemical struggles have not recognized. Rejecting theview that Aishah was six and nine, respectively, at marriage andconsummation implies a willingness to question the reliabilityof Bukhari’s compilation which,under other circumstances, cansubject one to attack.
How to treat hadith texts is perhaps the most crucialmethodological issue for contemporary Muslim reformistthinkers. Just as with the Prophet’s ownership of Mariyya, or hisactions in permitting Muslim soldiers sexual access to femalescaptured in battle, if one accepts the hadith account of his mar-riage to Aishah, one confronts the actions of the Prophet indoing something that is unseemly, if not unthinkable, for Mus-lims in the West. Suggesting that he was wrong to do so raisesprofound theological quandaries. Yet accepting the rightness ofhis act raises the question: on what basis can one reject the mar-riage of young girls today? At stake are broader issues regardingthe relevance of prophetic example to Islamic sexual ethics andthe relevance of historical circumstance to the application ofprecedent.
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Apologetics and Polemics
Contemporary Muslim discussions of the Prophet’s marriagesin general, and his marriage to Aishah in particular, are attentiveto the broader climate of non-Muslim scrutiny and criticism ofIslam. As in controversies over female circumcision, Muslimdiscourses on the Prophet’s personal life have the dual objectiveof defending Islam by responding to allegations of improprietywhile also engaging in intra-Muslim reflection and debate.There is a voluminous Muslim-oriented literature, in pamphletsand books, treating the Prophet’s wives, and making reference tothe Prophet’s exemplary behavior as a husband.11 Not surpris-ingly, there are also numerous discussions of these topics on avariety of Internet sites, expressing diverse perspectives, andaddressed to different audiences. Muhammad’s marriage toAishah is a prominent theme in treatments of the Prophet’smarried life. Some articles explicitly respond to criticism ofthe marriage; these range from refutation to apologetic tocounter-polemic, and seem to be mostly directed toward non-Muslims. Other pieces – articles, fatwas, question/answer format discussions, and postings in chat rooms and on discus-sion boards – are geared toward intra-Muslim dialogue. Even inMuslim-focused forums, though, the various approachesadopted by Muslim authors reflect their sense that they areengaged in an ongoing ideological struggle with “Christianity”and “the West.” This oppositional stance emerges clearly indirectly polemical articles but is present at least as an undercur-rent in almost all discussions.
The variety of Muslim responses to the issue of Aishah’sage at marriage reflects differing audiences and attitudes to thehadith sources as well as varying levels of identification with theworld-wide umma, or Muslim community. A few groups out-side the mainstream, such as the Ahmadiyya or the Submitters,flatly deny that Aishah was nine when she began marital life withthe Prophet. They do so by rejecting the authority of the hadiththat present this “fact.”One online Ahmadi source questions thecredibility of the reports about Aishah’s age at marriage whileattempting to defend the authenticity of the hadith literature as
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a whole; the article suggests that “the compilers of the books ofHadith did not apply the same stringent tests when acceptingreports relating to historical matters as they did before acceptingreports relating to the practical teachings and laws of Islam.”12 Inmaking this distinction between history and law, the authorattempts to deny the information in the report at hand withoutimpugning the reliability of one core source of Muslim ritualand law. Reflecting its increased distance from Muslim ortho-doxy, the Submission site, linked to the organization founded bycontroversial figure Rashad Khalifa, goes much further, equat-ing hadith to Internet rumor: “All the stories circulating on theInternet and in the hadiths [sic] books about Aishah’s marriageat age of 6 or 9, are no more than lies found in the corruptedbooks of Hadiths and completely contradict the teachings of theprophet Muhammed that came from his mouth, the GloriousQuran.”13 Despite their different attitudes to the hadith sources,both of these groups on the margins of Muslim orthodoxy agreewith non-Muslim polemicists that if the Prophet had indeedengaged in sex with a nine-year-old girl, regardless of whether ornot she was his wife, such behavior would be blameworthy. Forthese groups, the conflict over Aishah’s age provides a chance toprove that they alone embrace “true”Islam,while other Muslimsare guilty of distorting the legacy of the Prophet.
Most Muslim authors, though, are not so openly dis-missive of the hadith sources, however inconvenient they mayfind them in this case. Those who reject the notion that theProphet consummated his marriage with Aishah when she wasnine sometimes argue or merely insinuate that the specificreports cited are inaccurate, leaving aside the question of thereliability of Bukhari or Muslim as a whole, and indeed usuallyrefraining from even mentioning the specific location of thereports in question. For example, T.O. Shanavas, affiliated with aKentucky-based organization called the Islamic Research Foun-dation International14 simply states that “We do not know theexact age at the time of her marriage due to lack of reliablerecords.”15 Other accounts may attempt to discredit the reliabil-ity of Hisham b.‘Urwa as a narrator, in order to cast doubt on theparticular account in question, which is related from Aishah on
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the authority of her nephew ‘Urwa on the authority of his sonHisham.16 Alternately, they may propose a different chronology,drawing from sira narratives, suggesting an earlier date of birthfor Aishah based on an account declaring her to be a “girl” when a particular event occurred. Recalculating Aishah’sage at marriage based on this nebulous evidence, such articlesgenerally put her in her early to mid-teens at the time ofconsummation.
The attempt to revise the standard narrative of Aishah’sage at marriage is not limited to online sources. In fact, the spe-cific features of the online discussion can be better appreciatedafter a brief detour to evaluate how the question of Aishah’s ageis treated in several recently published or reprinted works aimed at Muslim audiences. The late Pakistani ‘alim Syed Suleman Nadvi writes proudly of her youth and virginal status,declaring: “Out of all the wives of the Holy Prophet [only]Hazrat Aishah had the distinction of being a virgin wife.”17 The“wedlock” occurred when Aishah was at the “tender” age of six.Three years later, “the consummation of her marriage”occurred. “Aishah was then only nine years of age,” he writes.18
The “only” in Nadvi’s statement is a mark of pride, not a con-demnation. Nadvi here echoes statements attributed to Aishahherself in classical sources including Ibn Sa‘d, where her youthand especially virginity at marriage were a mark of honor, not abadge of shame.19
By contrast, in his book on the Prophet’s wives BritishMuslim Ahmad Thompson studiously avoids any mention ofconsummation. Thompson presents a succinct account ofevents: “Soon after arriving in Madina, ‘A’isha, who was nownine years old, was married to the Prophet Muhammad, whowas now fifty-four years old. It was at this point that she left herfamily’s household and joined that of the Prophet Muham-mad.”20 The age Thompson provides for Muhammad in thispassage coincides with the standard historical view of when con-summation took place; those who dispute Aishah’s age at thattime do so by suggesting an earlier birthdate rather than a laterdate of consummation. By giving Aishah’s age as nine when she“was married,” Thompson thus implicitly accepts the Bukhari
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view of when consummation occurred. Yet by not mentioningthe earlier contracting of the marriage at age six or seven,Thompson leaves the reader free to imagine that Aishah’s joining of the Prophet’s “household” at age nine represents amere shift of residence, not the beginning of a marital sexualrelationship.21
Mumtaz Moin, a Pakistani author, devotes one lengthyparagraph in her biography of Aishah to the question of her ageat consummation, but refrains quite deliberately from taking adefinitive position. She begins by noting that “The Muslimmedieval writers generally accepted the hadithes, according towhich the age of ‘A’ishah at the time of her nikah with theProphet was six or seven years, and thus she was nine years oldwhen the marriage was consummated, three years later.” Imme-diately following this, she declares that this view of events has“been criticized by modern historians in the light of carefulresearch. They hold that she was fourteen or, according to someauthorities, fifteen years of age at the time of the consummationof marriage.” While she refers to a few of the pieces of evidencecited in support of this view, mainly two references to Ibn Sa‘d(who elsewhere gives the same information as Bukhari), shedoes not name or cite any specific modern scholars who havepurportedly upheld it.
Moin proves reluctant to advocate these revisionistviews explicitly, presenting her points in detached terms, usingexpressions such as: “They hold,” “They base their argument,”“They also hold,” “It has also been argued,” and “It is furtherargued.” Nonetheless, Moin structures her discussion in such away that she leaves the reader with the impression that Aishahwas fourteen or fifteen at consummation.22 The assumption thatshe supports this view is strengthened by her reiteration, in theconclusion to the chapter, that “although most of the medievalMuslim historians and a number of modern writers” – and shegoes on to add the “Western Orientalists” to this group, in a fur-ther move to discredit their stance – “have rather uncriticallyaccepted the view that ‘A‘ishah was only nine years old when hermarriage was consummated, there are valid reasons to differfrom this view.”23 Moin thus impugns the reliability of the
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accepted narrative without directly confronting the hadithsources or explicitly affirming an alternate view.
The authors of online materials are dealing with anenvironment that differs in crucial ways from that of theseauthors. First, while Nadvi, Thompson, and Moin are address-ing the question of Aishah’s age at marriage in the context oflarger works on, respectively, the female companions of theProphet, the Prophet’s wives, and Aishah herself, online mater-ials are usually accessible in such a way that the question ofAishah’s age appears separately from any other biographical dis-cussions. Second, while some of the online discussions areaimed specifically at Muslims, the availability of materials toanyone with Internet access makes the actual audience signifi-cantly more diverse. Though, of course, there are no restrictionspreventing non-Muslims from purchasing books from Islamicpublishing houses, it is less likely that they will come across thesematerials without putting significant effort into obtainingthem. Third, and importantly, those who gain access to onlinearticles discussing Aishah’s age at marriage will likely havelocated them through an Internet search engine. This meansthat readers have plenty of opportunity to compare and contrastvarious accounts, making it more important to address compet-ing perspectives directly.
That said, quite a number of online articles simplyrefrain from providing specific details about the Bukhari hadith,even to question its reliability.Thus,a response to a query postedat Islam Online quotes Muzammil Siddiqi, former president ofthe largest American Muslim organization, the Islamic Societyof North America. Siddiqi does not discuss textual evidencespecifically but asserts that “Historically, it is not confirmed thatshe was 9 years old when she came in the household of theProphet. There are various reports from age 9 to age 24.”24 Later,he notes that “I do not agree that she was 9.”25 Such a formula-tion, with only vague references to “various reports,” withoutany consideration of relative authoritativeness of the sources,sidesteps the problem of the canonical nature of the hadithincluded in Bukhari’s Sahih.26 Siddiqi treats the report on which Vines’ accusation is based, and on which most polemics
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center, as simply an unconfirmed report with which he does notagree; he deftly dodges the larger issue of the reliability ofBukhari’s accounts.
In the context of an ongoing polemical struggle, how-ever, rejection of the narrative found in Bukhari and elsewherewould be a dangerous tactic, since it grants the premise that themost respected and widely accepted textual sources for Islam,outside of the Qur’an,are unreliable.Thus, those pieces found atthe “Answering Christianity” website (engaged in an ongoingseries of detailed and vigorous arguments with the “AnsweringIslam” site) do not ever question the premise that Aishah was nine at the time her marriage was consummated. Instead,they turn first to rational justification and then to counter-polemic.
Responding to the argument that it was morally wrongand sinful for Muhammad to have had intercourse with such ayoung girl, the authors at Answering Christianity and otherpolemical sites argue that marriage at puberty – which theyassume Aishah had reached – has historically been a commonhuman practice. The Prophet’s consummation of a marriagewith a nine-year-old girl was perfectly acceptable, they point out,in its socio-historical context. Puberty marked both physicaland social maturity, and Muhammad’s contemporaries foundnothing unusual in this marriage. Even medieval critics of Islamdid not object to this marriage on the basis of Aishah’s youth.Thus, one author notes that “It is therefore undeniable that con-summating the marriage upon puberty was also their practiceand not prohibited in their religions. The age restrictions there-fore only came to certain countries in our current century. It isindeed extremely hypocritical and ‘self-righteous’ to judge othercenturies, based on new criteria.”27 Proceeding to counter-attack, the authors claim that biblical and rabbinic sourcesdemonstrate the legitimacy of marrying very young girls.Indeed, they charge that criticism of the Prophet’s marriage toAishah is hypocrisy given the acceptability of even larger agegaps between some male figures and their female consorts.28
One prominent line of argument distorts a Talmudic discussionto suggest that Jewish law permits men to have sex with
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three-year-old girls.29 Compared to such a rule, a nine-year-oldgirl seems positively mature.
It is worth pointing out, however, that despite the sug-gestion by some of these authors that the delay between the contracting of Aishah’s marriage and its consummation was inorder for her to reach puberty, I have not found explicit refer-ences in classical sources to Aishah’s menarche serving as thetrigger for consummation of her marriage; in a few instances,precisely the opposite claim is made.30 Subsequent legal discus-sions fixing nine as an age of presumptive or potential majorityif the girl claims menarche sometimes rely on a parallel toAishah’s age at consummation. However, majority and/orarrival at puberty have no necessary connection with the con-summation of marriage. Though it is sometimes misleading toextrapolate back from later legal discussions, there was generalagreement among later jurists that the wife’s puberty was not anecessary precondition for consummation of a marriage. Pre-modern sources, including legal handbooks and Ottoman courtarchives, link a wife’s readiness for consummation not to bulughbut rather to being physically desirable and fit for intercourse.31
Searching for solace
Quite a number of articles geared at Muslims adopt and adaptarguments found in these polemics and counter-polemics,reshaping them into apologetic form, aimed at reassuring read-ers.32 The issue of Aishah’s age at marriage is often framed as amatter of addressing “misconceptions” held by non-MuslimWesterners, even when the author and audience are both pre-sumably Muslim. For example, one petitioner at Islam Onlinerequests that the mufti “help us address the misconceptions fill-ing the mind of some people, especially the Westerners aboutthe Prophet’s marriage to “Aishah, may Allah be pleased withher, as they claim it to be a sign of child abuse[.]”33Anotherquery, addressed to the online mufti of the Pakistani Jamaat-e-Islami by a South African doctor, describes having read thehadith discussing Aishah’s marriage as part of a Muslim study
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group. The writer then requests guidance as to how to answerquestions from non-Muslims about the matter. The responsefrom mufti M. Haq displays a great deal of angst over having toaddress the topic, noting that “I find it hard to discuss” anddeclaring that “I wished you had avoided this marriage or agequestion.”34 It is improper, he makes clear, for a Muslim to enter-tain doubts about any aspect of the Prophet’s conduct. It seemsthat the mufti is picking up on the unarticulated anxieties of hisquestioner, who had actually only asked about strategies forresponding to non-Muslims. However, there is no suggestionthat this questioner had actually been asked about the issue byanyone; it seems likely that he felt discomfort at Aishah’s youthand was asking about how to discuss the matter with non-Muslims as a way of asking for explanation and justification ofMuhammad’s conduct without suggesting that he himselfharbored any doubts about its propriety. In another instance, acontributor to a Muslim discussion board makes explicit theconnection between being asked about the marriage and feelingdiscomfort. He states that a question from his Christian friend“left me with a thorn in the heart of my faith.”35
Clearly, whatever the context in which it is raised,Aishah’s age at marriage is a difficult topic for many Muslims. Toa much lesser extent than in published works directed at Muslimaudiences, some online authors do present specifically “Islamic”rationales for the marriage of Muhammad to Aishah, thus contributing to a view of the marriage as serving a larger divinepurpose and rendering irrelevant any discussion of Muhammad’smotivations. The marriage was divinely ordained, they pointout, with the angel Jibril having displayed an image of Aishah tothe Prophet, declaring that she would be his wife. Further, themarriage cemented political allegiances and was thereforeimportant to the Muslim community.36 Most salient to the ques-tion of age, Aishah’s youth enabled her to live a long time afterthe death of the Prophet and serve as an authority on his actions.Thus, as Sabeel Ahmed writes,“The Prophet married Aishah forthe benefit of Islam and Humanity.”37 The notion of a divinepurpose to the marriage is, of course, not likely to sway anyonewho views the marriage as evidence for Muhammad’s base
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instincts, or indeed anyone who does not believe in Muham-mad’s prophethood. The inclusion of this type of material inarticles centered on Aishah’s age suggests that, rather than solelyaddressing non-Muslim criticism, the authors recognize theneed to reassure and convince Muslims of the appropriatenessof this marriage.
The need to assuage Muslim doubts vies with the desireto present an Islamic critique of Western and modern culturalideals and social practices. The author of one article from theJamaat-e-Islami website addresses the contemporary relevanceof this marriage when asked about age differences in marriageand the Prophet’s marriage to Aishah specifically. He counselsthat while child marriage might seem unacceptable today, andMuslims are under no compulsion to engage in it, one should bewary of criticizing it. Too strong a rejection of child marriage istantamount to accepting a Western agenda of women’s liber-ation and even “UN sponsored shari’ah.”38
The anxiety over capitulation to “Western” norms isever-present in Muslim discourses, even when texts are writtenby, and aimed at, Muslims living – and in some cases, born – inthe West. One article that strikes a particularly defiant tone in this regard is the widely cited “The Young Marriage of‘Aishah” by AbdurRahman Robert Squires.39 This article firstappeared in 1999, three years before Vines’ remarks, and it aimsboth at non-Muslim critics and Muslims who seek to appeasethem. “In the face of [non-Muslim] criticism,” Squires argues,“Muslims have not always reacted well.”Squires solidly backs thehadith sources, claiming that the evidence for Aishah’s age inBukhari and Muslim “is – Islamically speaking – overwhelm-ingly strong and Muslims who deny it do so only by sacrificingtheir intellectual honesty, pure faith or both.” Presumably,Squires would have harsh words for former ISNA president Siddiqi, who referred to these reports as “not confirmed.”
Yet “pure faith” seems insufficient for many Muslims,who must attempt to accept the Prophet’s action as blamelesswhile reconciling it with their own discomfort. Reflecting thedifficult nature of such an endeavor, a contributor to a discus-sion on ShiaChat wrote, in response to another’s suggestion to
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simply accept that Aishah was nine:“Like you said,there’s no pointtrying to cover up and make excuses for what the Prophet did,because that indicates that you are ashamed of Islam and do notagree with all of the rules,which makes you being a Muslim point-less.”40 His statement reflects unresolved, and uncomfortable,questions about the relevance of historical precedent to contem-porary circumstances, and the appropriateness of using contem-porary criteria to evaluate authoritative religious texts in generaland prophetic sunnah in particular. The radical variations in toneand content among the online discussions of Aishah’s age at mar-riage suggest that many Muslims feel torn between the impossibil-ity of uncritical acceptance of their inherited tradition and the fearthat any critical stance toward that tradition will be a capitulationto those Siddiqi calls “the enemies of Islam.”
Conclusion
As scholars of history will affirm, one cannot use the standardsof the present to judge the past.41 However, most Muslims arenot historians and their interest in the Prophet’s life and conductis not an academic exercise but an acutely felt religious one. It isa tricky proposition to accept that the Prophet is the model ofconduct for all Muslims while simultaneously believing that itwould be wrong of a Muslim man to follow his example in con-summating a marriage with a nine-year-old. This dissonanceaccounts for the substantial effort many have put into assertingor proving that Aishah had reached her teen years before hermarriage was consummated. A few individuals have suggestedthat one can accept the Bukhari account of the marriage whileconsidering Muhammad’s marriage to the young Aishah amongthose matters in which the regulations governing the Prophet’sactions differ from those governing that of other believingmen.42 However, though the accounts in works of sira andhadith treat Muhammad’s marriage to Aishah as somethingworthy of note, in part because of several divine signs ofapproval, they do not suggest that it was her youth that made themarriage exceptional or noteworthy.
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A more satisfactory means of grappling with theProphet’s commencement of conjugal life with a girl young byany standard, whatever her precise age, would recognize that thecircumstances under which this marriage took place were radic-ally different from those of the twenty-first century. Though inthe vast majority of Muslim contexts today a nine-year-old girlwould emphatically not be seen as an appropriate marriagepartner, there was nothing shocking or socially inappropriateabout such behavior in seventh-century Arabia.43 Though mostfirst-time brides were not nearly so young, there does not seemto have been controversy over the age difference, and someCompanions of the Prophet seem to have engaged in marriageswith a similar age gap.44 Notions of childhood, as numerous historical studies have shown, vary dramatically from place toplace, and imposing modern notions of adulthood as a criterionfor entering into marriage validly may be inappropriate. Recog-nizing the vast difference between socio-historical settings canbe freeing, initiating debates over the relevance of precedent,specifically sunnah, in radically changed contexts.
Just because one should not judge anachronistically,however, does not mean one should withhold all judgment. Justbecause a behavior is socially accepted does not make it good.Aswith slaveholding, thinking in terms of unjust social structures,rather than individual sin, can provide a helpful way of recon-sidering matters of sexual ethics.45 But while this avoids the theo-logically problematic notion that the Prophet did anythingobjectionable, what does it say about the inherent goodness ofmarriage between males and females of substantially differentages and levels of experience? What of such marriages today? Isit possible to argue that in any setting – tribal Afghanistan orrural India or the Arabian desert – such marriages are alwaysunfair to the girls involved? Can one argue that different sets ofstandards should apply to Muslims living in different societies,without falling into the trap of extreme moral relativism masquerading as multiculturalism? In order to address thesequestions, Muslim discussions of sunnah in general, and theProphet’s marriages more particularly, need to move beyonddefensiveness. Being consumed with combating negative
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portrayals of Islam and Muslims can lead thinkers to overlook orexcuse injustices that do occur, failing in the basic duty to com-mand the right and forbid the wrong. But how does one knowright and wrong, justice and injustice?
Philosophers and ethicists, both Muslim and non-Muslim, have been engaged for centuries in debates over whatconstitutes “good” and what is necessary for “justice.” For mostpremodern thinkers, slavery was morally neutral; it fell withinthe realm of justice – appropriate rights and obligations forthose of varying statuses – provided basic parameters of goodtreatment were met. Likewise, equality or sameness of rightsbetween husbands and wives in marriage was largely unthink-able. Marriage was not meant to be a setting for love betweenequals, but rather a particular kind of exchange by individualsfulfilling complementary roles; love was a bonus rather than aprerequisite.46 With this set of expectations, power might cometo a wife because of her youth and virginity (Aishah is reportedto have boasted of the latter, which distinguished her from the Prophet’s other wives, all of whom had been previously married) rather than because of wisdom and wealth.47
Those Muslims who strive for gender equality, con-sidering it an essential component of justice, must address the central issue: what is justice and on what basis does one know it?Is something good because God says so? Or does God say it isgood because it is, inherently, so?48 If what God says – andindeed, what the Prophet,“a beautiful example”(Q. 30:21), does– is automatically good, then what happens when this clasheswith one’s own view of what is just or good? Arriving at a work-ing resolution of this dilemma requires a consciousness of his-tory and an acceptance of the role of the individual conscience.If one wants to consider certain moral standards as absolutes –such as the injustice of slavery – one must accept that God some-times tolerates injustice.However, in a universe with human freewill, allowing injustice is not the same as being the cause of it;God repeatedly rejects responsibility for injustice in Qur’anicpassages declaring that God does not wrong or oppress peoplein any way, but rather people do wrong (zulm) “to their ownselves” (or “to their own souls”).49 This assertion is freeing, in
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that God does not demand that Muslims act contrary to the dictates of conscience. However, it also implies a much more sig-nificant responsibility for the individual human being to makeethical judgments and take moral actions. Qur’anic regulations,in this case, must be seen as only a starting point for the ethicaldevelopment of the human being, as well as for the transform-ation of human society.
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9It is customary to title the final section of a book “Conclusion,”but I have not done so here. Far from having completed a jour-ney, in this volume I have only attempted a first step towarddefining a problem.And the problem, as I currently see it, is this:meaningful consent and mutuality, both of which I believe to becrucial for a just ethics of sexual intimacy, are structurallyimpossible within the constraints of lawful sexuality as definedby the classical Muslim scholars, whose views – drawing fromand building on Qur’an and sunnah – permeate all Muslim discourses. It is possible to rethink Islamic sexual ethics toaccommodate these values and there are resources within Muslimtexts, both revealed and interpretive, for doing so. Nonetheless,an egalitarian sexual ethics cannot be constructed through pastiche; a methodology of picking-and-choosing, combiningisolated elements in expedient ways, will prove insufficient toresolve the core issue at stake. We need, instead, a serious con-sideration of what makes sex lawful in the sight of God. Theobvious response of “marriage”does not really answer the ques-tion.What type of bond does God require between spouses? Is itpayment of dower that transforms an illicit liaison into arespectable union? Is it a groom’s right of extrajudicial repudi-ation? A civil marriage license? The bride’s father’s consent? Apublic ceremony? Sincerity of commitment by the would-bespouses? All of these things? Something else entirely? Moreover,once it is decided what makes sex lawful, what makes it good? By“good” I do not primarily mean sex that is physically pleasur-able, although pleasure certainly matters, but rather sex that
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embodies, among other virtues, kindness, fairness, compassion,and generosity.1 These are all necessary if one is to live up to theideal of marriage set forth in the Qur’anic declaration that God“created for you mates from among yourselves that you may findtranquility with them, and put love and mercy between you.”2
Of course, despite this powerful and moving (and gender-neutral!) description of the divine purpose for marriage,the Qur’an also includes hierarchical and androcentric provi-sions for marriage and sex. The Prophet’s sunnah as recorded inhadith contains beautiful reminders to men to consider bothfemale pleasure and women’s tender feelings, but the samesources have demeaning references to women as objects of, andsubject to, male desire. The Muslim jurists who repeatedlyexhorted men to treat their wives kindly, to consider women’sneeds for sex and companionship, and not to abuse their powersof divorce, did so within a logical framework that considered alicit sexual union impossible unless a man’s exclusive controlover a woman’s sexual and reproductive capacity was estab-lished through marriage or slavery, which they discussed usingsimilar terminology. Given the competing models of appropri-ate sex and sexual relationships between and within these complex texts,how can Muslims draw on the sources in a coherentway to make ethico-legal decisions about our intimate lives?
My way of framing the question presupposes that Muslims will undertake this process of reflection primarily asindividuals, for ourselves and in dialogue with those close to us.That does not mean that religious authorities do not matter;there are thinkers whose ideas have wide currency in the West aswell as in Muslim-majority societies, and for those of us luckyenough to have a respected and thoughtful imam or other spir-itual figure at our mosque or in our community, he – or perhaps,she – may be a trusted resource. Still, while there are some formal institutions of Muslim religious learning in the UnitedStates, the majority of those who speak about Islam (or forIslam) have no special credentials to do so. It is often said thatthere is no clergy in Islam. Although that is technically true, pre-vious generations in Muslim majority societies have allocated aspecial role to the ‘ulama. In the West, there is no such class of
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individuals to serve as an anchor or foil for Muslim public andprivate discussions of these complicated issues. Indeed, therehas been little public discussion at all of what role religious lead-ers should play in Muslim life in the West, how they should bechosen and trained, and ultimately what type of authority theyshould wield. A limited conversation began in 2005, sparked bythe controversies over female prayer leadership,but it has not yetdeveloped into the kind of broader debate necessary for fullexploration of the key questions surrounding Muslim religiousauthority and institutions in the United States. Still, even formalstructures of religious authority will not remove the need forindividual Muslims to be substantially better informed aboutvital issues.
Reinterpretation is not only an individual project, forapplication in personal lives; it must also be a collective enter-prise of scholars thinking, talking, and writing jointly and incounter-point. Muslim feminists have become part of theIslamic intellectual tradition and, in doing so, have begun topush at its boundaries and reshape its contours.3 As we engagemore deeply with the intellectual heritage of centuries ofMuslim thinkers, we must neither romanticize the tradition as itstands nor be blindly optimistic about prospects for transform-ation within it. Most importantly, as we expose reductive andmisogynist understandings of the Qur’an and hadith, refusingto see medieval interpretations as coextensive with revelation,we must not arrogate to our own readings the same absolutistconviction we criticize in others. We must accept responsibilityfor making particular choices – and must acknowledge that theyare interpretive choices, not merely straightforward reiterationsof “what Islam says.”
In this project of interpretation, we must also recognizethat on matters of sexual ethics, the Qur’an itself poses chal-lenges for those committed to egalitarian social and intimaterelationships. Progressive approaches to the Qur’anic text cannot be limited to selective presentation of egalitarian versesin isolation from their broader scriptural context. Such anapproach is both fundamentally dishonest and ultimately futile;arguments about male/female equality built on the systematic
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avoidance of inconvenient verses will flounder at the first confrontation with something that endorses the hierarchicaland gender-differentiated regulations for males and femalesthat so many reformers would like to wish away. This is wherejurisprudential methods can offer much to Muslim feminists.Not because the rulings of the jurists are themselves egalitarian– for the most part, they are not when it comes to matters ofgender and sex – but because the ways in which jurists haverelated source texts to social contexts demonstrates that the lawthey constructed has “always already” been subjected to acts ofinterpretation. Their practice both authorizes by examplehuman interpretive reasoning and provides a useful model for constructive dialogue between textual sources and social custom, something that has always mattered a great deal wheresex and intimacy were concerned.
There are, and always have been, strong elements withinMuslim norms that value sex, both as a strong human need andalso as a foretaste of the delights of paradise. Sex is powerful andneeds regulation, no less so for its link with the sacred. As Ze’evMaghen points out, “Both sexuality and spirituality are largelyexercises in unruliness; the shari‘a delimits each of them andthereby makes them possible.”4 How, though, can a feministthink about sexual intimacy within the constraints of God’s revelation to humanity without becoming limited by patriar-chal notions that deny women’s lived experience and potentialas fully human, fully moral, and fully sexual beings? It is easy tofind revelatory support for women as fully human and fullymoral; it is more challenging, but not impossible, to see womenas fully sexual in a way that recognizes their status as moralagents. One must seek out and privilege these elements in thetradition, and justify one’s choices.Appealing to timeless princi-ples rather than historical specifics is a crucial interpretive strategy. But one must be prepared to define and defend theprinciples chosen and promoted in this way. For instance, thenecessity of equality as a component of justice must bedefended, not merely asserted. Discussions among feminist,reformist, liberal, and progressive Muslims must continueincreasing in philosophical and ethical complexity. Simplistic
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invocations of justice and equity are insufficient without con-sideration of the wide range of ways in which those terms havebeen and continue to be understood throughout Muslim his-tory. This will mean, in part, working through the conceptuallegacy of past generations of thinkers who have grappled withthese questions. Although there is something to be said for a“fresh” approach to the Qur’an, there is a wealth of insightfulmaterial that directly engages critical issues for those who seekegalitarian social relations today. And there is a lot to be said fornot having to reinvent the wheel.
It is important to realize, though, that if only those whoare trained as religious scholars (whatever that comes to mean)are deemed capable of engaging in discussions over how Muslims should behave in their intimate lives and how Muslimfamilies should be regulated, women will be largely excludedfrom ranks of those wielding religious knowledge. Althoughthere are no restrictions on female participation in scholarlyendeavors in theory – and a number of exceptional women, pastand present, have been recognized as religious authorities5 –there are significant practical obstacles to female education inmadrasa-settings. Likewise, there are social considerationsrestricting the ascription of religious authority to women. Ifmastery of the classical tradition is required in order to be considered credible, women are likely to be marginalized, if notentirely excluded, from interpretive reforms. And it mattersdeeply that women, whose concerns and perspectives differfrom men’s, be among those engaging in renewed ethicalthought on topics including marriage and sex.
As to the question of religious authority and influence,it is important to note that many Muslim thinkers and authorswho are perceived as authorities, and who write and speak froma position of authenticity, are not themselves fully grounded inthe classical tradition; they have a selective and often incoherentrelationship to law and scriptural interpretation. (As Abou ElFadl points out, “the connections between the classical episte-mological and hermeneutic heritage and Muslims living in theUnited States have been thoroughly severed.”6) Yet because theirviews are congruent with conventional wisdom about what is
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“Islamic” – or because their maleness and ethnic backgroundgive them an air of authority – their pronouncements are notquestioned. There are some scholars with a thorough groundingin the tradition who also engage with modernity in a compli-cated and thoughtful way but they are, sadly, relatively few compared to the broader group of those who speak in platitudesand, on issues associated with sex and sexuality in particular,make sweeping generalizations about women,gender,and Islamthat do not allow for nuance, dispute, or transformation.
Part of this book’s aim has been to highlight strikinginconsistencies in the way that several controversial topics areapproached in the work of specific authors and, more import-antly, certain conventional discourses. By pointing out theseinconsistencies and contradictions, it is possible to challengeand possibly dismantle certain dominant discourses. If some-one insists that a wife must be continuously sexually available toher husband because Bukhari includes the Prophet’s reportedwords to that effect, one can ask whether the questioner alsoaccepts the authenticity of Bukhari’s report that the Prophetconsummated his marriage with Aishah when she was nine. Ifsomeone insists that polygamy is valid for all times and in allplaces because the Qur’an authorizes it,one can inquire whetherthe same holds true for slavery. Such juxtapositions do notreplace systematic and nuanced exploration of the topics athand; they serve, rather, to shock one’s discussion partner intoconsidering a familiar topic without the comfortable veneer ofapologetic conventional wisdom. One should not stop withrough analogies on complex issues, but rather use those analo-gies to (re)open dormant questions about the timelessness ofspecific points in the Qur’an and hadith.
The freedom to treat Qur’an and hadith not as reposi-tories of regulations to be applied literally in all times and placesbut as sources of guidance for Muslims in transforming theirsocieties in the direction of fairness and justice is important.Individuals must be willing to take responsibility for acts ofinterpretation, rather than insisting that they are simply doingwhat “Islam” requires. In fact, it is a precondition for keepingIslam relevant that Muslims’understandings shift over time and
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place. Islam is meant to be lived in history, and human beingshave, for better or worse, taken on the role of earthly vicegerents.That role cannot be fulfilled by merely carrying out orders, butmust involve the exercise of initiative, judgment, and con-science. This matters not only at the level of social reform,however; the conservative view that the family is the bedrock ofsociety deserves real attention. The values that are taught andespecially lived in intimate contexts should be guided by deepethical reflection on the overarching divine purpose for humanlife on earth: to command what is right, to forbid what is wrong,to do good deeds, and to be ever-conscious of God.
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Notes to Introduction
1. Wolfe and Beliefnet, eds., Taking Back Islam.2. On the genesis of these images, see Kahf, Western Representations of the
Muslim Woman.3. Al-Sheha, Woman in the Shade of Islam, p. 79.4. One Indian author writing in the 1970s sums up a dominant view:
“While we are by no means opposed to the granting of all legitimatefreedom to women, we cannot afford to import the characteristic evilsof Western civilization in respect of sexual liberty.” Niazi, Modern Chal-lenges to Muslim Families, pp. 60–61.
5. Doi, Woman in Shari’ah, p. 185.6. See also Wani, Maintenance Rights of Muslim Women, p. 9.7. Al-Shafi‘i, Al-Umm, K. al-Sadaq, “Al-shart fi’l-nikah,” vol. 5, p. 108.8. Sheila Briggs’ remarks, Feminist Sexual Ethics Project colloquium III,
Brandeis University, September 2005.9. Yalom and Carstensen, “Introduction,” in idem., eds., Inside the Ameri-
can Couple, p. 10. See also Yalom, A History of the Wife. 10. A number of female slaves mentioned in biblical stories bore children
sired by their masters, who included Abraham and Jacob. On the sexualuse of male slaves in the ancient world, see chapter 5.
11. Michael Sells’ insistence that work on religion and violence must befirst, comparative, and second, both critical and self-critical, appliesequally to work on issues of religion and sexuality. Michael Sells, lectureat Brandeis University, April 21, 2005.
12. Yalom, “Biblical Models: From Adam and Eve to the Bride of Christ,” p. 15. Even if Yalom is generalizing here – there are some denomin-ations that ceased using wifely promises of obedience long before thetime she designates – the point is well taken. See also the 1945 New Jersey verdict quoted by Shanely, Just Marriage, p. 8.
13. Haideh Moghissi, however, argues that “only individuals who have some-how escaped the sexual repression which dominates the lives of women andmen in Islamic societies can deny its overriding role in defining women’sexperience. Poverty and hunger hang over women’s heads throughout theregion. But … sexuality and sexual repression are where women suffermost.” Moghissi, Feminism and Islamic Fundamentalism, p. 95.
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14. Plaskow, “Decentering Sex,” p. 30.15. Ruxton, Maliki Law, p. v.16. Historian Huda Lutfi, referring to a fourteenth-century Cairene docu-
ment makes a more broadly applicable point: “prescriptive religious literature should not necessarily be taken as a reflection of reality.” Lutfi,“Manners and Customs of Fourteenth-Century Cairene Women,” p. 102. See also Sonbol, “Introduction,” in idem, ed., Women, the Family, and Divorce Laws in Islamic History.
17. Tucker, Gender and Islamic History.18. Ahmed, A Border Passage, p. 128. Ahmed does recognize the value of this
tradition, at least in comparison to “fundamentalist Islam, textualIslam’s more narrow and more poorly informed modern descendant.”See also Ahmed, Women and Gender in Islam, p. 239, where she writes ofthe dominance of the “technical, legalistic, establishment version ofIslam, a version that largely bypasses the ethical elements in the Islamicmessage.”
19. Kevin Reinhart (at the Mapping Muslim Ethics colloquium, Duke Uni-versity, April 2005) pointed out the paradox in my project: I amattempting to contest the jurists’ interpretive authority in part by focus-ing on them.
20. Khaled Abou El Fadl describes the selective approach to Qur’an andsunnah reflected in “the endless stream of dogma that one encounters inMuslim conferences, lectures, and publications,” in The Authoritativeand the Authoritarian in Islamic Discourses, p. 17. A focus on Qur’an and“authentic” hadith to the exclusion of jurisprudential doctrines charac-terizes even some self-identified progressive authors, such as Syed, ThePosition of Women in Islam. Syed (p. ix) describes his approach: “I startwith the relevant verses of the Quran followed by the appropriate,authentic Hadith and have supplemented where necessary with relevantremarks and comments of Islamic authorities and scholars;” addition-ally, he provides his “own comments in areas where there is no com-pelling authority to follow and yet where an urgent answer is needed.”
21. Rahman, Islamic Methodology in History, is the best developed defenseof this approach.
22. Jonathan Brockopp notes that there is “a substantial literature undereach of these categories,” but “we would look in vain here for practicalapplication of Islamic ideals to matters of daily life.” See “Taking Lifeand Saving Life,” in idem, ed., Islamic Ethics of Life, p. 10. On ethicalthought broadly, see Hourani, Reason and Tradition in Islamic Ethics.
23. Brockopp, “Taking Life and Saving Life,” p. 10. He also notes that“sharia is far too large a category to be reduced to ethics,” as it alsoencompasses ritual matters that are outside the purview of ethicalthought (p. 11).
24. Faruki, “Legal Implications for Today of al-Ahkam al-Khamsa.” Farukimentions, but does not discuss in detail, historical developments of thisscheme over several centuries.
25. See Jackson, Islam and the Blackamerican, p. 160. The phenomenal suc-cess of scholar and media figure Yusuf al-Qaradawi’s The Lawful and theProhibited in Islam, is indicative of the desire for simple answers; a children’s title by Mohammad Mazhar Hussaini likewise proclaims itsrelevance as My Little Book of Halal and Haram.
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26. Wael Hallaq argues “that the shari‘a is no longer a tenable reality” andthose who advocate its reapplication are “in an irredeemable state ofdenial.” Hallaq, “Can the Shari‘a be Restored?,” p. 22.
27. Murad, “Boys will be Boys: Gender Identity Issues.”28. Zahra Ayubi points out, however, that some immigrants base their view
of Islamic legal requirements (e.g., with regard to woman-initiateddivorce) on modern statutory provisions of their country of originrather than any legal school. Ayubi, “American Muslim Women Nego-tiating Divorce,” p. 48.
29. Taji-Farouki and Nafi, “Introduction,” in idem, eds., Islamic Thought inthe Twentieth Century, p. 10.
30. “[O]ne of the most significant features of contemporary Muslimthought is the attachment to and even veneration of ‘Islam’ in contro-versial debate. Thus we find that [authors] accurately represent Muslimthought when they say that ‘Islam requires,’ or ‘Islam accepts,’ or someother similar locution.” Reinhart, “The Past in the Future of IslamicEthics,” p. 216.
31. Abou El Fadl, Speaking in God’s Name, pp. 144–5, 62–3.32. Al-Yawm al-Sa‘udi, “ ‘Al-tahjiz’ wa ijbar al-mar’a ‘ala al-zawaj min
akbar anwa‘ al-zulm.” Antoun, “The Islamic Court,” p. 464, discusses acase where a contemporary Jordanian judge concluded that al-Shafi‘iwas wrong in allowing fathers to compel marriages for their children.For references to female consent in works aimed at a general audience,in addition to the sources cited in Ali, “A Beautiful Example,” pp. 283–4,see, e.g., Al-Sheha, Woman in the Shade of Islam, p. 39: “Islam con-sidered the opinion of the daughter in the marriage as an essential condi-tion for the validity of the marriage itself.” Describing “classical Islamiclaw” (or Shari‘a) specifically, Khadduri, “Marriage in Islamic Law,” p. 213, declares: “Although an offer to marry is actually made through awoman’s father, the woman’s consent is considered imperative if thecontract is to be binding.” Fadel, “Reinterpreting the Guardian’s Role,”provides a substantive re-evaluation of Maliki doctrine, and discusses itsrelevance to Muslim marriage in the United States.
33. Sahih Muslim, trans. Siddiqi. The quote is from vol. 1–2, p. 702; hadithdiscussing sex with female slaves are found in vol. 1–2, pp. 734–5 and743–4. See also Hidayatullah, “Islamic Conceptions of Sexuality,” p. 263, where she declares that “According to the Qur’an, the propervehicle for enjoying the union between sexual partners is marriage. Infact, it is the only acceptable framework for sexual relations between twohuman beings.” She refers briefly to the Prophet’s practice of concubi-nage on p. 290, n. 14. On slavery generally, and slave concubinagespecifically, see chapter 3.
34. I owe the use of the term “dissonance” in this context to Farid Esack,personal conversation, April 2005.
35. Mohja Kahf, personal communication, March 2004.36. Full disclosure: I was one of three scholars contributing a brief essay. 37. Kugle, “Enough with the Prudes: Bring On ‘Sex and the Umma’.”38. Bailey, Sexual Ethics: A Christian View, p. 8.
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Notes to Chapter 1
1. Al-Ghazali (Kitab Adab al-Nikah from Ihya’ ‘Ulum al-Din), trans. Holland, The Proper Conduct of Marriage, p. 75.
2. Ibn ‘Abidin, Radd al-Muhtar, vol. 4, p. 379. The text points out diver-gent views among earlier Hanafi authorities about the precise contoursof a husband’s sexual obligations to his wife (and even his concubines),but even those who hold that a husband may not abandon intercoursewith his wife entirely acknowledge that any failure in this regard is notactionable before a judge once he has “exhausted her right” by consum-mation.
3. Friedmann, Tolerance and Coercion in Islam, p. 193.4. For one first-person account of such a marriage, see Sharif-Clark, “Mar-
rying a Believer.” 5. This phrase, from Q. 4:34, is usually taken by exegetes to refer to both
dower and spousal support, nafaqa. See below.6. Ahmed, Women and Gender in Islam, pp. 42–6, and sources cited there.7. Khadduri, “Marriage in Islamic Law,” p. 213.8. Mashhour, “Islamic Law and Gender Equality,” pp. 564–5.9. Ahmed, Women and Gender in Islam, p. 45; Ahmed is making a general
point here, not specifically discussing sadaq.10. Women’s clear legal claim to dower might be vitiated in practice, with
the payment either withheld by the husband or his family after marriage, divorce, or widowhood, or received and kept by the bride’sfamily. Judges have routinely and consistently enforced female dowerclaims when these are brought to court. For one anecdote, see Antoun,“The Islamic Court,” pp. 456–7; see also Tucker, In the House of the Law,pp. 53–5. On the shifting patterns of dower in Palestinian women’sexperiences, see Moors, Women, Property, and Islam. Additionally,although the legally required transfer is unidirectional, a number ofMuslim societies have had informal exchanges that, in practice, trans-ferred resources from the bride’s family to the groom throughtrousseaus or other exchanges. See Tucker, In the House of the Law, pp. 55–7; Zomeño, Dote y matrimonio en al-Andalus y el norte de Africa;and Rapoport, Marriage, Money, and Divorce in Medieval Islamic Society, pp. 12–30, who discusses the function of the trousseau as a typeof “gender-specific pre-mortem inheritance” (p. 30).
11. Wynn, “Marriage Contracts and Women’s Rights in Saudi Arabia,” andHoodfar, “Circumventing Legal Limitation.” See also Mir-Hosseini,Marriage on Trial, for discussion of how dower and support obligationsare used as bargaining chips in divorce negotiations in Iran andMorocco.
12. Qaisi, “A Student Note.”13. See Al-Shafi‘i, Kitab Ikhtilaf Malik wa’l-Shafi‘i, in Al-Umm, vol. 7,
p. 376; and, for similar language, Al-Shafi‘i, Al-Umm, K. al-Sadaq, “Fi’lsadaq bi aynihi yatlafu qabla dafa‘ahu,” vol. 5, p. 92; K. al-Nafaqat,“Ikhtilaf al-rajul wa’l-mar’a fi’l-khul‘,” vol. 5, p. 300; K. al-Sadaq,“Sadaq al-shay’ bi aynihi fa yujadu mu‘ayban,” vol. 5, p. 111; and Al-Muzani, Mukhtasar al-Muzani, K. al-Nikah, “Sadaq ma yazidu bibudnihi wa yanqasu,” in Al-Umm, vol. 9, p. 194.
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14. See, among other verses, Q. 4:4, 20, 24–5, and 34.15. Q. 4:24.16. In which case, as discussed further in chapter 2, she is using a delegated
power of divorce.17. Ali, “Progressive Muslims and Islamic Jurisprudence,” pp. 169, 178–9;
Mir-Hosseini, Islam and Gender, p. 72, for one example of where thisrhetoric breaks down.
18. See Moghissi, Feminism and Islamic Fundamentalism, pp. 21–2; Kugle,“Sexuality, Diversity, and Ethics,” pp. 192–3.
19. Schmidtke, “Homoeroticism and Homosexuality in Islam,” p. 261(although she generalizes regarding “the Judaeo-Christian tradition”).On attempts to draw a similar distinction between Judaism and Chris-tianity, see Boyarin, A Radical Jew.
20. “La rahbaniyya fi’l-Islam.” Although this hadith is famous, it is appar-ently non-canonical. See Maghen, Virtues of the Flesh, p. 5, n. 11.
21. For one contemporary example, see Abdul-Ra’uf, Marriage in Islam, pp. 49–53. Abdul-Ra’uf quotes some of the Qur’anic passages andhadith reports used by al-Ghazali, below.
22. Al-Sheha, Woman in the Shade of Islam, p. 49 notes this rationale forwives’ sexual rights: “The husband is required and obliged by Islamiclaw to fulfill the sexual rights of his spouse, to ensure the satisfaction ofthe spouse so as to refrain one’s spouse from getting involved in shame-ful acts, may Allah forbid.”
23. Al-Ghazali died in 1111 CE. For a recent discussion of al-Ghazali, seeMoosa, Al-Ghazali and the Poetics of Imagination. Moosa writes (p. 12)that “the Muslim tradition is saturated with Ghazali’s traces.” Al-Ghazali’sdiscussion of sex in the Ihya’ is one of the main sources for scholarstoday discussing sexuality in the classical tradition. See, for instance,Hidayatullah, “Islamic Conceptions of Sexuality,” pp. 264–9, 273.Fourteenth-century jurist Ibn al-Hajj expressed similar sentiments; see Lutfi, “Manners and Customs of Fourteenth-Century CaireneWomen,” pp. 107–8.
24. Of course, within marriage the husband’s duties are the wife’s rights,and vice-versa, but the choice to address the husband as the relevantactor is noteworthy.
25. Al-Ghazali, trans. Holland, The Proper Conduct of Marriage, p. 74. Theverse is Q. 2:223 trans. ‘Abdullah Yusuf Ali. For discussion of other provisions of this verse, see chapter 7.
26. Al-Ghazali, trans. Holland, The Proper Conduct of Marriage, p. 75.27. Shaikh, “Family Planning, Contraception, and Abortion in Islam,” p. 115. 28. Shaikh, “Family Planning, Contraception, and Abortion in Islam,”
p. 114; see also al-Hibri, “An Introduction,” pp. 57–8.29. Shaikh does not refer to the Shafi‘i view that the wife’s consent is
not required. See Musallam, Sex and Society in Islam, p. 31; Bowen,“Muslim Juridical Opinions,” pp. 325, 327–8. Also see Keller, Reliance ofthe Traveller, p. 526.
30. These points have been treated in works from Fatna Sabbah’s Woman inthe Muslim Unconscious to Geraldine Brooks’ journalistic Nine Parts ofDesire: The Hidden World of Islamic Women. Sabbah’s text is prob-lematic in numerous respects for conflating source texts with theirinterpretation. However, it was groundbreaking and still offers some
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important insights into the Islamic tradition. Fatima Mernissi’s workaddresses the same issues; see especially the articles collected inWomen’s Rebellion and Islamic Memory. Malti-Douglas’ Woman’s Body,Woman’s Word traces these themes through a variety of medievalArabo-Muslim literary texts.
31. See, e.g., Ahmed, Women and Gender in Islam, p. 27 and Lutfi, “Manners and Customs of Fourteenth-Century Cairene Women,” esp. pp. 117–8.
32. Ibn Jibreen is one of the muftis associated with the Saudi fatwa organ-ization studied by Abou El Fadl in his Speaking in God’s Name.
33. Ibn Baz, et al., Fatawa Islamiyah, vol. 5, p. 391.34. In another passage in the Ihya’ overlooked by those who quote him in
support of women’s sexual rights, al-Ghazali praises the practice offemale circumcision; see Berkey, “Circumcision Circumscribed,” p. 32.
35. The parenthetical “at least” seems to be the translator’s addition.36. Sahih Muslim, K. Al-Nikah, “It is not permissible for a woman to aban-
don the bed of her husband,” trans. Siddiqi, vol. 1–2, p. 732. A variantending is also mentioned with “until she comes back” instead of “untilmorning.”
37. Sahih Muslim, K. Al-Nikah, “It is not permissible for a woman to abandon the bed of her husband,” trans. Siddiqi, vol. 1–2, p. 732.
38. Sahih Bukhari, K. Al-Nikah, “If a woman spends the night deserting herhusband’s bed,” trans. Khan, vol. 7, p. 93.
39. See Ali, “Money, Sex, and Power,” esp. chapter 2.40. Fatawa-I-Kazee Khan, vol. 1, p. 270 (1588, #688).41. Wani, Maintenance Rights of Muslim Women, p. 24. 42. See Ali, “Money, Sex, and Power,” chapter 2. Consent to sex within mar-
riage is one area where comparative examples can be especially useful insorting through the range of Muslim views. On medieval Catholiccanon law, see Brundage, “Implied Consent to Intercourse.” Maritalrape is a fairly recent legal offense; a woman’s husband “could force sexual intercourse upon her without being guilty of rape” in Englanduntil a 1991 court decision. See Doggett, Marriage, Wife Beating, and theLaw in Victorian England, p. 46.
43. Sahih Bukhari, K. al-Nikah, “Your wife has a right over you,” trans.Khan, vol. 7, p. 97; see a similar anecdote in Al-Sheha, Woman in theShade of Islam, pp. 49–50.
44. See Ali, “Money, Sex, and Power,” chapter 2.45. Ibn Taymiyya is often quoted as espousing a more categorical right to
divorce for a woman whose husband does not have sex with her. See Al-Sadlaan, Marital Discord (al-Nushooz), p. 33; and al-Hibri, “AnIntroduction,” p. 70, n. 70.
46. The term muhsanat is used in at least two different senses in the Qur’an.In some places, such as Q. 4:24, it means married females; in Q. 5:5 itclearly refers to unmarried women. Views differ as to whether, in thiscontext, it means women who are chaste or those who are free. Thisambiguity gave rise to juristic disagreement over whether a free Muslimman could marry an enslaved kitabiyya (i.e., woman from ahl al-kitab).The general Hanafi view was that such a marriage was permitted, butother Sunni jurists held that while concubinage with an enslavedkitabiyya was acceptable, and marriage with a free kitabiyya likewise, a
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free Muslim man could only marry an enslaved woman if she was Muslim. None of this discussion considers the linkage between virtueand freedom, or rather the presumption that a female slave could orwould not be chaste. I borrow the translation of muhsanat as “virtuous”from Friedmann, Tolerance and Coercion in Islam, pp. 161, 179. My discussion of intermarriage touches on classical topics also covered byFriedmann’s thoughtful and thorough chapter, “Interfaith Marriage,” pp. 160–93, and I have cited his text as a resource for those interested inpursuing further the specific topics discussed here.
47. They disagreed, however, as to whether that dissolution took placeimmediately and irrevocably or was suspended until the end of thewife’s post-marital waiting period; in the latter view, if the husband con-verted before the waiting period expired, the marriage would continuein force.
48. Friedmann, Tolerance and Coercion in Islam, p. 161.49. For a brief discussion of “marriage equality,” see Marlow, Hierarchy and
Egalitarianism in Islamic Thought, pp. 30–34; also see Siddiqui, “Lawand the Desire for Social Control,” and Zomeño, “Kafa’a in the MalikiSchool.”
50. Hamilton, The Hedaya, or Guide, vol. 1, p. 110. Hamilton’s often quirkyrendering (“more like a summary of al-Marghinani’s views, as theyappeared in the Persian translation, expressed in Hamilton’s language”than a translation, according to Imran Ahsan Khan Nyazee [Ibn Rushd,The Distinguished Jurist’s Primer, xlvi]) is the only accessible Englishversion to date; I have retained his language here. A new translation ofthe Hidaya by Nyazee is forthcoming from Amal Press (Bristol, England), with the first volume slated for publication in 2006.
51. Rather, he provides an extended discussion of the (im)permissibility ofmen’s marrying kitabiyyat and/or “idolatresses,” mushrikat, either free orenslaved. The Distinguished Jurist’s Primer, 2:51–3. This is not simplybecause he is concerned with the lawfulness of men’s actions alone; theimmediately preceding section discusses, if only briefly, the case ofwomen marrying male slaves. (It is permissible, provided that thewomen’s guardians agree and that the slaves in question do not belong tothe women themselves. The Distinguished Jurist’s Primer, 2:49, 51. How-ever, a number of legal thinkers consider marriage between free femalesand enslaved males so blameworthy as to be practically forbidden.)
52. Keller, Reliance of the Traveller, p. 529.53. See Friedmann, Tolerance and Coercion in Islam, pp. 172–3, esp. n. 72,
and my discussion below.54. Fatawa-I-Kazee Khan, vol. 1, p. 115 (1216 #316); see also Friedmann,
Tolerance and Coercion in Islam, p. 180. Friedmann, pp. 185–6, identi-fies Ibn Hazm and Abu Thawr as holding that marriage to Zoroastrianswas permissible. In other contexts where Hindus or Buddhists were therelevant minority, some Muslim scholars seem to have held that theywere to be considered recipients of revelation (ahl al-kitab), suggestinga strong practical role for proximity in what some consider purely theo-logical questions.
55. Fatawa-I-Kazee Khan, vol. 1, p. 115 (1216 #316). 56. Here, I am only treating the case of conversion by “people of the Book.” In
the case of other (pagan, polytheist, etc.) converts to Islam, or of apostasy
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from Islam, no marriage can stand, whether it is the husband or the wifewho is the Muslim partner. Again, however, very early Muslim practiceallows for ambiguity on this topic; there is some dispute, for instance, overwhether the marriage of one of the Prophet’s daughters to Abu al-‘As waspreserved despite his refusal to convert until her waiting period had longexpired or whether a new marriage followed his conversion. Accountstaking both views are found in Sunan al-Tirmidhi, K. al-Nikah, “Ma ja’afi’l-zawjayn al-mushrikayn yuslimu ihdahuma,” vol. 3, pp. 447–8.
57. Alalwani, “Fiqh of Minorities (1 of 3).” I would like to thank JunaidQadri (personal communication, November 2004) for bringing thisarticle to my attention.
58. See Friedmann, Tolerance and Coercion in Islam, p. 172. Friedmann doesnot highlight the distinction between already being married and gettingmarried when noting the eventual demise of the “current of opinion willing to countenance the preservation of a Muslim woman’s marriageto an unbeliever.” Notably, some of these unbelievers were non-kitabis.
59. European Council for Fatwa, Resolution 3/8, “A woman embracesIslam and her husband does not,” from the Final Statement of the 8thOrdinary Session.
60. He thus passes the first test that Abou El Fadl sets in his discussion ofauthoritarianism in Islamic thought. Syed, discussing this issue (ThePosition of Women in Islam, pp. 44–7), also acknowledges the jurists’prohibition and that “practice from the earliest time is against suchunions” but uses a legal maxim regarding permissibility to declare (p. 47) that “it is an acceptable proposition that Islamic law permitsmarriage between Muslim men and Muslim women with women andmen, respectively, belonging to the ahlil kitab.” Syed contends that theQur’an and the hadith “are silent on the question of Muslim womenmarrying kitabis.”
61. See, for example, the fatwa from Islam Q&A (www.islam-qa.com) “Ruling on a Muslim man marrying a non-Muslim woman and viceversa” (Question #21380). No individual mufti is listed as the author ofthe response in question, but renowned classical exegetes are quoted as prohibiting all marriages between Muslim women and any non-Muslim, whether mushrik or kitabi.
62. On the applicability of Qur’anic commands to men and women, seechapter 7.
Notes to Chapter 2
1. Sunan Abi Dawud, K. al-Talaq, “Bab fi karahiyyat al-talaq,” vol. 1, p. 503. Also there: “To God, Exalted and Majestic, the most repugnant(abghad) of what is lawful is divorce.
2. Fatawa-I-Kazee Khan, vol. 2, p. 167 (2263 #1363).3. For a survey of twentieth-century reforms in divorce laws, see
An-Na’im, ed., Islamic Family Law in a Changing World. For a mid-twentieth-century discussion of Indian application of Muslim divorcelaw, see Fyzee, Outlines of Muhammadan Law, pp. 123–62.
4. Q. 4:35, 128.
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5. Barring her involvement in “clear lewdness,” on which see Q. 4:19; Q. 2:229 discusses the permissibility of compensation if both partiesfear they will not be able to adhere to appropriate limits. Ibn Rushd, TheDistinguished Jurist’s Primer, vol. 2, pp. 79–84 discusses the debates overwhen and whether (and how much) compensation was permitted.
6. There are two exceptions: widows wait for four months and ten days,regardless of whether the marriage was consummated, and pregnantwomen’s waiting periods end when they give birth. There has been dis-pute, however, about the case of the pregnant widow; most have settledon the view that her ‘idda ends when she gives birth and she need notobserve the rest of the mourning period. Additionally, there is a differ-ent length of waiting periods for slave and free women.
7. The jurists understand this intervening marriage to be necessary fromQur’an (2:230); they rule that this marriage to a different husband mustbe consummated based on a reported statement from the Prophet thatit was not lawful for a woman to return to a husband who had divorcedher three times “until she has tasted the sweetness [of intercourse]” withher other husband. See, among other sources, Sahih Bukhari, Book ofDivorce, “If he divorces her triply and she marries another husbandafter the waiting period,” trans. Khan, vol. 7, p. 182; and Tirmidhi, K. al-Nikah, “On the one for whom [she is] made lawful and the onewho makes [her] lawful,” vol. 3, pp. 427–9.
8. See, for a brief summary of differences on this point, Coulson, A Historyof Islamic Law, pp. 111–13.
9. A few early authorities including Sa‘id ibn al-Musayyab held that a mancould take his wife back during her waiting period from khul‘, evenwithout her consent, if he returned to her the compensation she hadpaid him.
10. Ironically, even some members of the ‘ulama turned to this type ofargument in their efforts to defeat proposed Egyptian legislation forstipulations in marriage contracts. Ron Shaham summarizes the argu-ments of the Shaykh al-Azhar: “The Qur’an defined the required relationship between the spouses as being based on love and compassion,whereas the proposed stipulations in the marriage contract reduced thisrelationship to a property transaction based on bargaining.” Shaham,“State, Feminists and Islamists,” p. 477.
11. Ayubi, “American Muslim Women Negotiating Divorce,” pp. 128–33.12. Zahra Ayubi’s thesis in progress, however, indicates that in some cases
Muslim immigrants refer to the laws of their nations of origin as theirsource for authoritative Islamic law.
13. Fatawa-I-Kazee Khan, vol. 2, p. 167 (2263 #1363). See also Haskafi, TheDurr-ul-Mukhtar, pp. 230–1.
14. The husband’s ability to refute a woman’s claims that he has divorcedher by taking an oath seems to have been widely practiced. One case inthe Musannaf of Ibn Abi Shayba (vol. 5, pp. 251–2) unwittingly attests to this practice when discussing a matter of inheritance in the case of“the man whose wife claimed that he had divorced her and she broughthim up to the Sultan, and he had him swear that he had not divorced her,then he returned her to him.” When he dies, the fact that she inheritedfrom him implies the continued validity of the marriage.
15. Tucker, In the House of the Law, p. 65; Tucker’s translation.
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16. As a practical matter, premodern Hanafi judges found ways aroundwomen’s access to divorce while preserving inflexibility of doctrine.
17. For the concept of “traditionist-jurisprudent,” see Melchert, “Trad-itionist-Jurisprudents and the Framing of Islamic Law.”
18. Spectorsky, Chapters on Marriage and Divorce, pp. 248–9. 19. Jennings, “Divorce in the Ottoman Sharia,” p. 165 notes that cases of
“claims and counterclaims” are common. 20. See country profiles in An-Na’im, Islamic Family Law in a Changing
World, for specifics.21. This can cause problems where a suspended or conditional oath of
divorce working to secure the wife’s option to leave the marriage if thehusband does (or fails to do) a particular deed relies on the resultingdivorce to be final. Given the interconnected and intricately interwovennature of legal doctrines, tinkering with one portion of the system islikely to have significant unintended consequences elsewhere.
22. As Amira Sonbol argues, it is not always the case that codified nationallaws are always better than “traditional” jurisprudential doctrines. See“Introduction,” in Sonbol, (ed.), Women, the Family, and Divorce Lawsin Islamic History.
23. Esposito with DeLong-Bas, Women in Muslim Family Law, p. 60; seealso Mashhour, “Islamic Law and Gender Equality,” pp. 582–4.
24. Esposito with DeLong-Bas, Women in Muslim Family Law, p. 80.25. Some have argued that the availability of khul‘ induces women who
have legitimate grounds for judicial divorce without relinquishing ofdower to give up their dower in exchange for ease of obtaining maritaldissolution.
26. See Al-Sheha, Woman in the Shade of Islam, pp. 101–3 for a summary ofrepresentative views on women’s initiation of divorce. Al-Sheha insiststhat “The most natural and logical way to this peace [mentioned in Q. 4:128] is to let the man have control of the divorce process, not thewoman.”
27. Eid, “Marriage, Divorce and Child Custody as Experienced by Ameri-can Muslims,” proposes such a system. The Canadian Council of Muslim Women has been arguing against a similar proposal at theprovincial level.
28. An-Na’im, “Shari’a and Islamic Family Law,” p. 3; see also p. 16.29. An-Na’im, “Shari’a and Islamic Family Law,” p. 8.30. The use of U.S. law has been an essential element of the strategy pro-
posed by Karamah: Muslim Women Lawyers for Human Rights(www.karamah.org) for Muslim women to safeguard their rights.
Notes to Chapter 3
1. Haskafi, The Durr-ul-Mukhtar, p. 24. I have altered B.M. Dayal’s trans-lation of this passage in several respects.
2. Modern apologetics, as will be seen below, frequently claim instead thatshe was a wife. A war captive, Rayhana, is likely to have been Muham-mad’s concubine, though some sources suggest that he manumitted andthen married her, as he had done with Safiyya, another war prisoner he
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purchased from her captor. See Ibn Kathir, The Life of the ProphetMuhammad; and Hidayatullah, Mariyah the Copt.
3. Q. 2:221, 24:32.4. Terms for male slaves included ‘abd (also “worshipper”) and both
ghulam and fatah, which could refer to either male slaves or male youths.5. Mattson, “A Believing Slave is Better Than an Unbeliever,” p. 134.6. Ahmed, Women and Gender in Islam, pp. 67, 79–101.7. See Q. 4:3. Al-Umm, K. al-Nafaqat, “Ma ja’a fi ‘adad ma yahillu min
al-hara’ir wa’l-imma’ wa ma tahillu bihi al-furuj,” 5:215. 8. While there were frequently distinctions made between types of slaves
based on race, slavery as a whole was not racialized in Muslim contextsin the way that it was in the U.S. See Lewis, Race and Slavery in the Middle East.
9. Peirce, The Imperial Harem. Their situation was unusual, however, andsome have suggested that scholarship should not treat them alongsideother slaves, or perhaps even as slaves at all. See Toledano, “Represent-ing the Slave’s Body in Ottoman Society,” p. 57. Davis suggests likewisethat “regardless of law or theory, a slave’s actual status could historicallyvary along a broad spectrum of rights, powers, and protections.”In theImage of God, p. 125.
10. For one discussion, see Diederich, “Indonesians in Saudi Arabia,” pp. 133–6.
11. A number of reports over the past decade from organizations includingAmnesty International and Human Rights Watch have documentedthese abuses.
12. There is significant dispute among human rights activists today as towhat constitutes an acceptable use of the term “slavery.” Miers (“Con-temporary Forms of Slavery,” p. 239) notes that, for some servants, “inpractice their condition is very like that of chattel slaves” although “it isvery different in theory.” Toledano (in “Representing the Slave’s Body”)argues for understanding slavery as a “continuum” and Davis makes asimilar point: “[T]he condition of slavery itself has not always been themost abject form of servitude, and it is not necessarily so today. Somecontract labor, though technically free, is more oppressive than manytypes of conventional bondage.” In the Image of God, p. 123.
13. U.S. Department of State, “Slavery, Abduction and Forced Servitude inSudan;” and iAbolish, “Spotlight on Sudan.”
14. Nazer and Lewis, Slave: My True Story. On the past and contemporarypractice of slavery in the Sudan, see Collins, “Slavery in the Sudan inHistory.” For discussion of the historical practice of enslavement ofMuslims by Muslims in Africa, with attention to racial and ethnic patterns, see Mack, “Women and Slavery in Nineteenth-CenturyHausaland,” esp. pp. 89–90; also Lewis, Race and Slavery in the MiddleEast, pp. 57–9.
15. Algar, Wahabbism: A Critical Essay, p. 57.16. On this topic, see the Feminist Sexual Ethics Project website and the
links collected there: www.brandeis.edu/projects/fse. 17. Sikainga, “Slavery and Muslim Jurisprudence in Morocco,” esp.
pp. 64–6 and p. 70. Lovejoy downplays the significance of Europeanabolitionist pressure, arguing that Europe “reluctantly pursued the fightwhenever compromise proved impossible.” He argues, instead, that
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abolition resulted from the incompatibility of Africa’s absorption intothe modern industrial economy with “a slave-based social forma-tion.”Transformations in Slavery, p. 253. Likewise, Collins notes that inthe Sudan, British colonial officials were largely content to focus theirattention on the slave trade, and overlook the widespread practice ofslavery. “Slavery in the Sudan in History,” p. 80.
18. Lewis, Race and Slavery in the Middle East, pp. 80–81.19. Toledano, Slavery and Abolition, p. 127.20. Toledano, Slavery and Abolition, pp. 122–9 remarks on the Muslim view
of Muslim slavery as humane and, in particular, distinct from chattelslavery as practiced in the American South. On the attention to Muslimsensibilities in Western scholarship on Muslim slavery, see Lewis, Race and Slavery in the Middle East, p. vi (also Toledano, Slavery andAbolition, pp. 138–9 on this remark by Lewis; and Davis, In the Image ofGod, pp. 137–50 for a review of Lewis’ work as a whole). See also Miller,“Muslim Slavery and Slaving: A Bibliography.”
21. Ali, “Money, Sex, and Power,” chapters 1, 4, and 5.22. See, in addition to other verses cited below, Q. 2:178; 16:75; and 30:28.23. Q. 4:92.24. Q. 4:92; 58:3.25. Q. 24:33.26. Q. 2:221; 4:25; 24:32.27. Q. 24:33.28. E.g., Q. 23:5–6; 70:29–30. 29. See Mattson, “A Believing Slave is Better Than an Unbeliever,” pp. 131–41
for discussion of these issues and the suggestion that the Qur’anic versesmay make a distinction between permissible sex with war captives andsex with female slaves obtained in another fashion. On the generalacceptability of sexual access to captured women in the ancientMediterranean world, see Azam, “Sexual Violence in Islamic Law.”
30. Nor can a woman (who cannot have sexual access to her male slave as a“concubine”) marry her own male slave.
31. On marriage to female slaves, see Ali, “Money, Sex, and Power,” espe-cially chapters 2 and 5.
32. In addition to Mattson, “A Believing Slave is Better than an Unbeliever,”see Brockopp, Early Maliki Law, pp. 192–205 on the early developmentof regulations surrounding the umm walad.
33. Bayman, The Secret of Islam, p. 173. Emphasis in original. Note that hemakes a point about the exemplariness of the Prophet, then segues intothe numerical limit of four, but does not address the Prophet’s exemp-tion from that limit.
34. Algosaibi, Revolution in the Sunnah, p. 10.35. The use of the term concubine here, in the English translation of Algo-
saibi’s commentary, makes it seem as though the use of the “prisoners”for sexual purposes was a forgone conclusion. Khan translates thephrase that appears in Algosaibi’s English essay as “captured some con-cubines” as “received captives from among the Arab captives.” There isa similar report in Bukhari’s K. al-Nikah, “Al-‘Azl,” trans. Khan, vol. 7,p. 103. Sahih Muslim contains similar reports in its K. al-Nikah, “Al-‘Azl,” trans. Siddiqi, vol. 1–2, pp. 732–3. Sachedina, “Islam, Pro-creation and the Law”, p. 108, cites this story, as quoted in Musallam,
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Sex and Society in Islam, in a series of hadith, also without any commenton its implications for any matter beyond contraception.
36. Algosaibi, Revolution in the Sunnah, pp. 37–8. 37. Algosaibi, Revolution in the Sunnah, pp. 40–41.38. See one report in Sahih Muslim, K. al-Nikah, “Al-‘Azl,” (trans. Siddiqi,
vol. 1–2, pp. 732–3) and another in the Muwatta’ of Malik ibn Anas (K. al-Talaq), which makes reference to the ransom the captors hopedto receive.
39. Friedmann, Tolerance and Coercion in Islam, p. 177 (writing on a differ-ent matter). This did not always go unrecognized by earlier jurists.
40. The exception the jurists sometimes made for those too young to men-struate implies, of course, the permissibility of having sex with them.
41. See, for example, p. 529, from the section on marriage, which containsseveral untranslated passages.
42. Keller, Reliance of the Traveller, ix. 43. Keller, Reliance of the Traveller, p. 459.44. Ibn Baz, “Concerning Polygyny,” in Ibn Baz et al., Islamic Fatawa
Regarding Women, p. 178. He is responding to a questioner who par-tially quotes Q. 4:3, mentioning orphans but avoiding the portion of theverse discussing “what your right hands possess.” On the interconnec-tions between polygamy and slavery, see Hasan, “Polygamy, Slavery,and Qur’anic Sexual Ethics.”
45. Rahman, Major Themes of the Qur’an, p. 48; see also Mashhour,“Islamic Law and Gender Equality,” pp. 568–9.
46. See, for instance, Khadduri, “Marriage in Islamic Law;” al-Hibri, “Islam,Law and Custom,” p. 26; and Mashhour, “Islamic Law and Gender Equal-ity,” p. 569. The latter argues that “what is definitely clear in the Quran isthat all its texts encourage the release of slaves.” Wadud expressed a simi-lar view in Qur’an and Woman, p. 101, but makes a different and, I think,more persuasive argument in her later essay “Alternative Qur’anic Interpretation and the Status of Muslim Women,” pp. 14–15.
47. Syed, The Position of Women in Islam, pp. 33–6; Syed states (p. 36) that“those jurists of Islamic law who laid down the rule that a master mayhave sexual relationship [sic] with his female slave without marriage aretotally mistaken.”
48. Mernissi, The Veil and the Male Elite, esp. p. 139; Khadduri, “Marriagein Islamic Law,” p. 217, makes the same point a decade earlier, regard-ing polygamy specifically. He argues that “Because he was a religiousreformer who was principally interested in preaching a belief in one God – a revolutionary belief principle in pagan society – the ProphetMuhammad did not go so far as to seek a complete change in the socialsystem. The Prophet felt that advocating radical change might adverselyaffect the spread of his religious teachings; therefore, he sought to effectgradual change in the law.” See also Wadud, Qur’an and Woman, p. 9.
49. If God is all-powerful, why did God not create a better, more just world?If this is not the best world, then God is an oppressor (muzlim) – need-less to say, a problematic view. If it is the best world, however, then itcannot be unjust (if God is just). For a more thorough exploration ofthese issues as they were engaged by Muslim theologians and jurists, seeOrmsby, Theodicy in Islamic Thought and Khadduri, The Islamic Conception of Justice, pp. 39–77.
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50. This view, linked to Hasan al-Basri (Khadduri, The Islamic Conception ofJustice, pp. 41, 108) both reflects a repeated Qur’anic sentiment (seechapter 7) and exists in tension with views about God’s omnipotence,again raising the question of why God allows zulm to exist in the firstplace, and whether doing so makes God unjust.
51. Khadduri, The Islamic Conception of Justice, p. 106.
Notes to Chapter 4
1. Nomani, Standing Alone in Mecca, p. 295.2. See, e.g., Q. 23:5–6. The Qur’an describes zina as “lewdness ( fahisha)
and an evil way,” and prohibits believers from even approaching it (Q. 17:32); in Q. 33:35, parallel praises are given of Muslim men andwomen who embody a range of virtuous behaviors including chastity.
3. The lowest age seems to be that of nine for girls (and fourteen for boys)in post-revolutionary Iran. On nine as the age of majority for females,see chapter 8.
4. Archard, Sexual Consent, p. 1.5. A variety of historical and anthropological studies demonstrate that
“the norms were not always followed.” However, as one ethnographernotes for Morocco, “deviation from norms was more limited in thepast;” further, “there has recently been some change in the norms them-selves” regarding conduct. David, “Changing Gender Relations in aMoroccan Town,” p. 210. For a succinct assessment of the contemporaryMoroccan situation, see Dialmy, “Moroccan Youth, Sex and Islam.”
6. Nikah, the term used by the jurists for the marriage contract, literallyrefers to sexual intercourse, so closely is marriage linked to sex. Thetreatment of this term in a passage from Haskafi’s Durr-ul-Mukhtar(pp. 2–3) reflects this ambiguity: according to the Hanafi view cited, insome instances the Qur’an refers to marriage when it uses nikah; in others, it refers to any sexual intercourse.
7. From a punishment perspective the “who” is generally more importantthan the “what” – a disapproved act such as anal intercourse or sex witha menstruant who is a lawful partner is much less serious than anapproved act with a forbidden partner.
8. Sahih Muslim, K. al-Nikah, “He who sees a woman, and his heart isaffected, should come to his wife, and should have intercourse withher,” trans. Siddiqi, vol. 1–2, pp. 704–5. One account includes, in hissubsequent advice to his Companions, the Prophet’s declaration that“The woman advances and retires in the shape of a devil.”
9. Translated as “The first look is yours but the second is to your loss,” inMutahari, “The Islamic Modest Dress,” where it is cited to al-Hurr al-Amili, Wasa’il al-Shi‘ah (no further publication data provided). Seealso “Prophet Muhammad (s.a.w) said, ‘… do not let a second look follow the first. The first look is allowed to you but not the second.’[Ahmad, Abu Dawood, at-Tirmidhi]” Quoted in Islam for Today’s article “The Girlfriend-Boyfriend Relationship.”
10. For discussion of Greek and Roman attitudes toward male/male sex, see chapter 5.
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11. Yalom, A History of the Wife, p. 22, continues: “Although heterosexualmarriage was the only legally recognized form of couplehood in ancientGreece, husbands were by no means restricted to sexual relations with their wives. They could find supplemental sex beyond the marriage bed with concubines, male and female slaves, male and female prostitutes, and male and female lovers.” (See Dover, “ClassicalGreek Attitudes to Sexual Behavior,” p. 22, for a slightly broader defin-ition of moikheia, including seduction of other free women under a male relation’s guardianship.) Yalom notes that “Wives, on the otherhand, were segregated from men other than their husbands, andseverely punished if caught with a lover.” (p. 23) Yalom does not specifically address the possibility of married women taking femalelovers or making sexual use of their female slaves. See Skinner, Sexuality in Greek and Roman Cultures, pp. 139–40, on an Athenianadultery case.
12. Treggiari, Roman Marriage, pp. 312–3. Notably, Treggiari attributes thelater European double-standard in sexual matters to the influence ofIslam, not Rome. Yalom (A History of the Wife, pp. 31 ff.) also addressesthe issue of adulterous wives in Rome. Skinner (Sexuality in Greek andRoman Cultures, pp. 206–7) uses the term adultery to describe non-marital sex by or with a married woman without interrogating the presuppositions of her definition.
13. Yalom summarizes: “[T]he ancient Hebrew law proscribing adulteryapplied exclusively to women, requiring them to limit their sexual activ-ity to only one man. There was no such requirement for married men,who were allowed to have sex with unattached women. … Men commit-ted adultery if they had sex with another man’s wife.” Yalom, “BiblicalModels,” p. 23. See also Davies, The Dissenting Reader, p. 3.
14. Q. 24:2, used in this chapter’s epigraph, for the number of lashes; see Q. 4:25 for enslaved women who commit “lewdness.”
15. See discussion of the word ihsan as it relates to the permissibility of mar-rying enslaved women from ahl al-kitab in chapter 1, n. 46. Note againhere the ambiguity in the term muhsan as it relates to the hadd penalty:it refers to both freedom and marital status.
16. See Deuteronomy 22:21–7. Stoning is mentioned numerous times elsewhere in the Hebrew bible for a variety of non-sexual offenses (e.g., Leviticus 20:2 and 20:27).
17. Q. 24:4.18. In one tradition reported on the authority of Abu Huraira, the Prophet
discourages the man from persisting with his confession of zina by turn-ing his head repeatedly, until the man confessed four times, equaling thetestimony of four witnesses. Abu Huraira is the prime reporter of severaltraditions denigrating toward women discussed in chapter 1. SahihBukhari (K. al-Nikah, “A divorce given in a state of anger, under com-pulsion, drunkenness, or insanity,” trans. Khan, vol. 7, pp. 147–8)reports the event on the authority of another witness as well. A similaraccount appears in Sahih Muslim.
19. Tirmidhi, as quoted and translated by Rizvi in “Adultery and Fornica-tion in Islamic Jurisprudence,” pp. 271–2.
20. The theoretical writings of the jurists were not always followed in prac-tice; courts were more willing to entertain claims regarding zina and
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individuals concerned with family honor occasionally acted extrajudi-cially when confronted with suspicious behavior. According to LesliePeirce, in her study of the Ottoman court of Aintab, “The law of thejurists did not seriously envision active prosecution of illicit sex; rather,it was concerned with maintaining social harmony in the face of whatwas tacitly acknowledged as the inevitability of zina.”See Peirce, Moral-ity Tales: Law and Gender in the Ottoman Court of Aintab, for interestingdiscussions about how charges of sexual misconduct might play out inpractice. The quote is from p. 354. She goes on to note, though, thatthough it might not be expected, based on the doctrines of the jurists,“Deliberation about zina in court was possible because in practicejudges were able to relax the stringent rules of witness set out in juridicaltreatises and manuals, admitting circumstantial and hearsay evidence.”(p. 355)
21. Q. 24:6–9.22. Additionally, whether consummation has validly occurred is important
in determining when a woman who needs to consummate another mar-riage before she can remarry a man who repudiated her three times, has“tasted the sweetness of intercourse.” Occasionally, other issues arisesuch as whether a woman who has illicit intercourse is counted a virginor thayyib (non-virgin, previously married) for the sake of determiningher consent to a subsequent marriage.
23. This approach is not limited to premodern texts. Kamal, Everyday Fiqh,vol. 1, pp. 79–80, discusses the necessity of ablution after sex with malesof any age and minor girls. The only concession to concerns about law-fulness comes in a footnote: “One should bear in mind that Islam forbids the males to insert the organ into any part of anybody except inthe genital part of the wife.” (p. 79)
24. Sahih Bukhari, K. al-Fara’id, “The child belongs to the owner of thebed,” trans. Khan, vol. 8, pp. 489–90; Sahih Muslim, K. al-Nikah, “Thechild belongs to the bed and one must avoid suspicion” (my modifica-tion of Siddiqi’s translation), trans. Siddiqi, vol. 1–2, pp. 744–5. See alsoRubin, “‘Al-walad li-l-firash’;” and Van Gelder, Close Relationships, p. 91,who cites this story as it appears in al-Razi.
25. Legal fictions also have limits; the story appears in Ibn Hanbal’sresponsa (see Spectorsky, ed. and trans.) Chapters on Marriage andDivorce, p. 102 in a context where it serves as an argument for individu-als to act in accordance with the actual, not “legal,” status of things.There, it refers to whether a father can marry the daughter born of anillicit union with a woman. While some – al-Shafi‘i is known to hold thisview – hold that there is no legal relationship between the man and hisbiological daughter that would prohibit such a union, Ibn Hanbalbriefly alludes to the case of Sawda discussed above. See Van Gelder’ssummary of this debate in Close Relationships, pp. 90 ff.
26. The opposition to the test from some contemporary Egyptian juristsstems from precisely this distinction. On the relationship between“pater” and “genitor” in pre-Islamic Arab custom, see Van Gelder, CloseRelationships, pp. 19–20. He makes the point that in “traditional Islam”“biological parenthood” took on a greater importance than “dominanceand possession” which were key components of paternity. However, thecontinuing importance of the dictum that “the child belongs to the bed”
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suggests that he may be overstating the relevance of biology.27. Of course, there is still the social issue of imputations surrounding
honor.28. Moosa, “The Child Belongs to the Bed,” on illegitimacy in South Africa,
p. 174. 29. Nomani, Standing Alone in Mecca, p. 295. This “Bill of Rights” was
republished (pp. 155–6) along with an essay by Nomani, “Being theLeader I Want to See,” in Abdul-Ghafur, Living Islam Out Loud. For themosque Bill of Rights, see Standing Alone in Mecca, p. 293 and “Beingthe Leader I Want to See,” pp. 153–4.
30. See chapter 6 for discussion of another example where a self-identifiedreligious authority makes a declaration that ignores the dominantstance of all Sunni madhahib even as it echoes majority Muslim sentiment.
31. Coulson makes the point that the Islamic “law concerning sexual behav-ior is based upon an entirely different, almost diametrically opposite,approach” to that adopted by “most Western legal systems” which donot concern themselves “with sexual relations between consentingadults in private.” (“Regulation of Sexual Behavior under TraditionalIslamic Law,” p. 64) Leaving aside the question of whether Coulson’scharacterization of “most Western legal systems” is accurate, he is cer-tainly correct with regard to the theory: consensual relationships are amatter of divine regulation, though if they do not come to anyone’sattention, they are not a matter for government intervention.
32. AmericanMuslim, in “Comments: The Fatima Incident,” commentspage to Mohja Kahf, “Sex and the Umma: The Fatima Incident,” athttp://www.muslimwakeup.com/sex/archives/ 2004/11/the_fatima_inci_1.php#more, last accessed 04.19.06.
33. On these categories and their use, see Abou El Fadl, Speaking in God’sName, p. 97.
34. Of course begging the question of how they were expected to applyacross the board even in previous centuries.
35. Peirce, Morality Tales, p. 353.36. Michael Cook addresses this problem, along with a number of related
issues, in Forbidding Wrong in Islam.37. And in any case, “legal coercion is a flawed instrument for securing
moral persuasion.” Sanneh, “Shari’ah Sanctions and State Enforce-ment,” p. 161. Unlike Ramadan, who acknowledges discrimination inthe application of hadd punishments, Sanneh ignores women’s vulner-ability and the disparities in punishment. These are highlighted bySidahmed, “Problems in Contemporary Applications of Islamic Crim-inal Sanctions.”
Notes to Chapter 5
1. Keller, Reliance of the Traveller, p. 986. This translation is mine, based onKeller’s presentation of the Arabic text, and differs in several aspectsfrom Keller’s English rendering. For Keller’s biographical sketch of IbnHajar, see p. 1054.
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2. On the genre, see Rowson, “The Categorization of Gender and SexualIrregularity in Medieval Arabic Vice Lists.”
3. Al-Dhahabi, Al-Kaba’ir; for biographical information on al-Dhahabi,see al-Kaba’ir, pp. 9–14 and Keller, Reliance of the Traveller, p. 1045.Discussion of enormities occurs in mainstream modern circles as well.
4. Al-Dhahabi, pp. 60–70.5. Al-Dhahabi, pp. 105–6. On qadhf, and the Qur’anic connection to zina,
see chapter 4.6. Al-Dhahabi, pp. 155–6.7. Al-Dhahabi, pp. 157–9. A muhallil is a man who agrees to marry a
woman then divorce her after consummation in order to make it pos-sible for her to remarry a husband who has divorced her absolutely.
8. Al-Dhahabi, Al-Kaba’ir, pp. 201–9. On nushuz more generally, see chapter 7 and works cited there.
9. Keller’s note, Keller, Reliance of the Traveller, p. 990. See Keller, p. 1033,for a biographical sketch of Abu Talib Makki.
10. Keller, Reliance of the Traveller, p. 991. My translation.11. Keller, Reliance of the Traveller, p. 991. My translation. Keller translates
as “Two are of the genitals: (12) adultery; (13) and sodomy.” 12. Keller, Reliance of the Traveller, p. 966.13. Keller, Reliance of the Traveller, p. 986; my translation here differs from
that in the epigraph by leaving zina and liwat untranslated.14. Ibn Hajar specifically condemns a man having sex with his wife’s corpse,
making clear that it is the act of intercourse with a dead body that con-stitutes an enormity. If the text referred to any woman’s corpse, onemight mistakenly attribute the prohibition of intercourse to the lack ofthe legal tie between the parties required for any touching, let alone sex,to be licit. Of course the deceased wife is no longer really a person, andso the marriage does not actually exist after her death, but most juristsgrant a man the dispensation to see and touch his dead wife’s body inorder to wash her corpse. If intercourse with the wife’s corpse is forbid-den, though touching her for purposes of final ablution is permitted,intercourse with another woman’s corpse is even more strongly forbid-den, given that an unrelated man may not touch a woman even to per-form the pre-burial washing.
15. I use “same-sex” as a neutrally descriptive term, sidestepping importantcontroversies over the appropriateness of terms such as lesbian, gay,homosexual, and queer that are largely beyond the scope of this essay.Recently, some have advocated use of the Arabic phrase al-mithliyya al-jinsiyya (“homosexuality” in its literal sense of sexual sameness),while others have suggested that shudhudh jinsi (sexual queerness) is auseful phrase. In any case, I will use the term “sex” to denote the cate-gories male and female, while recognizing that there is a debate overwhether the use of sex to denote biology and gender to denote sociallyand culturally determined aspects of behavior takes account of the con-structed nature of seemingly natural “sex.” On this, see the discussion ofhermaphrodites and sex-change operations, below.
16. See, e.g., Dunne, “Power and Sexuality in the Middle East.” On the attribution of “deviant” behavior to the Other, and particularly theattribution of deviant sexual practices to Muslims by Westerners, seeUebel, “Re-Orienting Desire.” “The vice of sodomy,” according to
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Crusader literature of the time, was “not only tolerated in Muslim society, but actively encouraged and openly practiced.” (p. 241)Although Uebel does not ask this question, it occurs to me to wonder inwhat ways the current scholarship positing a “homosexual-friendly”Islamic past draws on, and contributes to, the same type of generaliza-tions.
17. Duran, “Homosexuality and Islam,” p. 183. Even more recently, noneof the twenty-one chapters in Thumma and Gray’s Gay Religiondiscusses Muslims, and the only mention of Islam is in passing in a foot-note (p. 6, n. 1). The founding of several organizations in the 1990s andthe first years of the twenty-first century (al-Fatiha, the Yoesuf Founda-tion, Queer Jihad) by Muslims living in the West both signaled and furthered a shift in the discussion. The emergence of the Internet as avital educational and organizational resource has contributed to theincreased social and intellectual presence of gay and lesbian (and, to afar lesser extent, bisexual and transgendered) Muslim individuals andgroups. Most likely, if research on a similar volume were to begin today,at least one organization would be mentioned.
18. Kugle, “Sexuality, Diversity, and Ethics,” p. 198. Of course, as Kuglegoes on to argue, homosexuality is an anachronistic term.
19. Kugle, “Sexuality, Diversity, and Ethics,” pp. 197–8. 20. Malti-Douglas, “Tribadism/Lesbianism,” p. 124. This begs the question
of who gets to be a “man” – how maleness and masculinity were constructed is a crucial issue. See also Rowson, “Gender Irregularity asEntertainment.”
21. Al-Rouhayeb, Before Homosexuality in the Arab-Islamic World,1500–1800.
22. The term sihaq is sometimes considered to be derogatory, as liwatclearly is. Neutral descriptive terminology adopted by some contempo-rary Arab activists includes masculine and feminine variants of “homo-sexual.” Helem, “Fihrist al-‘ibarat al-‘arabiyya.” Thanks to ArielBerman for sharing the magazine reference with me.
23. On mundane consequences of even illicit sex, see chapter 4. However,marital prohibitions could be engendered, in some views, by sexualtouching falling far short of intercourse; in such a case, the same rulescould apply to same-sex contact between women, making their omis-sion notable.
24. And this, of course, returns us to the question of how to define what is“Islamic” – discussed in chapter 6.
25. My modification of Abdullah Yusuf Ali’s translation. On this matter, seeMalti-Douglas, “Tribadism/Lesbianism,” p. 123.
26. One may also infer that the verse addresses two men if one accepts thatit addresses an exclusively male audience; Q. 4:16’s “from among you”could theoretically be inclusive of women, but it stands in contrast to Q. 4:15’s “from among your women.”
27. Duran, “Homosexuality in Islam,” p. 181.28. Kugle, “Sexuality, Diversity, and Ethics,” p. 219. See also Hidayatullah,
“Islamic Conceptions of Sexuality,” pp. 277–9.29. Jamal, “The Story of Lot.”30. Kugle, “Sexuality, Diversity, and Ethics,” p. 204.31. See, for example, the website of a South African organization called
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“The Inner Circle.” http://www.theinnercircle-za.org/index_files/page0002.htm, last accessed 06.27.05.
32. Biblical comparisons might be fruitful, both with reference to the storyof Lot and also the parallel story of the Levite’s concubine in Judges,chapters 19–21. I was made aware of this latter parallel through Azam,“Sexual Violence in Islamic Law.”
33. Kugle, “Sexuality, Diversity, and Ethics,” p. 215. See also p. 224.34. Q. 23:165–6.35. Halperin, How to do the History of Homosexuality, p. 41; italics in ori-
ginal.36. What Martha Nussbaum and Juha Sivola argue for the Greeks holds just
as true for medieval Muslims: “Seeing that it was possible for the Greeksto think differently of things that many moderns have regarded as nat-ural or even necessary helps us to remove the false sense of inevitabilityof our own judgments and practices.” Nussbaum and Sivola, “Intro-duction,” in idem, eds., The Sleep of Reason, p. 10.
37. See, e.g., Dover, Greek Homosexuality. As David Halperin has argued,with respect to the ancient Greeks, “The physical act of sex itself presup-posed and demanded … the assumption by the respective sexual partners of different and asymmetrical sexual roles (the roles of pene-trator and penetrated), and those roles in turn were associated withsocial distinctions of power and gender – differences between dom-inance and submission as well as between masculinity and femininity.”Halperin, How to do the History of Homosexuality, p. 147. See alsoBrooten, Love Between Women, p. 2, for the remark that “Roman-periodwriters presented as normative those sexual relations that represent ahuman social hierarchy. They saw every sexual pairing as including oneactive and one passive partner, regardless of gender, although culturallythey correlated gender with these categories.” Quoted in Halperin, p. 56.See also Walters, “Invading the Roman Body,” esp. p. 31; Dover, “Clas-sical Greek Attitudes to Sexual Behavior;” and, on Muslim discussionsof male desire to be penetrated, Rowson, “Gender Irregularity,” p. 53;and Rosenthal, on ubnah, “passive male homosexuality,” (p. 45) in “Ar-Razi on the Hidden Illness.”
38. Published as “The Pleasures of Girls and Boys Compared,” in Colville,trans., Sobriety and Mirth, pp. 202–30. This essay also appears as “Boast-ing Match over Maids and Youths,” in Nine Essays of al-Jahiz, trans.Hutchins, pp. 140–66. See also, in the same volume, “The Superiority ofthe Belly over the Back,” pp. 167–73. Hutchins’ translation should beused with caution; see A.F.L. Beeston’s detailed review in the Journal ofArabic Literature, pp. 200–9. On the genre, see also Rosenthal, “Maleand Female: Described and Compared.”
39. See Rowson, “Gender Irregularity,” p. 60 and, for comparison, Dover,“Classical Greek Attitudes to Sexual Behavior,” p. 25. The differencebetween the two settings is not the naturalness of men’s attraction toyounger males but the illicitness of this desire in a Muslim context.
40. Keller, Reliance of the Traveller, p. 512. See also Maghen, Virtues of theFlesh, p. 261 on ablution after touching boys.
41. Boudhiba, Sexuality in Islam, p. 200.42. Murray, “Woman-Woman Love in Islamic Societies,” p. 102.43. Debra Mubashshir Majeed, who describes herself as a “recovering
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homophobe,” writes insightfully on certain parallels between same-sexmarriage and polygamy in “The Battle Has Been Joined.” Like otherswho write on this topic, Majeed drafts her categories in such a way as toassume the question of gay marriage does not apply to Muslims.
44. Muslim Canadian Congress press release, “Human Rights for Minor-ities not up for Bargain: Muslim Canadian Congress endorses Same-SexMarriage legislation.”
45. See, for a brief personal account, Saed, “On the Edge of Belonging.”46. Muslim Women’s League, “An Islamic Perspective on Sexuality.” 47. As Kugle puts it, “[C]ontemporary Muslim moralists are not insulated
from modernity, even as they depict gay and lesbian Muslims as cor-rupted by modernity.” Kugle, Sexuality, Diversity, and Ethics, pp. 197–8.
48. Murad, “Fall of the Family.”49. Rather, a desire that arises in relation to an unlawful source should be
channeled in a lawful direction, as reflected in the Prophet’s counsel thata man who is aroused by a woman he sees should go home and have sexwith his wife.
50. Rainbow Crescent, “Consider the Following: Logic and Reason.” Capitalization in original.
51. Jakobsen and Pellegrini, Love the Sin, use the phrase “born that way” todescribe the essentialist position on sexual orientation and identity. Ichoose “just created that way” to emphasize the external, divine inten-tionality of the creation of a human being with a particular set of desires.
52. “One effect of (mis)understanding the history of sexuality as a history ofthe discourses of sexuality has been to preserve the notion of sexuality asa timeless and ahistorical dimension of human experience, while pre-serving a notion of discourse as a neutral medium of representation. Asecond effect has been to draw a deceptively simple and very old-fashioned division between representations, conceived as socially specificand historically variable products of human culture, and realities (sexual desire, in this case, or human nature), conceived as somethingstatic and unchanging. Foucault, I argue, was up to something muchmore novel, a radically holistic approach that was designed to avoidsuch hoary metaphysical binarisms. His aim was to foreground the his-toricity of desire itself and of human beings as subjects of desire.”Halperin, How to do the History of Homosexuality, p. 9.
53. Weeks, Invented Moralities, pp. 98–9. See, for a brief survey of modernAmerican views as to whether same-sex or same-gender desire is innateor chosen, the essays by Jeannine Gramick and Robert Gordis, alongwith associated materials, under the heading “Are Homosexual andBisexual Relations Natural and Normal?”
54. Jeffrey Weeks, “The Rights and Wrongs of Sexuality,” p. 21.55. Hidayatullah, “Islamic Conceptions of Sexuality,” p. 279 points out that
“the notion that Islam tolerates homosexual tendencies but not behav-iors points to an inconsistency in Islamic allowances for the satiation of‘natural’ sexual desire.”
56. On the “macrocosmic” dimensions of sex, gender, and marriage, seeMurata, The Tao of Islam, pp. 143–202.
57. Of course, I do not mean to imply that promiscuity is in any way char-acteristic of same-sex sexual activity; I am merely making the point forcontrast.
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58. Abdul-Ra’uf, The Islamic View of Women and the Family, p. 35. Quotedin Smith, “Women in Islam,” p. 532, n. 14. Abdul-Ra’uf elaborates onthe “inherently indisputable evil and filth of homosexuality for its ownsake” in his Marriage in Islam: A Manual, pp. 71–2.
59. Notably, even sources that discuss non-consensual crimes such as rapeseem to be virtually silent about “incest in the normal English sense,whereas the ‘milk-incest’ peculiar to Islam is a recurrent preoccupa-tion.” Van Gelder, Close Relationships, p. 83.
60. That is, women who are too closely related to be potential marriagepartners.
61. Haskafi, The Durr-ul-Mukhtar, trans. Dayal, pp. 1–2. In the style ofmany commentaries, the words of the commented-upon text are incorporated into the commentary. Dayal keeps them distinct throughthe use of bold-faced type, but I have not retained that feature here, considering it an unnecessary distraction.
62. Music, Queer Visions of Islam, p. 4. While I agree with Music on thispoint, I am not convinced of the prospects for success of his “search for queer-affirmative Qur’anic messages that have been hidden by centuries of biased interpretations.” (p. 5) Rather, I think this topic isanalogous in an important way to that of male privilege and patriarchyin the Qur’an. One cannot simply blame everything on bad interpret-ation. See chapter 7. On hermaphrodites, see Sanders, “Gendering theUngendered Body;” and Cilardo, “Historical Development of the LegalDoctrine.”
63. On this point, see Najmabadi, “Truth of Sex.” The article’s summaryreads: “While trans-sexuality in Iran is made legitimate, homosexualityis insistently reiterated as abnormal.”
64. Skovgaard-Petersen, Defining Islam for the Egyptian State, pp. 319–34;Harrison, “Iran’s Sex Change Operations.” See Najmabadi, “Truth ofSex,” for a cogent critique of this celebratory discourse. See also Music,Queer Visions, p. 10.
65. Skovgaard-Petersen, Defining Islam, p. 334. Dupret summarizes thiscase, presents further developments, and considers its implications in“Sexual Morality at the Egyptian Bar.”
66. Skovgaard-Petersen, Defining Islam, p. 321.67. Skovgaard-Petersen, Defining Islam, p. 326.68. In a marriage between two males, would each spouse retain the right to
marry three additional husbands? Imagine the chaos that would result ifHusband A and Husband B each independently married Husband C. Presumably, in a lesbian marriage, both women would have toremain monogamous – but if pregnancy is not a possibility, and therewould be no need for determinations as to paternity, then what wouldbe the rationale for female monogamy? I raise these questions not to beflippant or absurd, but because thoroughly working through theirimplications can give insights not only about same-sex intimacy but alsoabout expectations in male/female marriage.
69. Kugle wonders eloquently about this at the same time he assumes that itgoes without saying that consent is vital for good (in the sense of ethical,divinely approved) intimate relationships.
70. Schmitt, “Liwat im fiqh.”71. BBC News, “Saudi sets sights on 60th bride.”
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Notes to Chapter 6
1. McLoughlin, “Swedish Imam says Islam forbids female circumcision.” 2. This translation is mine, from the Arabic text included in Keller,
Reliance of the Traveller, p. 59. I will discuss Keller’s translation, whichdiffers in substantial respects, below.
3. I agree with Mahmood that “any social and political transformation isalways a function of local, contingent, and emplaced struggles whoseblueprint cannot be worked out or predicted in advance. And whensuch an agenda of reform is imposed from above or outside, it is typ-ically a violent imposition whose results are likely to be far worse thananything it seeks to displace.” Mahmood, Politics of Piety, p. 36. Mahmood is not writing about FGC here, but her remarks apply.
4. Historian Jonathan Berkey has suggested that rather than focus on theseemingly endless “polemical debate as to whether female excision is oris not ‘Islamic’,” one can analyze the ways in which various actorsunderstand the practice “within the broader Islamic framework.”Berkey, “Circumcision Circumscribed,” pp. 20–21. The polemicaldebate is relevant, though, to the questions about religious authorityand authoritarianism that I raise in this chapter.
5. Kassamali, “When Modernity Confronts Traditional Practices,” p. 40.For her explanation as to why she prefers “female genital cutting” toother terms, see n. 1, p. 58.
6. Brooks, Nine Parts of Desire, pp. 53–4, has criticized Muslims who “turntheir wrath on the commentators criticizing the practices [of clitoridec-tomy and honor killings], and not on the crimes themselves. The Progressive Muslims volume edited by Omid Safi reflects a determin-ation not to be silenced by the thought of giving ammunition to whatMuzammil Siddiqi refers to as “the enemies of Islam” (see chapter 8, n. 24). See also miriam cooke’s concept of “multiple critique,” inWomen Claim Islam.
7. Kassamali, “When Modernity Confronts Traditional Practices,” p. 42.8. However, among African Christians, Protestants seem to be more
opposed to the practice than Catholics, Orthodox, or Copts. Salecl, “Cutin the Body,” p. 35, n. 2, notes that “The Catholic Church never officiallydistanced itself from clitoridectomy; the missionaries, in Africa, forexample, did not condemn this practice. Only the Anglican Church, inthe 1920s, denounced this ritual and advised its missionaries to preventit.” See also Gollaher, Circumcision, p. 196–7.
9. See Berkey, “Circumcision Circumscribed,” pp. 21–2, for a discussionof pre-Islamic Egyptian practices.
10. According to Toubia, “The transmission route of FGM helps to clarifyit as a nonreligious practice. When Islam entered Asian countries fromArabia to Iran, it did not carry FGM with it, but when it was imported toAsia through Nile Valley cultures, FGM was part of it. This was the casewith the Daudi Bohra of India, whose religious beliefs are derived froman Egyptian-based sect of Islam.” (Toubia, Female Genital Mutilation, p. 32.) Toubia does not discuss Southeast Asian Muslim practices.
11. See, for instance, Little, “Female Genital Mutilation: Medical and Cul-tural Considerations,” pp. 30–34.
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12. U.S. Department of State, “Indonesia: Report on Female Genital Muti-lation (FGM) or Female Genital Cutting (FGC).” The medicalization ofthe procedure – promoted in some African nations as an ameliorativemeasure – seems to be leading in Southeast Asia to actual “cutting” ofsome type, as sharp implements such as scissors are used. Moore andRompies, “In the Cut.”
13. “Claiming Our Bodies and Ou[r] Rights: Exploring Female Circumci-sion as an Act of Violence,” quoted in Toubia, Female Genital Mutilation, p. 30.
14. Toubia, Female Genital Mutilation, p. 31. More recent Western scholar-ship tends to repeat this dismissal of any relationship between Islam andFGC. For example, one recent introductory text declares “Female cir-cumcision is neither an Islamic practice nor is it widespread amongMuslims. Rather, it appears to be an African tradition that remains inpractice in countries like the Sudan and Egypt, among Muslims andnon-Muslims alike.” Esposito, What Everyone Needs to Know aboutIslam, p. 102.
15. Berkey discusses the Shi‘a on p. 26. For one example of a matter-of-factreference to female circumcision in another context, see Ruxton, MalikiLaw, p. 155.
16. Berkey, “Circumcision Circumscribed,” p. 25.17. On al-Ghazali, see Roald, Women in Islam, p. 241, and chapter 11,
“Female Circumcision,” pp. 237–53 more broadly; see also her brief dis-cussion in the conclusion, p. 299.
18. Toubia, Female Genital Mutilation, p. 43.19. Abou El Fadl, Speaking in God’s Name, pp. 144–5; 62–3.20. Even Shaikh Muhammad al-Tantawi of Al-Azhar, who has opposed
female circumcision, makes this point. The Qur’an itself does not sayanything about circumcision, of males or females. However, it is uni-versally acknowledged that male circumcision is an Islamic custom –virtually all Muslim males are circumcised – and it is attributed to thecovenant between God and Abraham. According to Gollaher, “when aretired Libyan judge, Mustafa Kamal al-Mahdawi, published a bookthat questioned the legitimacy of the ritual [of male circumcision], hecame under furious attacks from the clergy and the press.” A swiftresponse from a prominent Saudi cleric accused him of apostasy forrejecting the consensus view that circumcision of males was obligatory.Circumcision, pp. 51–2. See also Abu-Sahlieh, “Jehovah, His CousinAllah, and Sexual Mutilations,” p. 47. Gollaher bases his discussion ofthis case on Abu-Sahlieh’s “To Mutilate in the Name of Jehovah orAllah.” See also Barlas, “Believing Women” in Islam, p. 65.
21. Berkey, “Circumcision Circumscribed,” p. 30: “[T]he few medievalsources which discuss female excision in any detail routinely direct theirprimary attention to the question of sexuality, and in particularwomen’s sexuality and its control.”
22. Kassamali, “When Modernity Confronts Traditional Practices,” claimsthat Qur’an 4:1 grants Muslim women “the right to sexual satisfactionwithin the context of a marriage” as well as the right “to initiate sexualintercourse.” (This famous verse recounting the creation of humanitydoes not actually mention sex at all, except in its reference to the creation of “many men and women” from the original pair.)
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23. Muslim Women’s League, “An Islamic Perspective on Sexuality.” Seealso Abusharaf, “Virtuous Cuts,” on women’s sexual responsivenessafter excision and/or infibulation.
24. El-Saadawi, The Hidden Face of Eve, p. 42, quoted Abu-Sahlieh, “Jeho-vah, His Cousin Allah, and Sexual Mutilations,” p. 46.
25. Abu-Sahlieh (“To Mutilate in the Name of Jehovah or Allah”) hasargued that “Juridical logic cannot acknowledge the distinctionbetween male and female circumcision, both being the mutilation ofhealthy organs and consequently damaging the physical integrity of thechild, whatever the religious motivations lying underneath.”
26. Abu-Sahlieh, “Jehovah, His Cousin Allah, and Sexual Mutilations,” p. 54.
27. In his discussion of “female genital mutilation” and male circumcisionunder United States law, James McBride suggests that differential treat-ment “may be required for equal protection of men and women,” posing one potential strategy for avoiding the problems with attemptsto treat the practices in the same way. McBride, “ ‘To Make Martyrs ofTheir Children’,” p. 235.
28. Trans. by Ahmad Hasan, as quoted in Ahmad, “Female Genital Mutila-tion.” See Sunan Abi Dawud, K. al-Adab, “Ma ja’a fi’l-khitan,” vol. 2, p. 657.
29. Roald, Women in Islam, p. 247.30. Hoyland, Arabia and the Arabs, p. 129. Circumcising women appears
alongside the eating of locusts as matters where tribes could differ.31. Gollaher, Circumcision, p. 192; Abu-Sahlieh (“Jehovah, His Cousin
Allah, and Sexual Mutilations,” p. 48) extends the same criticism tohadith regarding male circumcision.
32. Ahmad, “Female Genital Mutilation.”33. Badawi, “The Issue of Female Circumcision,” appendix to Gender
Equity in Islam. In his footnote to this hadith, Badawi cites “Al-Tabarani,quoted in Al-Albani, Muhammad N., Silsilat Al-Ahadeeth Al-Sahihah,A1 Maktab Al-Islami, Beirut, Lebanon, 1983, vol. 2, Hadeeth no. 722,pp. 353–8 especially pp. 356–7” and also refers to Keller’s translation ofReliance of the Traveller.
34. Lane’s entry for “bazr” (Arabic-English Lexicon, Book 1, Part 1, p. 222provides some material suggesting the term might have been under-stood to refer to the prepuce, but the preponderance of his material suggests it means clitoris. See also Faruqi, Faruqi’s Law Dictionary, p. 76(where he also gives two Arabic equivalents for “glans clitoris”: tarafand tarth); and Berkey, “Circumcision Circumscribed,” p. 28. Roald,Women in Islam, p. 243 briefly discusses Keller’s translation.
35. See Berkey, “Circumcision Circumscribed,” p. 28.36. Kassamali, “When Modernity Confronts Traditional Practices,” p. 51.37. Abusharaf, “Virtuous Cuts.” See also her forthcoming edited volume
Female Circumcision: Multicultural Perspectives.38. Kassamali, “When Modernity Confronts Traditional Practices,” p. 54,
suggests that FGC should “be presented as a violation of the right to goodhealth,” with particular emphasis on the consequences of infertility.
39. Abu-Sahlieh, “Jehovah, His Cousin Allah, and Sexual Mutilations,”summarizes these debates on pp. 49–50.
40. Ahmad, “Female Genital Mutilation.”
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Notes to Chapter 7
1. This translation is by ‘Abdullah Yusuf Ali. See also Q. 5:6. 2. Q. 2:187; my modification of ‘Abdullah Yusuf Ali’s translation. The
word I have translated here as “your wives” is “nisa’ikum.” Nisa’ is theArabic word for women, but it is also used to mean wives. The Qur’analso uses the term azwaj, a masculine/inclusive plural of the word zawj(see Wadud, Qur’an and Woman, pp. 20–3), to mean both spouses in ageneral sense and also wives specifically (e.g., 33:28, with regard to theProphet’s wives); see also Barlas, “Believing Women” in Islam, pp. 183–4.
3. See, e.g., Syed, The Position of Women in Islam, p. 57: “Thus, 2:187 tellsus God has given the husband and the wife a complimentary [sic] role toeach other neither one dominating the other.”
4. Wadud, Qur’an and Woman, 11. I first encountered this insight regardingthe explicit audience for the text in Esack’s essay “Islam and Gender Justice:Beyond Simplistic Apologia,” especially pp. 195–6. Barlas makes referenceto this phenomenon on a few occasions, though to very different effect.
5. Daniel Boyarin makes this distinction between androcentrism andmisogyny (or gynephobia) with regard to rabbinic discourses inBoyarin, Carnal Israel, p. 94.
6. However, there do seem to be some places in the Qur’anic text where,despite the use of terms such as nas, the people addressed are male. See,e.g., Q. 3:14 which refers to “people”’s desire for women, progeny, andmaterial wealth. The Qur’an condemns this commodity-lust, but notthe implicit commodification of women. On this verse, see Wadud,Qur’an and Woman, pp. 53–4.
7. The most important verse discussing creation is Q. 4:1, occurring at thebeginning of the Surah entitled “Women.” Rethinking androcentricaccounts of creation has been one vital element of Muslim women’sscholarship. Even a work on modern Jordan contains a discussion ofthese points; see Sonbol, Women of Jordan, pp. 207–8 in her chapter on“Honor Crimes.” Al-Sheha, Woman in the Shade of Islam, p.10 isinstructive as to how far the imperatives of modern discourse haveaffected conservative authors; while it asserts firmly that “Islam madeboth the male and the female equal in terms of humanity,” it translates4:1 with parenthetical identification of “Adam” as the first creation, and“Eve” as secondary: “O mankind! Be dutiful to your Lord, Who createdyou from a single person (Adam), and from him (Adam) He created hiswife (Eve), and from them both He created many men and women …”For broader consideration of creation and the expulsion from the garden, see Calderini, “Woman, ‘Sin’ and ‘Lust’.”
8. The rules for plurals referring to non-humans and inanimate objectsdiffer.
9. The same problem exists with regard to dual forms as well. The use of amasculine/inclusive dual form in Q. 4:16, describing illicit sexual activ-ity, has given rise to disagreement among commentators as to whetherthe verse refers to two men or a man and a woman. See chapter 5.
10. Q. 4:124.11. In agreement with the noun man, “whoever,” which is grammatically
masculine.
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12. For example, see Badawi, The Status of Woman in Islam, pp.12–13. 13. ‘Abdullah Yusuf Ali translation; see also Ahmed Ali’s explanatory note
to his translation, p. 50. Barlas demonstrates that not all discussions ofwitnessing in the Qur’an privilege male testimony over female testi-mony. “Believing Women” in Islam, p. 190.
14. This verse proposes an equal division for parents of a decedent who hasalso left offspring, indicating that in some cases the gender of the heir isnot the deciding criterion.
15. My understanding here differs from that of Barlas, who sees differencebut not inequality in these regulations. “Believing Women” in Islam, pp. 197–200, and passim.
16. On which, in Muslim contexts more generally, see Marlow, Hierarchyand Egalitarianism in Islamic Thought. She puts the matter succinctly inher Introduction: “[W]hile the Qur’an frequently points out the mean-inglessness of differences of rank in terms of the afterlife, it certainlydoes not attempt to abolish them in the present world. On the contrary,it might be observed that the Qur’an endorses several forms of worldlyinequality. … Its central point thus appears to be that such inequalitieshave no bearing on an individual’s moral worth and ultimate fate in thenext world.” (p. 4) Marlow points out that the strong egalitarian trendwas limited to “the equality of free Muslim males.” (p. 34)
17. Q. 49:13.18. E.g., Q. 16:71, 75. See Barlas, “Believing Women” in Islam, p. 5.19. Stowasser, “Women and Citizenship in the Qur’an,” p. 33.20. Stowasser, “Women’s Issues in Modern Islamic Thought,” pp. 15–16,
discusses this shift, which she sets in the middle of the twentieth century.Abugideiri, “On Gender and the Family,” p. 242 demonstrates that “thenotion of marital complementarity, as conceptualized by twentieth-century Muslim thinkers has, ironically, reified the notion of hierarchi-cal gender difference, and thus gender inequity. Complementarity, asinterpreted by this discourse, provides the Islamic pretext to dulyrestrict female legal rights within the family and expect the wife-motherto sacrifice those rights in the name of family cohesion.”
21. Barlas, “Believing Women” in Islam, p. 199.22. For an entirely different approach, focused on taqwa, autonomy, and
pedagogy, see Barazangi, Women’s Identity and the Qur’an.23. E.g., Q. 33:73.24. These are the translations of, respectively, Ahmed Ali, Shakir, ‘Abdullah
Yusuf Ali, Arberry, Pickthall, Dawud, and Asad.25. Men’s duties were also emphasized by jurists, who focused on the prag-
matic, enforceable components of interpersonal relationships.26. Q. 4:34, Al-rijal qawwamun ‘ala al-nisa’ bi ma faddala Allahu ba‘duhum
‘ala ba‘din wa bi ma anfaqu min amwalihim. Fa’l-salihat qanitat, hafizatli’l-ghayb bi ma hafiza Allaha. Wa allati tukhafuna nushuzahunna, fa‘izuhunna wa’hjuruhunna fi’l-madaji‘ wa’dribuhunna, fa in ata‘nakum,fa la tabghu ‘alayhinna sabilan. Inna Allah kana ‘Aliyyan, Kabir.
27. Barlas, “Believing Women” in Islam, pp. 185–6.28. For discussion of the range of meanings of “bi ma,” see al-Faruqi,
“Women’s Self-Identity in the Qur’an and Islamic Law,” pp. 82–7; al-Hibri, “Islam, Law and Custom,” pp. 28–33; and Wadud, Qur’an andWoman, p. 70.
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29. For the reference to Mary, see Q. 66:12; for Abraham, see Q. 16:120. Forfurther uses of these terms, see Q. 2:116, 238; 3:17, 43; 30:26; 33:31; 39:9;and 66:5.
30. Ali, “Women, Gender, Ta‘a (Obedience) and Nushuz (Disobedience).”31. The identification of “clear lewdness” with nushuz is supported by some
versions of the Prophet’s “Farewell Sermon” in which he outlined themeasures mentioned in 4:34 as consequences for “clear lewdness” bywomen. His words on that occasion are also the source for the specifica-tion that any striking must be “ghair mubarrih,” or “non-violent.”
32. Abugideiri, “On Gender and the Family,” p. 293 refers to Q. 4:34 as “theQur’anic verse treating spousal lewdness,” implicitly insisting on a par-ticular definition of women’s nushuz.
33. Mernissi, “Femininity as Subversion,” p. 109.34. Mernissi, “Morocco: The Merchant’s Daughter,” in Women’s Rebellion,
p. 13.35. See Rispler-Chaim, “Nušuz Between Medieval and Contemporary
Islamic Law;” Shaikh, “Exegetical Violence: Nushuz in Qur’anic GenderIdeology;” and Ali, “Women, Gender, Ta‘a (Obedience), and Nushuz(Disobedience).”
36. Thomas Cleary’s translation and a recent Saudi-financed version basedon the translation by ‘Abdullah Yusuf Ali.
37. Ahmed Ali, Al-Qur’an: A Contemporary Translation.38. On Qutb’s approach to nushuz, see Wadud, Qur’an and Woman,
pp. 74–5.39. Raines and Maguire, eds., Esack, “Islam and Gender Justice: Beyond Sim-
plistic Apologia” and Engineer, “Islam, Women, and Gender Justice.” 40. Engineer, “Islam, Women, and Gender Justice,” p. 111. Ellipsis in ori-
ginal. Syed, The Position of Women in Islam, p. 56, calls this “completeequality” but clearly states that the “degree” portion of the verse relatingto divorce is exempt from this characterization.
41. Lahunna mithl alladhi ‘alayhinna. 42. Wa li’l-rijal ‘alayhinna daraja.43. Engineer, “Islam, Women, and Gender Justice,” p. 111.44. Esposito with DeLong-Bas, Women in Muslim Family Law, p. 134; see
also Niazi, Modern Challenges, p. 11. 45. Nasr, “Manhood in the Qur’an and Sunnah.”46. Wadud makes this point (Qur’an and Woman, p. 68), while situating
her discussion of Q. 2:228 within a larger discussion of “degrees” else-where in the Qur’an (ibid., pp. 66–9). See also Barlas, “BelievingWomen” in Islam, pp. 192–7; Syed, The Position of Women in Islam, p. 56. Syed does stress “equality” however, which he views as being reinforced by 2:187, the garment verse.
47. Barlas, “Believing Women” in Islam, p. 6. 48. My modification of ‘Abdullah Yusuf Ali’s translation.49. My modification of ‘Abdullah Yusuf Ali translation. Note that the
“they” is in the masculine/inclusive plural, so it could mean if the husbands want to reconcile, or if both the husbands and wives want toreconcile. However, the former interpretation is more likely since thehusbands are the ones said to have “more right.”
50. Engineer, “Islam, Women, and Gender Justice,” p. 112.51. Engineer, “Islam, Women, and Gender Justice,” p. 112.
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52. Engineer, “Islam, Women, and Gender Justice,” p. 118. He elaborates:“The normative pronouncements of the Qur’an are eternal and whilerethinking issues in Islamic Shari’ah, particularly pertaining towomen’s rights, the normative pronouncements will have precedenceover the contextual. But during the early centuries contextual often hadprecedence over normative and it was quite ‘normal’ then. And hencethese formulations became widely acceptable in that society. These lawswere thought to be normative then and hence struck deep roots in soci-ety as well as in the hearts and minds of the people. They came to acquirethe status of immutability with the passage of time.”
53. Engineer, “Islam, Women, and Gender Justice,” p. 121.54. Esack “Islam and Gender Justice,” p. 190, quoting Q. 2:228 (mistakenly
cited as 2:118): “And women shall have rights similar to the rightsagainst them, according to what is equitable.” He also quotes Q. 9:71:“Believers, men and women, are protectors, one of another: they enjoinwhat is just and forbid what is evil.”
55. Esack, “Islam and Gender Justice,” p. 188.56. Esack, “Islam and Gender Justice,” p. 195.57. Q. 4:34 begins with references to both men and women in the third
person (“Men are qawwamuna ‘ala women”), but switches to second-person address to men when discussing female nushuz.
58. For example, if “they both fear that they will not observe God’s limits.”Q. 2:229
59. Barlas, Believing Women in Islam, p. 198, specifically with regard to Q. 4:34; Wadud, Qur’an and Woman, pp. 80–82.
60. My translation, drawing on Cleary. 61. Aisha Geissinger addresses the issue of how the Qur’an treats gender in
this verse and others that discuss fasting in an as-yet unpublished paper,“Gendering the Communal Body: Fasting in the Qur’an and theHadith.”
62. One can thus understand Qur’anic injunction to perform ablution “ifyou have touched women;” see this chapter’s epigraph as well as Q. 5:6.The addressees (“you”) are in the masculine/inclusive plural, but con-sensus holds that ablution is not merited by women touching women, asit would be if the command applied to both men and women. Rather, it is men touching women that generates the obligation of ablution, making men the addressees. There is disagreement as to what type oftouching generates the requirement of ablution (whether mere skincontact is meant or specifically sexual touching) as well as whether thesame requirements apply to women who touch men. See discussion inMaghen, Virtues of the Flesh, pp. 247–50. Maghen (p. 250) quotes IbnHazm’s statement in the Muhalla that the Qur’anic provision “is bind-ing for men if they touch women and for women if they touch men.”(My translation, from the Arabic text presented by Maghen.)
63. My translation, drawing on Cleary and ‘Abdullah Yusuf Ali.64. The importance of this metaphor appears in a hadith where, with regard
to the permissibility of performing coitus interruptus, someone says:“She is your field, if you wish, water it; if you wish, leave it thirsty.”
65. Barlas, “Believing Women” in Islam, pp. 160–64. The summary by Kassis, A Concordance of the Qur’an, p. 548, shows a number of instancesin which harth refers specifically to agricultural use (in addition to the
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verbal form in Q. 56:63, see 2:71, 205; 3:14; 3:117; 6:136, 138; 21:78;68:22) and one verse, 42:20, where the term appears three times refer-ring to the harth of this world or that of the hereafter.
66. The connotations of fertility also implicit in this reference to a woman asa tilth have also been used to argue that harth implies productivity, andso it is vaginal intercourse that is meant, not anal intercourse. See, e.g.,Ibn Taymiyya, Al-Fatawa al-Kubra, K. al-Nikah, “Fi rajul yankihu zawjatahu fi dubriha,” vol. 2, pp. 74–5.
67. Sachedina, “Islam, Procreation and the Law,” p. 109.68. In Sahih Muslim, the source of the conflict is reported as a Jewish objec-
tion to intercourse from behind. K. al-Nikah, “Permissibility of havingsexual intercourse with one’s wife from the front or from behind avoid-ing the anus,” trans. Siddiqi, vol. 1–2, pp. 731–2.
69. For an interesting parallel discussion of sexual positions in rabbinic law,see Boyarin, Carnal Israel, pp. 110–11, 116–20.
70. The one relevant verse possibly suggesting that a woman could rejectmale sexual control is in the command not to force female slaves intoprostitution against their wills; see chapter 3.
71. Barlas, “Believing Women” in Islam, p. 5. 72. Barlas, “Believing Women” in Islam, p. 205.73. Halperin, How To Do the History of Homosexuality, p. 153. 74. For a useful reflection on related questions, see Plaskow, “The Right
Question is Theological.”
Notes to Chapter 8
1. Sahih Bukhari, Book of Marriage, “A man marrying off his minor chil-dren,” no. 64 and nearly identical content with a different chain oftransmitters under the next item, “The marrying of a daughter by herfather to the ruler,” no. 65 (trans. Khan, vol. 7, p. 50). See also “Whoconsummated a marriage with his wife when she was a girl of nineyears,” no. 88 reported on the authority of ‘Urwa by his son Hisham. Allthree versions mention that “she remained with him for nine years” –that is, until his death.
2. See, for example, Sachs, “Baptist Pastor Attacks Islam;” Cooperman,“Anti-Muslim Remarks Stir Tempest;” and Jones, “Baptist pastor’swords shock Muslim leaders.”
3. This point is made by Rev. Jerry Falwell in his comment on the matter,“Muhammad, a ‘demon-possessed pedophile’?” The sources cited byVines can be found in Caner and Caner, Unveiling Islam, pp. 41, 56,59–60, 135, 141, n. 4. The statement provoked additional comment inthe Baptist press. Sources are more fully explored in Starnes, “SouthernBaptist leaders affirm Vines in the wake of national attacks,” and Wing-field, “What are the facts behind Vines’ words?”
4. Sahih Muslim, K. al-Nikah, “It is permissible for the father to give thehand of his daughter in marriage even when she is not fully grown up”(trans. Siddiqi, vol. 1–2, pp. 715–16; the translator’s extended apolo-getic in the notes to these hadith is noteworthy on its own). Al-Nasa’i’sSunan includes one cluster of reports positing ages at marriage of six,
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seven, and nine; each of the three specifies that consummation occurredat age nine. Another adjacent report puts marriage at nine, but does notmention consummation. (K. al-Nikah, “Inkah al-rajul ibnatahu al-saghira,” vol. 6, pp. 82–3.) Two other reports in al-Nasa’i, found in asection entitled “Consummation with a girl of nine,” both provide an age of six at marriage and nine at consummation. (K. al-Nikah, “Al-bina’a bi ibnat tis‘a,” vol. 6, p. 131.) Ibn Hanbal provides a report inwhich Aishah was six or seven at marriage, nine at consummation, andeighteen at Muhammad’s death. (Chapters on Marriage and Divorce, p. 97.) On al-Shafi‘i’s and Ibn Hanbal’s treatment of this marriage, seeAli, “A Beautiful Example,” pp. 280–82. Her age was not the only note-worthy information about Aishah’s marriage; other reports in varioushadith texts point out that her marriage and consummation took placeduring the month of Shawwal, previously considered inauspicious forsuch events.
5. First Coast News, June 13, 2002, http://www.firstcoastnews.com/news/2002-06-13/islam_vines.asp, last accessed 11/26/04.
6. Cooperman, “Anti-Muslim Remarks Stir Tempest.” This is apparentlya possible feature of Arabic. However, it has not been a common interpretation. Furthermore, while the reports in Bukhari’s Book ofMarriage include only the additional information that she was with himfor nine years (until his death, as all accounts are clear that she was hiswife until that time); other accounts, including one in Sahih Muslim andone in Al-Nasa’i’s Sunan state specifically that she was eighteen whenMuhammad died; it is not possible to suggest that this meant twenty-eight. (This point was made eloquently by Christopher Melchert in anemail to the Islam section of the American Academy of Religion afterthis was first drafted.) Notably, a press release from CAIR does notinclude any specific information about Aishah’s age. See Islam-Infonet,“Baptists Call Prophet Muhammad Demon-Possessed Pedophile.”Other less direct attempts to rebut the claim are quoted by Jones: “SyadAhsani of Arlington, Southwest regional chairman of the AmericanMuslim Alliance, said Muhammad was betrothed to the child, whichwas a common practice; however, such marriages weren’t consum-mated until children reached adolescence. [Hodan] Hassan [a spokes-woman for the Washington-based Council for American-IslamicRelations,] said it is not known when Muhammad’s marriage was con-summated.” Jones, “Baptist pastor’s words shock Muslim leaders.” Forthe Council on American-Islamic Relations, see CAIR, “President Bushasked to repudiate anti-Muslim remarks.”
7. On these accusations, see Reeves, Muhammad in Europe, pp. 215–16,236–40.
8. Malik, Islam and Modernity, p. 69.9. For one example of an anti-Islam site making claims about Aishah’s age
at marriage, see Ex-Muslim.com, “Evidence that Aisha was 9 when hermarriage to Muhammad was consummated.”
10. On age of sexual consent, see Archard, Sexual Consent, pp. 116–29.Archard’s discussion is helpful in what it says, and illuminating in whatit does not. As is to be expected from a work concerned with sexual con-sent in the modern Western world, he does not discuss children and sexin the context of marriage, except to note (p. 117) that in contemporary
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Europe “all jurisdictions set the age at which persons can marry someyears higher” than the age of sexual “majority” – i.e., permissible sexualactivity. See pp. 126–8 for a brief discussion of intergenerational sexualactivity.
11. See Stowasser, Women in the Qur’an, Tradition, and Interpretations.12. Aziz, “Age of Aisha (ra) at time of marriage,” from the website of
Ahmadiyya Anjuman Isha‘at Islam Lahore Inc. U.S.A.13. Submission.org, “Prophet Muhammed’s Marriage to Aisha.” Note that
there is no explicit mention of Muhammad’s marriage to Aishah in theQur’an.
14. He is identified as its vice-president in various online materials, but itswebsite (http://www.irfiweb.org/) is not available as of 11.25.05.
15. Shanavas, “Ayesha’s Age: The Myth of a Proverbial Wedding Exposed.”Shanavas frames his comments as an “answer to [his] Christian friend.”He argues that “Based on the evidences presented above, the marriage offifty-two-year-old Prophet (pbuh) with Ayesha (ra) at nine year of age isonly a proverbial myth. On the contrary, Ayesha (ra) was an intellectu-ally and physically mature Bikr (virgin = adult unmarried woman withno sexual experience) when she married Prophet (pbuh).”
16. On one scholarly attempt to assess this corpus of material, see Schoeler,“Foundations for a New Biography of Muhammad.”
17. Nadvi, Women Companions of the Holy Prophet and Their Sacred Lives,p. 34.
18. Nadvi, Women Companions of the Holy Prophet and Their Sacred Lives,p. 35.
19. Spellberg, Politics, Gender, and the Islamic Past, p. 31. 20. Thompson, The Wives of the Prophet Muhammad, p. 15. Thompson
includes parenthetical Arabic honorifics after the mentions of theProphet and Aishah which are not reproduced here.
21. Syed explicitly declares, without citing any sources, what Thompsononly implies: “The Prophet’s (pbuh) own marriage to Ayesha when shewas nine years old was performed in Mecca long before the Islamic lawsof marriage were revealed at Medina by the Qur’anic verses. However asthe consummation of the said marriage of Ayesha and the Prophet(pbuh) was postponed for five years (some say seven years) to allowAyesha to attain majority, in reality the marriage of Ayesha took placewhen she was either 14 or 16 years old.”The Position of Women in Islam,p. 40.
22. Moin, Umm al-Mu’minin ‘A’ishah Siddiqah, pp. 4–5.23. Moin, Umm al-Mu’minin ‘A’ishah Siddiqah, p. 8.24. Identified in the article as “Dr. Muzammil H. Siddiqi, former President
of the Islamic Society of North America and Director of the IslamicSociety of Orange County, Garden Grove, California.” He continues:“Her maturity, knowledge, intelligence, and contributions during thelife of the Prophet and afterwards all indicate that she was either anexceptional nine-year-old or must have been older than that. Whateverthe case may be about her age, one thing is certain: she was a most com-patible spouse of Prophet Muhammad. None of the contemporaries ofthe Prophet, his friends or foes, are reported to be surprised by this mar-riage or made objections to it.” Siddiqi, “Would a 50-year-old ‘Prophetof God’ Have Sex with a 9-year-old Girl?”
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25. Likewise, in one of three question-and-answer exchanges aboutAishah’s age posted at the Jamaat-e-Islami site, the respondent gives,without any textual citation, his own personal opinion that “consum-mation [occurred] at the age of 9 to 11.”
26. Even a Jamaat-e-Islami response to a question as to whether Aishah wasseven at her marriage is answered in the following way: “There are dif-ferent reports and traditions regarding Umm-ul-Mo’mineen Aisha’sage when she was betrothed. What every one agrees to is that while thepromise/nikah happened in Makkah, she was delivered to the house ofthe Prophet (s.a.w.) (meaning her ‘Rukhsati’) about four years later inMedina. Thus even according to the age you have quoted, she was about11 years old when she entered the Prophet’s haram in Madina. Somebelieve that she was above 13; some others reports say much older (17, 19). The generally quoted age is 9 years.” Haq, “Marriage of Ayesha(RA) with Prophet Muhammad (p.b.u.h.)” In reponse to an earlierquery, the same author makes clear that while “Some scholars do insistthat she was older … most agree she was either 6 or 7 when betrothed.”He gives his “personal opinion” that “consummation [took place] at theage of 9 to 11.”
27. Muhaddith.org, “Answers to Attacks Against Islam: Morality of marry-ing Aishah at an early age,” emphasis in original.
28. See, for example, Osama Abdullah’s “My response to the ‘Child Moles-ter’ lie against our beloved Prophet, Muhammad peace be upon him,”from answering-christianity.com, which contains sections from Talmud and references to biblical prophets. Similar materials areincluded under the heading “The Bible on marriage of young girls withmuch older men,” in the Aziz, “Age of Aisha (ra) at time of marriage.”
29. For a thorough discussion of the rabbinic issue at stake, see Meacham,“Marriage of Minor Girls in Jewish Law.”
30. There are references to nine as the age of presumptive majority in sometexts such as Ibn Hanbal’s, but I have not come across any explicit refer-ence to Aishah’s menarche as trigger for consummation. Bukhari’schapter heading prefacing one of his reports on Aishah’s marriageincludes a discussion of the ‘idda (post-marital waiting period) for pre-pubescent girls, which presumes consummation of a marriage beforemenarche. K. al-Nikah, “A man marrying off his minor children,” trans.Khan, vol. 7, p. 49; possibly also “A woman looking at Ethopians and thelike if it does not lead to bad consequences,” trans. Khan, vol. 7, p. 119.In one fifteenth-century Cairo court case, the Prophet’s marriage toAishah was used as evidence for the permissibility of marrying off minorgirls. Petry, “Conjugal Rights versus Class Prerogatives,” p. 233.
31. See, e.g., Tucker, In the House of the Law, pp. 155–6; and Motzki, “ChildMarriage in Seventeenth-Century Palestine.”
32. See the entry on “Ayesha” in The American Muslim, “Answers to Ques-tions Non Muslims Ask,” an alphabetical list from “Abrahamic Faiths”to “Women’s Issues.” Interestingly, the compilers of this list make muchthe same distinction between articles aimed at dialogue and those aimedat polemic.
33. Islam Online.net, “Addressing Misconceptions about Prophet’s Marriage to ‘Aisha.”
34. Haq, “Marriage of Ayesha (RA) with Prophet Muhammad (p.b.u.h.).”
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35. Shanavas, “Ayesha’s Age: The Myth of a Proverbial Wedding Exposed.” 36. Haq writes, “So in this marriage with A’isha there was a desire to cement
the bonds of friendship with Abu Bakr as well as the desire for propagat-ing the teachings of Islam, particularly delicate matters relating towomen folk.” “Marriage of Ayesha (RA) with Prophet Muhammad(p.b.u.h).” See also Sabeel Ahmed, “Why Did Prophet Muhammad(pbuh) Married [sic] Young Aisha Siddiqa (r.a.)?,” the first of which is“To reinforce the friendly relations already existing with Abu Bakr (hisclosest companion).” Interestingly, the notion that the marriage was acalculated strategic move is one point raised by polemicists as well; here,though, it has been given a different valuation and serves to deflect accu-sations of lechery.
37. Ahmed, “Why Did Prophet Muhammad (pbuh) Married [sic] YoungAisha Siddiqa (r.a.)?” The article identifies Ahmed as a student offamous polemicist Ahmed Deedat, and notes – without any apparentsense of irony – that “His main interest is in comparative religion.”
38. Haq, “Marriage of Ayesha (RA) with Prophet Muhammad (p.b.u.h.).”The passage deserves to be quoted at length: “The issue of child marriagehas come via West and is part of a whole ‘package’ that intends to dis-mantle Islam as a social code and state philosophy. Try to look at thecomponents in that whole context. Let me give you a few tips: ‘childmarriage’, ‘gender equality’, ‘women empowerment’, ‘sex education’,‘reproductive control’, ‘contraception’, ‘sustainable growth’, — areamong the few terms used in the gender context. Can you please tell methat you know enough about this ‘UN sposored shari’ah’, that is beingthrust as alternative to the Shari’ah of Islam? If you are not well aware,then kindly be careful about pushing too hard even some seemingly‘reasonable’ issues like child marriage. The real intention (seems) not tostop this practice today (which is more a Hindu issue) but lead to theerroneous conclusion that Islam permitted a ‘wrong’ thing.”
39. Squires, “The Young Marriage of ‘Aishah.”40. http://www.shiachat.com/forum/index.php?showtopic=42999&pid=
538017&st=0&#entry538017, last accessed 11/04/04. For an extended discussion with a number of Sunni perspectives, see alsohttp://www.ummah.org.uk/forum/showthread.php?t=7838, last accessed11/04/04, which takes off from Understanding-Islam.com’s article“What was Ayesha’s (ra) Age at the Time of Her Marriage to the Prophet(pbuh)?”
41. On this point, see Moosa, “The Debts and Burdens of Critical Islam,”pp. 21–3.
42. These rules mostly relate to the greater number of his wives, restrictionson his ability to marry new ones, and his freedom from a strict scheduleof turn-taking between them. See Ali, “A Beautiful Example,” pp. 274–5.
43. I have heard anecdotal evidence, however, that marriages of girls of thatage has continued into the modern era; one Saudi woman reported hergrandmother’s marriage at this age. Similarly, after the Iranian revolu-tion of 1979, the age of marriage for girls (with parental consent) waslowered to nine, though it has since been raised.
44. Various sources report, for example, that ‘Umar b. al-Khattab, the second caliph and father of the Prophet’s wife Hafsa, later married theProphet’s granddaughter, born to ‘Ali and Fatima.
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45. Plaskow, “Decentering Sex.”46. After this was written, I came across a strikingly similar sentiment
expressed by Stephanie Coontz (Marriage, a History, p. 19). She writes:“I don’t believe that people of the past had more control over theirhearts than we do today or that they were incapable of the deep love somany individuals now hope to achieve in marriage. But love in marriagewas seen as a bonus, not a necessity.”
47. Not that either wealth or wisdom was trivial, either in the Prophet’s ownmarital history or Islamic history more broadly.
48. This is a radically oversimplified view of the medieval ‘Ashari/Mu‘tazilidebate. Anderson provides a summary of the basic views of the Asharitesand the Mutazilites in Islamic Law and the Modern World, pp. 9–10. Thisquestion is not just a Muslim one; C.S. Lewis sums up the Christiandebate in strikingly similar terms, as “whether God commands certainthings because they are right, or whether certain things are right becauseGod commands them.” The Problem of Pain, p. 99. These issues stillhave currency today, even if the debate remains largely unspoken. SeeSquires, “The Young Marriage of Aishah,” for the claim that “Accordingto Judaism, Christianity, and Islam, right and wrong are ordained byAlmighty God. As such, morality does not change over time based onour whims, desires, or cultural sensitivities.”
49. Q. 3:117, 9:70, 11:101, 16:33, 29:40, and 30:9. Rahman, Major Themes ofthe Qur’an, p. 25, states that “all injustice [zulm] is basically reflexive.”
Notes to Chapter 9
1. Sheila Briggs’ remarks, Feminist Sexual Ethics Project colloquium II,Brandeis University, September 2004. See also Judith Plaskow, “Decen-tering Sex,” “Authority, Resistance, and Transformation,” and TheComing of Lilith.
2. Q. 30:21.3. Working off Alasdair MacIntyre’s discussion of tradition, Edward Curtis
proffers a helpful definition: “tradition is not an historical product somuch as an historical process in which human beings, interacting witheach other in discrete social contexts, invent, embrace, and inheritsomething that they care about and argue over, whether explicitly ornot.” Curtis, Islam in Black America, p. 4.
4. Maghen, Virtues of the Flesh, p. 282.5. See, e.g., Roded, Women in Islamic Biographical Collections, pp. 63–89.6. Abou El Fadl, The Authoritative and the Authoritarian in Islamic
Discourses, p. 13.
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Abdallah, Osama 190Abdul-Ghafur, Saleemah 174Abdul-Rauf, Muhammad 91–2, 94ablutions 4, 64–6, 80, 105, 173, 175, 177,
186Abou El Fadl, Khaled xxiii, xxiv, 23, 24, 98,
103, 155, 159, 160, 163, 165, 174, 181,192
Abu Bakr 135Abu Dawud 50, 105, 106, 110Abugideiri, Hibba 184, 185Abu Hanifa 13, 16, 30, 32–3Abu Huraira 10, 12, 172Abu-Sahlieh, Sami Aldeeb 105, 181, 182Abusharaf, Rogaia 109, 182Abu Talib Makki 76, 175adultery xv, 46, 61, 64, 120, 172
see also zinaAfghanistan 42, 148Africa 2, 41, 42, 58, 97, 99, 101, 144, 161,
168, 169, 174, 180, 181A’Haleem, Asma 101, 110Ahmadiyya (Ahmadis) 138, 189Ahmed, Leila xix, 19, 20, 159, 161, 163Ahmed, Sabeel 145, 191Ahmed, Sheikh Omar 97–8, 101, 102, 103,
110Aishah 135–50, 156, 188–92ahl al-kitab 13, 163, 164, 172Allah see GodAlalwani, Taha Jabir 17–19Algosaibi, Ghazi 47–8, 51Algar, Hamid 168‘Ali b. Abi Talib xxvii–xxviii, 27Anderson, JND 192An-Na’im, Abdullahi 38Antoun, Richard 160, 161
Archard, David 171, 188authoritarianism 23, 24, 98, 103, 165, 180Ayubi, Zahra x, 160, 166Azam, Hina 169, 177Aziz, Zahid 189, 190‘azl (withdrawal) 7–8, 48
Badawi, Jamal 19, 106, 107, 108, 182, 184Bailey, Sherwin xi, xviii, 160Barakat, ‘Umar 15, 103, 107–8Barazangi, Nimat Hafez 184Barlas, Asma 116, 128, 132, 181, 183–7Bayman, Henry 46Beeston, AFL 177Berkey, Jonathan 102, 163, 180–2Boudhiba, Abdelwahab 85Bowen, Donna Lee 162Boyarin, Daniel 162, 183, 187Brockopp, Jonathan xxi, 159, 169Brooks, Geraldine 162, 180Brooten, Bernadette J ix, 177Brundage, James 163Bukhari see Sahih Bukhari
Calderini, Simonetta 183Caner, Emir Fethi 187Caner, Ergun Mehmet 187Carstensen, Laura L 158chastity 60–6Cilardo, Agostino 179circumcision
female 97–111male 101, 104–5, 108, 181, 182
coitus interruptus see ‘azlCollins, Robert 168, 169concubinage xvi–xvii, xxv, xxvi, 39–55, 57,
58, 61–2, 67, 74, 92, 96, 160, 163
Index
Note: In alphabetizing entries, no notice is taken of the Arabic prefixes al- or el-.
Index.074 14/07/2006 4:01 PM Page 213
consummation 5, 22, 137, 140, 141, 143,144, 161, 173, 175, 188, 189, 190
contraception 51see also ‘azl
cooke, miriam x, 180Cook, Michael 174Coontz, Stephanie 192Cooperman, Alan 187, 188Coulson, Noel 166, 174Council on American-Islamic Relations
136, 188Curtis, Edward E IV 192
Davies, Eryl 172Davis, David Brion 168, 169DeLong-Bas, Natana 167, 185al-Dhahabi 75–7, 175Dialmy, Abdessamad 171Diederich, Mathias 168divorce 24–38
judicial 27triple 24, 26
Doggett, Maeve E 163Doi, Abdul Rahman xv–xvi“don’t ask, don’t tell” xxiii, 69, 73, 75–96Dover, KJ 172, 177dower 1, 2, 3–5, 9, 12, 13, 22, 27, 28, 34, 35,
36, 37, 43, 59, 64, 65, 74, 80, 95, 118,151, 161, 167
Dunne, Bruce 175Dupret, Baudouin 179Duran, Khalid 79
Egypt 29, 34, 41, 58, 68, 70, 100, 109, 181Eid, Talal 167Engineer, Asghar Ali 123–5, 185, 186Esack, Farid x, 123, 125, 126, 160, 183,
185, 186Esposito, John 124Europe 18, 22, 72, 85, 92, 168, 188, 189European Council for Fatwa 19, 165excision see female circumcisionexegesis 54, 60, 82, 84, 90, 97, 113, 121,
122, 123, 129, 132, 133, 161, 165, 185
Fadel, Mohammed 160Falwell, Jerry 187Faruki, Kemal 159Faruqi, Harith Suleiman 182Al-Faruqi, Maysam 184fatwa xiv, 18, 29–30
female circumcision 97–111fitna 9 fornication 26, 46, 172
see also zinaFriedmann, Yohanan 161, 164, 165, 170Fyzee, Asaf AA 165
gay Muslims 79, 81, 84, 86, 89, 92, 175,176, 178
see also homosexuality; lesbiansGeissinger, Aisha 186al-Ghazali xxvi, 1, 7, 10, 12, 102, 161, 163,
181ghusl 4
see also ablutionsGod 11, 14, 20, 24, 30, 41, 53–5, 60, 86–8,
90, 115–16, 118–20, 127–9, 149–52,170, 192
Gollaher, David 180, 181, 182Gordis, Robert 178Gramick, Jeannine 178
hadd 59, 62, 63, 65, 66, 74, 77, 172, 174hadith 7, 11, 49, 64, 99
see also Sahih Bukhari; Sahih Muslim; al-Tirmidhi; etc.
Hallaq, Wael 160Halperin, David 132–3, 177, 178, 187Hanafi school 12, 13, 14, 16, 24, 27, 32, 33,
39, 92, 108, 161, 163, 167, 171Hanbali school 108al-Haq, Gad 102, 110–11Harrison, Frances 179Hasan, Zeeshan 170Haskafi, Muhammad ‘Ala al-Din 39, 41,
167, 171, 179Helem-Lebanon 176hermaphrodite 92, 93, 94, 175, 179Al-Hibri, Azizah 162, 163, 170, 184Hidayatullah, Aysha x, 160, 162, 168, 176,
178homosexuality 75–96, 162, 175, 176, 177,
178, 179, 187see also gay Muslims; lesbians; same-sex
marriageHoodfar, Homa 161Hourani, George 159Hoyland, Robert 182Hussaini, Mohammad Mazhar 159
Ibn ‘Abidin 161
214 index
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Ibn Abi Shayba 166Ibn Abi Sulayman, Hammad 19Ibn Baz 52Ibn Hajar 76, 77Ibn Hanbal 32, 33, 173, 188, 190Ibn Jibreen 9–10Ibn Kathir 168Ibn Naqib al-Misri 103, 107Ibn Rushd 15Ibn Taymiyya 26illicit sex see zinaImam, Ayesha M 189, 190, 191impotence 12, 13, 64India 24, 29, 34, 148, 158, 165, 180Indonesia 100intermarriage 1–3, 13–23Internet 14, 138, 139, 142, 176Islamic law
on marriage 61, 62, 64, 68, 71, 72, 160,161, 162
and modern statutory law 24–38on slavery 42, 43in the United States 1–23, 25, 35, 36, 37,
70, 87, 99, 135, 152, 153, 155, 160, 182ISNA (Islamic Society of North America)
17, 189
Jackson, Sherman A 159al-Jahiz 84, 177Jakobsen, Janet R 178Jamaat-e-Islami 144, 146, 190Jamal, Amreen 82, 176Jennings, Ronald 167Jones, Jim 187, 188
kaba’ir (enormities) 75–6Kahf, Mohja 160, 174Kamal, Abdul Aziz 173Karim, Jamillah xKassamali, Noor 99–100Kassis, Hannah 186Kazee Khan see Qadi Khan Keller, Nuh 51, 52, 75, 76, 84–5, 107, 108,
162, 170, 174, 175, 177, 180, 182Khadduri, Majid 160, 161, 170, 171Khalifa, Rashad 139Khan, Sir Sayyid Ahmad 43al-Khudri, Abu Sa‘id 50khul‘ 27, 34–5, 36, 161, 166, 167Kugle, Scott x, 79, 82, 83, 84, 160, 162, 176,
177, 178, 179
lesbianism 75, 76, 77, 78, 79, 80, 81, 86, 87,89, 175, 176, 178, 179
see also gay Muslims; homosexuality;tribadism
Lewis, Bernard 168, 169Lewis, CS 192li‘an 25, 64, 69Little, Cindy 180liwat 75, 76, 77, 81Lovejoy, Paul 168Lutfi, Huda 159, 162, 163
McBride, James 182Mack, Beverly 168McLoughlin, Patrick 180Maghen, Ze’ev 154, 162, 177, 186, 192Mahmood, Saba 180mahr see dowerMalaysia 24, 100male circumcision 101, 104–5, 108, 181,
182Malik ibn Anas 170Malik, Iftikhar 161Maliki school 19, 27, 63, 159, 160, 164,
169, 181Malti-Douglas, Fedwa 163, 176al-Marghinani 14, 164Mariyya al-Qibtiyya (Maria the Copt) 46,
137see also umm walad
Marlow, Louise 164, 184marriage 1–23
same-sex 91–5temporary see mut‘aage 57, 58 136–48, 171, 173, 188–91contracts 12, 22, 25, 27, 28, 36, 166, 171
Mashhour, Amira 161, 167, 170Mattson, Ingrid 40, 168, 169Mauritania 42Meacham, Tirzah 190Mernissi, Fatima 54, 121, 170, 185Miers, Suzanne 168milk (dominion, ownership) 5, 25, 35, 36,
40, 42, 53Miller, Joseph C 169Minaret of Freedom 106, 110Mir-Hosseini, Ziba 161, 162Moghissi, Haideh 158, 162Moin, Mumtaz 141, 142Moore, Matthew 181Moors, Annelies 161
index 215
Index.074 14/07/2006 4:01 PM Page 215
Moosa, Ebrahim x, 69, 162, 174, 191Morocco 161, 168, 171, 185Motzki, Harald 190Mubashshir Majeed, Debra 177Muhammad (the Prophet) see Prophet
MuhammadMurad, Abdal-Hakim xxii, 87–8, 94Murata, Sachiko 178Murray, Stephen 85Musallam, Basim 162, 169–70Music, Rusmir x, 93, 179Muslim [b. al-Hajjaj] see Sahih MuslimMuslim Canadian Congress 86Muslim Women’s League 86, 87, 88, 104,
178, 182Mutahari, Murtadha 171mut‘a (temporary marriage) 58, 61al-Muzani 161
Nadvi, Syed Suleman 140, 142nafaqa see supportNafi, Basheer xxiii, 23, 160Najmabadi, Afsaneh 179al-Nakha’i, Ibrahim 19al-Nasa’i 187, 188Nasr, Muhammad Musa 185Nazer, Mende 42, 168Niazi, Kausar 158, 185nikah 92, 141
see also marriageNomani, Asra Q 56, 57, 70–1nushuz 76, 118, 120–2Nussbaum, Martha 177
obedience 119–20orgasm 7
see also sexual satisfactionOrmsby, Eric 170
Pakistan 34paternity 46, 66–72Pellegrini, Ann 178People of the Book see ahl al-kitabPetry, Carl F 190Plaskow, Judith xviii, 18, 159, 187, 192polygamy/polygyny xv, xvi, 53, 58, 156, 170Prophet Muhammad 135–50
on celibacy 6concubines 39–40, 46–7on divorce 24as husband 39, 40, 60
on sex with war captives 47–51sunnah xxi, 6, 47, 50, 57, 125, 147, 152wives 39, 46–7, 60, 67, 135–50see also hadith
puberty 58, 70, 143, 144
qadhf 62, 76Qadi Khan 24, 29, 30–2, 37Qaisi, Ghada 161Al-Qaradawi, Yusuf 159Qur’an xx, xxi, 5, 7, 13, 14, 17, 21, 25, 27,
40, 62, 63, 75, 83, 90, 103, 112–34,151–3, 156, 159, 165, 166, 170, 171,181, 183, 184, 185, 186
circumcision 103–4concubinage 40homosexuality 81–2illicit sex 56intermarriage 19–20slavery 44, 45, 53–5
Rafi‘ b. Khadij 121Rahman, Fazlur 52, 122, 159, 170, 192Ramadan, Tariq 74al-Ramli, Khayr al-Din 31rape 12, 30, 51, 57, 66, 92Rapoport, Yossef 28–9Reeves, Minou 188Reinhart, Kevin x, xxiv, 24, 111, 159, 160Rispler-Chaim, Vardit 185Rizvi, Syed Aminul Hasan 172Roald, Anne Sofie 181, 182Roded, Ruth 192Rompies, Karuni 181Rosenthal, Franz 177Al-Rouhayeb, Khaled 80Rowson, Everett 175, 176, 177Rubin, Uri 173Ruxton, FX xix, 19, 159, 181
el-Saadawi, Nawal 104 Sabbah, Fatna 162Sachedina, Zulie 169, 187Sachs, Susan 187sadaq see dowerAl-Sadlaan, Saalih ibn Ghaanim 163Saed, Khaleda 178Safi, Omid x, 167, 180Sahih Bukhari 10–11, 50–1, 64, 105, 135,
137, 139, 140, 141, 142, 143, 146, 147,156, 163, 166, 172, 173, 187
216 index
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Sahih Muslim xxv, 10–11, 51, 60, 64, 105,139, 143, 146
Salafis xx, xxiiiSalecl, Renata 180same-sex marriage 18, 91–5Sanders, Paula 93Sanneh, Lamin 174Saudi Arabia 42, 52, 96Schmidtke, Sabine 162Schmitt, Arno 179Schoeler, Gregor 189sexual availability 2, 6, 11, 13, 15, 95sexual satisfaction 6–13, 79, 104, 181al-Shafi‘i xvi, 4, 41, 158, 160, 161, 173,
188Shafi‘i school 15, 51, 75, 97, 100, 162Shaham, Ron 166Shaikh, Sa’diyya 8Shanavas, TO 139Shanely, Mary Lyndon 158shari‘a law 21, 37, 38
see also Islamic lawSharif-Clark, Asia 161Al-Sheha, ‘Abdul Rahman 158, 160, 162,
163, 167, 183Shi‘a 2, 16, 26, 42, 47, 58, 61, 102, 181al-Shi’bi 19shubha 68Sidahmed, Abdel Salam 174Siddiqi, Muzammil 142, 189Sikainga, Ahmal Alawad 168Sivola, Juha 177Skinner, Marilyn 172Skovgaard-Petersen, Jakob 179slavery xvi, xvii, xxv, 39–55, 57, 74, 116,
149, 152, 156, 160, 168, 169, 170see also concubinage
Smith, Jane 179Sonbol, Amira El-Azhary 159, 167, 183Southern Baptists 135, 187, 188Spectorsky, Susan 167, 173Spellberg, DA 189Squires, Abdur Rahman Robert 146, 191,
192Starnes, Todd 187stipulations 28, 166Stowasser, Barbara Freyer 116, 184, 189Sudan 42, 101, 109, 168, 169
sunnah xxi, 6, 16, 25, 47, 48, 50, 54, 56, 57,71, 99, 102, 105, 109, 125, 147, 148,151, 152, 159, 169, 170, 185
support 5–6, 22Syed, Mohammad Ali 53, 140, 159, 165,
170, 184, 185, 189
Taji-Farouki, Suha xxiii, 23talaq 25–9, 32–7, 165, 170
see also divorceThompson, Ahmad 140, 142Thumma, Scott 176al-Tirmidhi 165, 166, 171, 172Toledano, Ehud 168, 169Toubia, Nahid 109, 180, 181Treggiari, Susan 172tribadism 75, 76, 77, 176triple divorce 24, 26
see also talaqTucker, Judith E 159, 161, 166, 190
Uebel, Michael 175, 176‘Umar b. al-Khattab 13, 191umm walad 46, 169
Van Gelder, GHJ 173, 179Vines, Jerry 135, 136, 142, 146, 187, 188virginity 58, 73, 140, 149, 173
Wadud, Amina xx, 128, 170, 183, 184, 185,186
Walters, Jonathan 177Wani, MA 158, 163Weeks, Jeffrey 89–90Wingfield, Mark 187withdrawal see ‘azlwitnessing 63, 87, 115
women’s and men’s testimony 115, 116,184
Wolfe, Michael 158women’s status xii–xxviiiWynn, Lisa 161
Yalom, Marilyn 158, 172
zawaj ‘urfi 67, 70zina (illicit sex) 56–74, 75, 76, 77, 81, 103,
171, 172, 173, 175Zomeño, Amalia 161, 164
index 217
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- Contents
- Acknowledgements
- Note on texts, translation, and transliteration
- Introduction
- 1 Marriage, Money, and Sex
- “And according to what they spend from their wealth …”5
- Sex
- Intermarriage
- Conclusion
- 2 Lesser Evils: Divorce in Islamic Ethics
- Untying the knot
- Extreme circumstances
- Prospects for reform
- Conclusion
- 3 “What your right hands possess”: Slave Concubinage in Muslim Texts and Discourses
- Islam and slavery: overview of sources and history
- Women, war captives, and withdrawal
- Conclusion
- 4 Prohibited Acts and Forbidden Partners: Illicit Sex in Islamic Jurisprudence
- Protecting chastity: the classical texts
- Paternity, legal fictions, and non-marital sex in contemporary Muslim thought
- Conclusion
- 5 Don’t Ask, Don’t Tell: Same-Sex Intimacy in Muslim Thought
- History
- Don’t ask, don’t tell
- Same-sex marriage
- Conclusion
- 6 “Reduce but do not destroy”: Female “Circumcision” in Islamic Sources
- Islamic or un-Islamic?
- “Reduce but do not destroy”
- Conclusion
- 7 “If you have touched women”: Female Bodies and Male Agency in the Qur'an
- To whom am I speaking?
- A difficult verse
- Garments for one another
- Conclusion
- 8 The Prophet Muhammad, his Beloved Aishah, and Modern Muslim Sensibilities
- Apologetics and Polemics
- Searching for solace
- Conclusion
- 9 Toward an Islamic Ethics of Sex
- Notes
- Bibliography
- Index
