Freedom from the Forbidden

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Video Script: Summary of Kecia Ali’s Sexual Ethics & Islam – Ch 4: Illicit Sex | What the Patriarchy?!

Link to the video here, script below.

Bi-smi llāhi r-raḥmāni r-raḥīm.

Hello, salaam, and welcome to #What the Patriarchy, where we are working to completely uproot the patriarchy from Islam. #inshaAllah #ipromise we got this

Oh, this is Shehnaz!

So we’re back, continuing our summary of Kecia Ali’s fantastic book Sexual Ethics & Islam: Feminist Reflections on Qur’an, Hadith, and Jurisprudence, and this is the 2016 edition we’re talking about. It was originally published in 2006. So far, we’ve covered three chapters of the book – on marriage, divorce, and slavery. And in this episode, we’ll cover chapter 4, which is on “illicit sex,” haram sex. Zina, for example.

So, the chapter is called “Prohibited Acts and Forbidden Partners: Illicit Sex in Islamic Jurisprudence [fiqh].What we’re gonna talk about in this video – and what the author covers in the chapter – are the following: what is zina? What even makes zina unacceptable morally, and what makes a marriage morally acceptable? Then we’ll talk about the punishment for zina. We’ll talk about the discrepancies between classical fiqhi ideas on sex and sexual ethics and today’s Muslims’ ideas on sex and sexual ethics. We’ll talk about sexual desire, and especially of course female sexual desire. And a whole bunch of other things, like polyandry and DNA testing and, of course, you also get my very important opinions on the insecurities of too many male scholars and male fuqaha and how corrupt the fiqh is and the many times it contradicts the Qur’an because hashtag male privilege.

Okay, so what even IS zina? Well, zina is sexual intercourse between two people who are not legally and Islamically permitted to each other for sexual purposes. We’ve established already what legitimates sexual contact – and that would be the mahr/dower, the thing that the husband gives his wife at the time of marriage, or purchasing the person that you’re about to have sex with (so enslaving someone). This is again according to fiqh, not necessarily according to Islam. You understand of course that my definition of Islam is not limited to fiqh and fiqh doesn’t make or break Islam. Islam is much grander, much more profound, and it’s far beyond fiqh. Plus, fiqh changes all the time and is by definition not binding, so we don’t have to agree with it. We don’t have to live by it all the time in all contexts. And that’ because fiqh literally is the interpretation of the sharia, and historically, it’s been a select class and group of people – men actually, a select class of men – whose interpretations of all things Islam survived. We’ll talk about how that happened in another episode. We’ll also talk about the relationship between fiqh and sharia in a different episode. But for now, you can just think of fiqh as men’s interpretations and opinions that are not always correct and often contradict the Qur’an, and that’s because Islam cannot be limited to the Qur’an alone either! And these opinions change all the time because fiqh is still happening and it’s literally a human, historically a very male, endeavor.

So back to zina. IF zina is immoral, what makes “licit sex” halal sex moral? In fact, is zina sinful or immoral because there was no dower, no mahr involved? The point is, what makes an Islamic marriage moral? What determines, what factors determine, that sexual access to another person is legitimate? The author asks an excellent question here: does the dower and unilateral access to divorce by the husband make marriage moral? Are those the factors, uniliatera access to divorce by the husband only and the dower, are those the only factors that determine that the marriage is legitimate, is halal, is moral, is morally acceptable? Is religious marriage, like a nikaah but no involvement from the court or no registration of the marriage, sufficient to make sexual contact between two people licit, halal, permissible? Where does the lawfulness of a marriage rest? And, my personal favorite question: What is God’s stake in marriage? Why’s God so invested in marriage? Our answers to these questions can tell us a lot about our own sense of ethics and sexual ethics in particular – they may not tell us as much about the Islamic sense of sexual ethics, however.

Of course, the classical ideas on marriage and sex aren’t compatible with our ideas today. And we’re not talking just about the classical Islamic ideas but also non-Islamic, non-Muslim ideas too. You see, like other ancient Near Eastern and Mediterranean codes and laws, historical Muslim texts and Islamic laws, too, to quote the author here, “held the view that the individual status of a legal relationship between two parties determined whether sex was licit” (this is on p73 of the second edition). So a person’s status as free or enslaved, their status as the the enslaver or the enslaved, their marital status, and of course their gender and their sexual orientation, etc. are the things that determined who a person had sexual access to – and whether they needed the person’s consent.

Like ancient Greek, Roman, Biblical laws on sex, in the fiqh too, the man and the woman are not equal in their access to sex. The man gets to have up to four wives, AND an infinite number of concubines, AND an infinite number of mut’ah wives – by the way, all simultaneously.. The woman, in the meantime, can have sex with ONLY ONE man – her husband, someone she’s in nikaah or mut‘ah with OR her enslaver slash master. Clearly, I don’t agree with the male fuqaha’ that only men can have access to, that only men can have multiple sexual or romantic partners. Because fun fact, the Qur’an doesn’t forbid polyandry! And it was a thing before Islam in Arab the cultures and it was pretty common historically and is still legit in some parts of the world. But how would polyandry work, you ask? Well, you see, while the men of fiqh pretend like it’s all about lineage and stuff, how will we know whose baby it is, for example, that’s actually not an Islamic obsession; that’s not something that God is invested it in all. In the past, as well as today in communities that have polyandry or women having multiple sexual partners at one time, there ARE systems in place to take care of the question whose baby it is. One system is not to care at all whose baby it is because the baby or the child is believed to belong to the whole tribe the whole community; everybody takes care of this baby, this is everybody’s baby. Another is to designate someone in the community who decides whose baby it is, and the leader’s decision is binding. And of course in the 21st century like today, of course, we have DNA testing, etc. The point here is that when you say something that you think is so brilliant, like “the reason why women can’t have multiple sex partners is because how will we know whose baby it is,” it’s actually not as brilliant a comment as you think it is. There are answers to the question of lineage and paternity if you want those answers, AND ALSO, can menopausal women or infertile women or women who have opted not to have any children go ahead and have multiple sex partners? Because, you know, there’s no issue there of children or paternity or lineage and so on. And if your answer is no, then you never really cared about the question of the children or lineage ever, really.

So this whole unequal access to sex being determined by your status as free or enslaved person, or your class basically, and your gender? Yeah, I’m not so convinced that’s established by the divine – it’s established by exactly the same folks, the same men, who were then able to benefit and profit off of these corrupt and unjust conclusions. Oh, I should probably make it clear that what I’m just saying now about sexual access and the corruption of (fiqh) and the profiting off of these corrupt ideas is me talking and not the author. She doesn’t like this.

And so, the reason that these classical ideas on marriage and sex aren’t compatible with today’s ideas on sex and marriage or sexual relations among Muslims is that, for one, the historical scholars allowed slavery and they allowed sex with enslaved women; and while today we, hopefully, agree that sex with an enslaved person is by default rape, you should know that the historical scholars actually DID recognize the importance of consent but they claimed that the consent of the concubine was NOT needed for sex, or for whether the man could ejaculate inside her or not, possibly making her pregnant. They did debate and mostly agree that a man needed his FREE wife’s consent, the free woman’s consent, in order to have sex with her and/or to ejaculate inside her – just not if the woman the man was having sex with was enslaved. And besides slavery and sexual relations with enslaved women and essentially raping enslaved women, they also allowed child marriage and forced child marriage at that! You should read my dissertation for more on this. And today, officially at least, both of these things, slavery and child marriage, are legally unacceptably pretty much everywhere in the world, even if the age of consent varies drastically from country to country. Today, we also largely, not necessarily universally, agree that consent plays an important role in the morality of sexual activity. It’s not the only thing that matters, and it shouldn’t be the only thing that matters, but it plays an important role and it’s kind of a big deal. Also, today, we have informal, alternative kinds of marriages or sexual access to other people than the permanent (by intention) marriage kind like nikaah: there’s mut‘ah, for example, which is often translated as temporary marriage but you should know that there’s a big question mark with the word “temporary” because it can range from a few minutes to literally 99 years, and it’s something that’s considered very very Shi‘I but it’s also something that Sunnis partake in and Sunnis did not always consider it haram or something unacceptable. Mut’ah is time-bound marriage that the woman can initiate too, btw [two thumbs up! Big deal!]. There’s zawaj al-misyar, or marriage in transit – it’s a travel marriage, where you marry someone temporarily while you’re traveling because you don’t have access to, let’s say, your spouse, and through a travel marriage, you end having access to someone that you’re not legally married to but you marry them temporarily and this spouse, the spouse that you get from a misyaar marriage, doesn’t have the same rights and obligations as a spouse through a nikaah does. And there’s zawaj ‘urfi, customary marriage, a religious marriage that’s not registered with the court and it may even be a secret marriage but you want sexual access to someone but you can’t afford to honor the social, financial, legal, practical obligations that come with a marriage.

Oh! Let’s talk about sexual desire now. Sexual desire is totes legit in the Qur’an, the hadiths, and the fiqh. And you can even desire someone you don’t have Islamic or legal access to, but that doesn’t mean you go and have sex with them. For instance, you might be married to person A and have sexual desire for Person B, but that doesn’t mean you go and sleep with Person B. (We’re not talking about same-sex relations here; we’ll do a separate episode on same-sex relations, which is coming up in a different chapter in this book.) That means that instead you go look at them once okay, cool, but then you go and have sex with someone you DO have sexual access to – like a spouse, or if you’re in the past, according to fiqh, the person you’re enslaving – (I don’t endorse this! I think this is absolutely immoral and unethical and unacceptable.) And having sex with your spouse, especially in this case, will be rewarded by God, and is a form of worship, since you’re doing it within the limits God has placed on you.

And speaking of sexual desire, the fiqh recognizes female desire, and so do Muslims and so does Islamic literature – ooh you should read this really book by Pernilla Myrne about basically female sexuality and female desire and even same-sex female desire and activity! I did an interview with her on the book, and I’ll put the link to the interview in the description of this video so you can go ahead and listen to it.

As for the punishment for zina, it’s equal in the Qur’an for women and men. 100 lashes. But it’s not equal for enslaved and free people – the punishment for an enslaved person who commits zina is qur’anically half that of the free person, which should tell you that the punishment for zina, including for adultery, can never be stoning to death. Not a qur’anic thing by the way. The Qur’an doesn’t mention stoning to death, but the hadiths do, and the assumption in the Islamic legal tradition has been that married people committing zina – or adultery in this case – are to be stoned, but non-married ones are to be lashed. Stoning someone to death is a biblical punishment for various offences, not necessarily or exclusively for sexual offences. Now since humans – I mean men here – decided that adultery warrants stoning as a punishment, they also had to come up with the specific guidelines for how that would work. So fiqh then gives us detailed and a very astringent set of guidelines for what counts as proof of adultery. So for example, there must be four eyewitnesses and only adult male Muslim people count as witnesses – don’t worry, this isn’t a Qur’anic thing – who must be able to testify to having witnessed penetration. It’s not just like ok two people were lying in bed together so we assume they must’ve had sex. No, you have to have literally physically witnessed penetration. The idea here seems to have been to completely avoid giving the punishment. And if they are found to be lying or if anyone accuses an innocent woman of zina, then the accuser gets almost the same punishment that a person who has committed zina gets in the Qur’an, 80 lashes.

Also, fun and significant fact here – even if a man sees his wife in bed with another man, he cannot take the law into his own hands, according to fiqh, and must produce 3 eyewitnesses to the act. And if he can’t, then it’s his word against his wife’s word, and the Qur’an tells us that if the wife says she didn’t do it by swearing four times, then she didn’t do it, and her word has to be taken here. And this even if the husband too swears four times that he saw it and that he’s not lying. Still the wife’s word is what counts in the Qur’an, not the husband’s. We’ll talk about female testimony in a different episode, but this is a huge deal, that the wife’s word is taken against her husband’s. The fiqh, however, #becauseofcourse, adds that the husband who is accusing his wife of adultery has the right to deny paternity of any children in such a case and is not required to take care of them; the woman is entirely on her own. And that’s of course because the men fiqh are obsessed with paternity and male lineage and maintaining male privileges through the father’s lineage like that, you understand. I have opinions about men who invent laws based on their personal whims and emotions and insecurities, but that’ll have to be a separate episode another time. Just know for now that we don’t have to trust the stuff that comes out of systems this desperately obsessed with male lineage.

Now let’s talk about the contemporary Muslim. I’m not gonna go into detail here, but the author talks about the implications of new technology, like DNA testing to determine paternity, and whether this is necessarily a good thing for women. Basically, one of the most influential things in Islamic ethics is the don’t ask, don’t tell policy, so basically if there’s no incriminating evidence to delegitimize – and I hate this word – a child, then don’t go searching for it. So the author explores some of the challenges and the challenging questions that arise from essentially combining two different systems – the historical Islamic legal system and a contemporary modern civil judiciary.

So as we can imagine, Muslims today are facing a crisis of sexual morality. The author does wonder if Muslims can do away with patriarchal and sexist limitations of both historical and contemporary double standards while also acknowledging that there needs to be some boundaries to sexual relationships. Basically, the existing laws that we have are sexist and classist and they need to be done away with and replaced with more egalitarian, less sexist – ideally non-sexist non patriarchal ones – but in such a way that we can still have boundaries in sexual relationships.

An obstacle to talking frankly and productively about illicit sex, like premarital sex, is that there’s a general refusal to even admit there’s a problem to begin with. The don’t ask don’t tell ethic that I mentioned earlier is both a good thing and a bad thing – good in that it discourages people from probing into other people’s private affairs in order to incriminate them; and bad in that it prevents people from having honest and necessary conversations such as those about the fact that many Muslims are not waiting until marriage to have sex. And because illicit sex is considered sinful, talking about it openly supposedly means that you are revealing someone else’s sins, and that’s not cool. But, the author notes, that only means that the problem will continue, because premarital sex IS taking place in high numbers, especially as humans tend to wait longer to get married today than ever before. And also, of course, the social (not Islamic!) double standard of, say, male virginity vs female virginity, means that the consequences of NOT talking about it openly and not taking it seriously are much worse for women than for men even if they are legally viewed as equals.

In the coda of the chapter, the author talks about some recent cases related to sexual ethics and “illicit sexual relations,” many of which focus on punishing women more harshly for breaking “Islamic legal rules” and as the author analyzes them, one thing that she says that I want to quote here is this: “Rethinking Islamic law without questioning its basic presumptions about male dominance will not take us nearly far enough” (p. 95). In other words, we have to acknowledge and do something about Islamic law’s basic presumptions about male dominance – which harm women in many, many ways women, such as when it comes to, say, the kids that they bear out of wedlock or in marriages that are not recognized by the state or by classical fiqhi Islam and of course in a lot of other ways, too.

Btw, the coda to this chapter is one of my favorites. I love the author’s writing style, and she has a very professional way of speaking and writing. Her tone is very professional. But I feel like in this coda, there are certain phrases and sentence that she writes – like “score another one for patriarchy” – that are so wonderfully done and that are so productive and necessary and make me blush.

Also, finally, one thing that I have to note here that the author addresses also is that Islamic law is actually very complicated both in practice and theory. So even as the scholars are creating all these, in many cases, very strict rules and guidelines, they weren’t necessarily applied in practice. But today’s Muslims have a very problematic and I wanna say simplistic idea of Islamic law, and it’s kind of a problem.

All right, I’ll stop here. Next up is a summary of chapter 5, which is on same-sex relations in Islam. Thank you all for watching. Please stay kind and stay feminist, and I’ll see you next time, inshaAllah!

Salaam!

Categories: Death to patriarchy

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