Sexual Ethics in Islam (31 page)

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.

1. 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 verses may make a distinction between permissible sex with war captives and sex with female slaves obtained in another fashion. On the general acceptability of sexual access to captured women in the ancient Mediterranean world, see Azam, “Sexual Violence in Islamic Law.”
   

2. Nor can a woman (who cannot have sexual access to her male slave as a “concubine”) marry her own male slave.
   

3. On marriage to female slaves, see Ali, “Money, Sex, and Power,” espe- cially chapters 2 and 5.
   

4. In addition to Mattson, “A Believing Slave is Better than an Unbeliever,” see Brockopp,
   Early Maliki Law
   , pp. 192–205 on the early development of regulations surrounding the
   umm walad
   .
   

5. Bayman,
   The Secret of Islam
   , p. 173. Emphasis in original. Note that he makes a point about the exemplariness of the Prophet, then segues into the numerical limit of four, but does not address the Prophet’s exemp- tion from that limit.
   

6. Algosaibi,
   Revolution in the Sunnah
   , p. 10.
   

7. 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 the phrase that appears in Algosaibi’s English essay as “captured some con- cubines” as “received captives from among the Arab captives.” There is a 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,
   

   170 sexual ethics and islam
   

   Sex and Society in Islam
   , in a series of hadith, also without any comment on its implications for any matter beyond contraception.
   

8. Algosaibi,
   Revolution in the Sunnah
   , pp. 37–8.
   

9. Algosaibi,
   Revolution in the Sunnah
   , pp. 40–41.
   

10. 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 hoped to receive.
    

11. Friedmann,
    Tolerance and Coercion in Islam
    , p. 177 (writing on a differ- ent matter). This did not always go unrecognized by earlier jurists.
    

12. The exception the jurists sometimes made for those too young to men- struate implies, of course, the permissibility of having sex with them.
    

13. See, for example, p. 529, from the section on marriage, which contains several untranslated passages.
    

14. Keller,
    Reliance of the Traveller
    , ix.
    

15. Keller,
    Reliance of the Traveller
    , p. 459.
    

16. 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 the verse discussing “what your right hands possess.” On the interconnec- tions between polygamy and slavery, see Hasan, “Polygamy, Slavery, and Qur’anic Sexual Ethics.”
    

17. Rahman,
    Major Themes of the Qur’an
    , p. 48; see also Mashhour, “Islamic Law and Gender Equality,” pp. 568–9.
    

18. 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 is that 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.
    

19. 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 may have sexual relationship [sic] with his female slave without marriage are totally mistaken.”
    

20. Mernissi,
    The Veil and the Male Elite
    , esp. p. 139; Khadduri, “Marriage in Islamic Law,” p. 217, makes the same point a decade earlier, regard- ing polygamy specifically. He argues that “Because he was a religious reformer who was principally interested in preaching a belief in one God – a revolutionary belief principle in pagan society – the Prophet Muhammad did not go so far as to seek a complete change in the social system. The Prophet felt that advocating radical change might adversely affect the spread of his religious teachings; therefore, he sought to effect gradual change in the law.” See also Wadud,
    Qur’an and Woman
    , p. 9.
    

21. 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 it cannot be unjust (if God is just). For a more thorough exploration of these issues as they were engaged by Muslim theologians and jurists, see Ormsby,
    Theodicy in Islamic Thought
    and Khadduri,
    The Islamic Conception of Justice
    , pp. 39–77.
    

    notes 171
    

22. This view, linked to Hasan al-Basri (Khadduri,
    The Islamic Conception of Justice
    , pp. 41, 108) both reflects a repeated Qur’anic sentiment (see chapter 7) and exists in tension with views about God’s omnipotence, again raising the question of why God allows
    zulm
    to exist in the first place, and whether doing so makes God unjust.
    

23. 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 and women 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 ethnographer notes for Morocco, “deviation from norms was more limited in the past;” further, “there has recently been some change in the norms them- selves” regarding conduct. David, “Changing Gender Relations in a Moroccan Town,” p. 210. For a succinct assessment of the contemporary Moroccan situation, see Dialmy, “Moroccan Youth, Sex and Islam.”
   

6. Nikah
   , the term used by the jurists for the marriage contract, literally refers to sexual intercourse, so closely is marriage linked to sex. The treatment of this term in a passage from Haskafi’s
   Durr-ul-Mukhtar
   (pp. 2–3) reflects this ambiguity: according to the Hanafi view cited, in some 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 important than the “what” – a disapproved act such as anal intercourse or sex with a menstruant who is a lawful partner is much less serious than an approved act with a forbidden partner.
   

8. Sahih Muslim
   , K. al-Nikah, “He who sees a woman, and his heart is affected, should come to his wife, and should have intercourse with her,” trans. Siddiqi, vol. 1–2, pp. 704–5. One account includes, in his subsequent 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,” in Mutahari, “The Islamic Modest Dress,” where it is cited to al-Hurr al-Amili,
   Wasa’il al-Shi‘ah
   (no further publication data provided). See also “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.
    

    172 sexual ethics and islam
    

11. Yalom,
    A History of the Wife
    , p. 22, continues: “Although heterosexual marriage was the only legally recognized form of couplehood in ancient Greece, 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, “Classical Greek 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 other hand, were segregated from men other than their husbands, and severely punished if caught with a lover.” (p. 23) Yalom does not specifically address the possibility of married women taking female lovers or making sexual use of their female slaves. See Skinner,
    Sexuality in Greek and Roman Cultures
    , pp. 139–40, on an Athenian adultery case.
    

12. Treggiari,
    Roman Marriage
    , pp. 312–3. Notably, Treggiari attributes the later European double-standard in sexual matters to the influence of Islam, not Rome. Yalom (
    A History of the Wife
    , pp. 31 ff.) also addresses the issue of adulterous wives in Rome. Skinner (
    Sexuality in Greek and Roman 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 adultery applied 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, “Biblical Models,” 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 again here 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.

1. 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 the testimony of four witnesses. Abu Huraira is the prime reporter of several traditions denigrating toward women discussed in chapter 1.
   Sahih Bukhari
   (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 similar account appears in
   Sahih Muslim
   .
   

2. Tirmidhi, as quoted and translated by Rizvi in “Adultery and Fornica- tion in Islamic Jurisprudence,” pp. 271–2.
   

3. The theoretical writings of the jurists were not always followed in prac- tice; courts were more willing to entertain claims regarding
   zina
   and
   

notes 173

individuals concerned with family honor occasionally acted extrajudi- cially when confronted with suspicious behavior. According to Leslie Peirce, in her study of the Ottoman court of Aintab, “The law of the jurists did not seriously envision active prosecution of illicit sex; rather, it was concerned with maintaining social harmony in the face of what was tacitly acknowledged as the inevitability of
zina
.” See Peirce,
Moral- ity Tales: Law and Gender in the Ottoman Court of Aintab
, for interesting discussions about how charges of sexual misconduct might play out in practice. The quote is from p. 354. She goes on to note, though, that though it might not be expected, based on the doctrines of the jurists, “Deliberation about
zina
in court was possible because in practice judges were able to relax the stringent rules of witness set out in juridical treatises and manuals, admitting circumstantial and hearsay evidence.” (p. 355)

21. Q. 24:6–9.

1. 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 arise such as whether a woman who has illicit intercourse is counted a virgin or
   thayyib
   (non-virgin, previously married) for the sake of determining her consent to a subsequent marriage.
   

2. This approach is not limited to premodern texts. Kamal,
   Everyday Fiqh
   , vol. 1, pp. 79–80, discusses the necessity of ablution after sex with males of 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 in the genital part of the wife.” (p. 79)
   

3. Sahih Bukhari
   , K. al-Fara’id, “The child belongs to the owner of the bed,” trans. Khan, vol. 8, pp. 489–90;
   Sahih Muslim
   , K. al-Nikah, “The child 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 also Rubin, “‘Al-walad li-l-fi and Van Gelder,
   Close Relationships
   , p. 91, who cites this story as it appears in al-Razi.
   

4. Legal fictions also have limits; the story appears in Ibn Hanbal’s responsa (see Spectorsky, ed. and trans.)
   Chapters on Marriage and Divorce
   , 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 an illicit union with a woman. While some – al-Shafi‘i is known to hold this view – hold that there is no legal relationship between the man and his biological daughter that would prohibit such a union, Ibn Hanbal briefly alludes to the case of Sawda discussed above. See Van Gelder’s summary of this debate in
   Close Relationships
   , pp. 90 ff.
   

5. The opposition to the test from some contemporary Egyptian jurists stems from precisely this distinction. On the relationship between “pater” and “genitor” in pre-Islamic Arab custom, see Van Gelder,
   Close Relationships
   , pp. 19–20. He makes the point that in “traditional Islam” “biological parenthood” took on a greater importance than “dominance and possession” which were key components of paternity. However, the continuing importance of the dictum that “the child belongs to the bed”
   

   174 sexual ethics and islam
   

   suggests that he may be overstating the relevance of biology.
   

6. Of course, there is still the social issue of imputations surrounding honor.
   

7. Moosa, “The Child Belongs to the Bed,” on illegitimacy in South Africa, p. 174.
   

8. Nomani,
   Standing Alone in Mecca
   , p. 295. This “Bill of Rights” was republished (pp. 155–6) along with an essay by Nomani, “Being the Leader I Want to See,” in Abdul-Ghafur,
   Living Islam Out Loud
   . For the mosque Bill of Rights, see
   Standing Alone in Mecca
   , p. 293 and “Being the Leader I Want to See,” pp. 153–4.
   

9. See chapter 6 for discussion of another example where a self-identified religious authority makes a declaration that ignores the dominant stance of all Sunni
   madhahib
   even as it echoes majority Muslim sentiment.
   

10. 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 do not concern themselves “with sexual relations between consenting adults in private.” (“Regulation of Sexual Behavior under Traditional Islamic Law,” p. 64) Leaving aside the question of whether Coulson’s characterization of “most Western legal systems” is accurate, he is cer- tainly correct with regard to the theory: consensual relationships are a matter of divine regulation, though if they do not come to anyone’s attention, they are not a matter for government intervention.
    

11. AmericanMuslim, in “Comments: The Fatima Incident,” comments page to Mohja Kahf, “Sex and the Umma: The Fatima Incident,” at
    http://www.muslimwakeup.com/sex/archives/ 2004/11/the_fatima_inci_ 1.php#more, last accessed 04.19.06.