Sexual Ethics in Islam (5 page)

It is an obvious point, but it bears stating directly: in making 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 exception to this rule; like contemporary Muslim thinkers, they could not help but be influenced by their own sense of what was right and wrong, natural and unnatural. In engaging with Muslim texts of the past, it is important to consider the ways in which their authors’ base assumptions differ from those of the present. One useful indicator of the distance separating a contemporary reader from a past audience is the hierarchy of sexual acts that twelfth-century scholar al-Ghazali, whose writings on sexuality have been frequently quoted by modern authors, presents in his magisterial work
The Revivification of the Religious Sciences
. Al-Ghazali counsels a man who cannot afford to marry a free woman 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. Although
marriage
to someone else’s slave is problematic, al-Ghazali simply assumes the permissibility of a man’s sexual use of his own female slaves. Intercourse with a slave who has no opportunity to grant or withhold consent is morally better than mastur- bation, which cannot involve coercion, or illicit sex with a willing woman. Many Muslims today find it simply unintelligible that sex with a slave acquired for that purpose would be preferable to sex with a consenting partner to whom one had no legal tie.

I will return to the complicated subject of consent in chapter 9, but want to stress at this point that while I do not believe consent and mutuality are fundamentally incompatible with an Islamic ethics of sex, these values were not prefigured in premodern Muslim texts in a way satisfactory for the twenty- first century. Although there are important lessons to be learned from the writings of premodern Muslim scholars, a great

introduction xxvii

psychic distance separates Muslims today from the circum- stances of past centuries when authoritative doctrines were formulated. Given this very real dissonance
34
between the cultural assumptions undergirding the classical edifices of jurisprudence and exegesis and the modern notions influencing Muslim intellectuals and ordinary people everywhere, even those who consider themselves conservative or traditional, there is an acute need to explore vital themes and connections through a variety of texts.

One “modern” value that is criticized in some discus- sions of the Muslim heritage concerning sex is prudery. Muslims have often been self-congratulatory about the heritage of explicit discussions of sex in legal and literary works, without recognizing the pervasive nature of androcentric and even misogynist assumptions in those texts. The presence of erotica in Muslim literature, as well as the positive valuation of sexual pleasure in authoritative sources, does not resolve the problem of the double-standard inherent in this literature; texts focus on men’s needs and desires.
35
Even sensitive scholars can overlook these dynamics, which are deeply ingrained in the tradition. When the “Sex and the Umma” section of the website Muslim WakeUp was launched in early 2004, the site editor solicited articles from Muslim scholars in support of the endeavor.
36
One essay quoted a ribald joke attributed by Ahmed al-Tifashi to the Prophet’s cousin and son-in-law, the fourth Sunni caliph and first Shi‘i Imam,‘Ali b. Abi Talib in a work containing “the amus- ing stories, entertaining poems and flagrant incidents involving sexual 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 the prudery that characterizes contemporary Muslim discussions of sex 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. ‘Three feet!’ declared Ali,‘that ought to have been enough – at most she needs to able to take nine inches!’” The article immediately garnered comments from readers when it was posted, with the majority aghast at the intimation that ‘Ali could have possibly

xxviii introduction

said such a thing. Did these replies express outrage, disgust, or even mild concern at the idea that ‘Ali could have referred to a woman in such an objectified manner, reducing her to a sexual receptacle? Hardly: what shocked readers was the scandalous assertion that ‘Ali could have joked in such a familiar manner with a woman who was not a close relation to himself ! My point is that it is not merely contemporary prudery that Muslims con- cerned with sexuality have to combat; despite valuable elements in premodern texts, including a willingness to be explicit
and
have a sense of humor about sexual matters, there are deeply troubling 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 be forthright in stating my opinions, even when I was inclined to be more circumspect, in an effort to move discussion of issues in sexual ethics beyond critique and toward possible resolutions of difficult problems. Where I have indicated possible directions for further thought, my suggestions should be taken as tentative steps in the direction of a just ethics of sex, not as an attempt to formulate a comprehensive program of religio-legal doctrine or to 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 high standards, there are differences of opinion as to what is right and wrong in given circumstances.”
38
It is my sincere hope that this book will be taken as an invitation to conversation and fruitful debate.

1
Marriage, Money, and Sex

The husband should go to his wife once every four nights. This is fairest, because the [maximum permissible] number of wives is four. One is therefore allowed to extend the interval up to this limit. It is best that the husband should increase or decrease the amount of intercourse in accord- ance with his wife’s need to guard her virtue, since the preservation of her virtue is a duty of the husband. If the woman’s claim on intercourse has not been fixed, this is because of the difficulty of making and satisfying such a claim.

Al-Ghazali,
Book on the Etiquette of Marriage
1

After the first time, intercourse is his right, not her right.

Radd al-Muhtar
, early nineteenth-century Hanafi legal text
2

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 obligates the husband to pay his wife a dower, that a Muslim husband bears the sole burden of providing for his wife and household, and that Muslim women may only marry Muslim men. Yet even Muslims who assiduously affirm these regulations do not always follow them. The gap between expressed doctrine and practice is perhaps largest in Western nations, especially the United States, my focus in this chapter. Although there are no hard figures available for American Muslim practices, anecdotal and other evidence suggests that dower continues to figure in most mar- riages of Muslims despite its unenforceability as a matter of civil law and the fact that it often remains unpaid. The majority of

2 sexual ethics and islam

American Muslim women contribute materially to their own support and that of their households, as many have done histor- ically and do elsewhere, the accepted gendered allocation of marital rights and responsibilities notwithstanding. And, although “the prohibition to give Muslim women in matrimony to unbelievers ... is one of the strictest and least disputed pro- hibitions in Muslim law of personal status,”
3
the marriage of Muslim women to non-Muslim men occurs in the U.S. with some regularity, though not nearly as frequently as the marriage of 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 marriage regulations to fit prevailing legal, social, and cultural norms. These norms are not uniform even within the subset of the world’s Muslims who live in the United States. African- American Muslims constitute the largest single ethnic group of Muslims, followed by Asian, Arab, and African immigrants and their descendants. These larger groups are supplemented by sig- nificantly smaller numbers of white and Latina/o converts. Most are Sunnis; some are Shi‘a. Marriage practices and ideals vary between and within these communities, but all must confront the relationship between civil law and religious obligation. Choices about which religio-legal precepts to observe and which should be allowed to slip into disuse are not always logical or consistent, and may have unanticipated results for individual Muslims or their communities.

This chapter considers dower, the regulations governing spousal support and sexual availability, and the prohibition of intermarriage between Muslim women and non-Muslim men. I suggest that the arguments used by Muslim thinkers, and often adopted by ordinary Muslims, to justify continued adherence to certain classical rules are incompatible with other commonly held ideas about marriage. Further, none of these regulations takes into account the vastly different context in which Ameri- can Muslims live and marry. I do not attempt to construct legal arguments in opposition to standard views, but rather to cri- tique the way in which the views are reproduced and defended.

marriage, money, and sex 3

Ultimately, I suggest that reconsideration of dower, spousal sup- port, and intermarriage provides one possible way of thinking about a new structure for egalitarian marriage that bypasses the patriarchal presumptions of these rules and avoids becoming mired 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 practice throughout human history, though with dramatic variation in who pays, how much they pay, and who receives the cash or goods exchanged. Sometimes gifts are reciprocal; at other times, the transfer is unidirectional, either dowry paid to the husband by the bride’s family or bride price paid to the wife’s family by the husband and/or his family. Marriage and dower practices 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 family in exchange for considering her offspring part of the husband’s tribe rather than that of her father and brothers. The Muslim dower (
mahr
or
sadaq
), paid to the wife rather than her family, is usually regarded as a modification of this practice.
7
(Numerous authors cite this shift as proof of Islam’s liberatory stance toward women.
8
) There is some evidence suggesting that the
mahr
and the
sadaq
, terms used interchangeably by classical jurists, were originally distinct forms of compensation, with the latter going to the wife herself. On this view, dower payment to the bride would not be an Islamic innovation but rather an instance of the way that “Islam selectively sanctioned” certain Arabian tribal practices “while prohibiting others.”
9
In any case, Islamic rules definitively allocated the money to the bride, although under certain circumstances fathers were allowed to receive it and spend it for a daughter’s trousseau. Among Muslims, dower has frequently been an important part of property arrangements.
10
How significant it was or is in practice has depended on the wealth of the parties; whether the dower is in cash, in kind, or in immovable property; and whether it is paid up front, deferred to

4 sexual ethics and islam

death or divorce, or split between prompt and deferred. When the deferred portion of the dower is set at a sufficient amount, it may also compensate women for some of the risk inherent in marriage when men have or have had unrestricted rights to divorce with no long-term liability for alimony; under most cir- cumstances, a wife is only entitled to three menstrual cycles worth of lodging and maintenance after divorce.
11

Much modern Muslim discourse, from neo- traditionalists and feminists alike, praises dower as a source of economic security for women and a token of a husband’s will- ingness and ability to provide. This rhetoric is pervasive even in the United States, where most Muslims marry according to civil law. Dower persists in the vast majority of American Muslim marriages; 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 dower amount at marriage, because religious authorities are fre- quently certified to perform marriages recognized by American law. However, following through on enforcement of dower obligations in the wake of divorce is much less common, in part because 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 dower agreements that do not meet standards for enforceable con- tracts, and the fact that U.S. courts have proven ambivalent in their treatment of dower obligations.
12
The practical impact of these factors belies the rhetoric about dower’s importance as a safety net for women, and as an instance of the generous rights Islam “guarantees” women.