Sexual Ethics in Islam (11 page)

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 the authenticity of Islam with regard to rules regulating family life and sexuality has meant that in matters associated with women and family, regulations are still purportedly “Islamic.” Muslims living someplace where there is a civil system of marriage and divorce with no pretensions to being based on a religious law face different challenges. In the United States, courts deal

lesser evils: divorce in islamic ethics 37

routinely with divorces among Muslims; divorces are granted to both wives and husbands on the same grounds available to any other 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 marriage structures, including who has the right to dissolve the marriage and with what financial claims. Despite claims by a number of feminist scholars and women’s advocates to the contrary, inequities in divorce law – which many Muslims would agree exist – are not merely read into the Qur’anic text by misguided or even 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 is deeply embedded in Muslim marriage as a whole system.

Perhaps a sensible marriage and divorce structure for Muslims living in nations such as the United States, where dower is not a customary part of marriage practices among the broader population and where all divorces must go through the courts, might exclude both dower and all forms of extrajudicial divorce – claims that are closely linked in traditional jurispru- dence. It would be possible to make financial arrangements as well as other household contributions the subject of a prenup- tial agreement validated by the American legal system, and insist that civil marriage and divorce are the only licit forms of rela- tionship. If marriage is structured in such a way that it can be dissolved only by a judge, whether by mutual consent or other- wise, that would eliminate much of the dual-system conflicts over the validity of unrecorded divorce pronouncements in numerous Muslim-majority countries. This is not entirely unheard of: one lesson of Qadi Khan’s case, in addition to the one about the male abuse of authority, is that state authority can override 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 participate in
shari‘a
tribunals or parallel mediation/arbitration systems.
27
Such tribunals, though undoubtedly well meant, would likely be disastrous for women’s rights, even leaving aside the fact that

38 sexual ethics and islam

there has not been substantive discussion as to how to guarantee the qualifications of those assigned to arbitrate. At best, women might get a sympathetic interpretation of doctrines understood to 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 individual Muslims 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 certainly possible to write contracts that enshrine religious rights and duties for spouses – at least financial ones – in a way that makes them enforceable by Western courts.
30
Individuals should be free to negotiate those contracts, with as much information as possible about both classical and reformist interpretations of rights and obligations. However, if consenting to participate in Islamic arbitration becomes possible on a wide scale, it will also become a mark of faith, and those who choose not to will have to contend with accusations of not being good Muslims, when they may simply not believe that a
shari‘a
court is capable of provid- ing a realistic and appropriate rendering of Islamic principles into a just verdict in a context radically different from that where the law was first formulated.

Setting aside the influence of human historical factors on the development of the law, there is also the question of the contextuality 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 as divorce, that are explicitly referred to in the Qur’an. But are the verses on divorce meant to apply in every possible situation, or are they specific in some way to seventh-century Arabia? If they can be modified, on what basis should one do so, and how far can one go in altering specific rules? What is taken as common sense by many ordinary Muslims (the twenty-first century West is quite different from either the seventh-century West or the con- temporary Muslim world and hence rules should be different) is still controversial for numerous Muslim leaders and scholars.

3

“What your right hands possess”: Slave Concubinage in Muslim Texts and Discourses

A free man may marry four free women and female slaves, not more, and he may take as many concubines as he wishes from among his female slaves. If a man has four free [wives] and a thousand concubines and wants to buy another [concubine] and a man reproaches him for that, it will be as if [that man] had committed unbelief. And if a man wants to take 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 save her 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 twentieth centuries, marriage was not the exclusive mode of licit sexual relationship in most Muslim societies. Instead, throughout Islamic history, slave concubinage was practiced by those men who could afford it. Though several features of the finalized regu- lations governing the possession and use of female slaves were unique to Muslims, the use of female slaves as sexual partners was an accepted practice in most of the ancient Mediterranean and Near Eastern world where Islam originated. Indeed, in seeking to establish friendly relations with the Prophet Muhammad, the Byzantine commander of Alexandria sent him two enslaved sis- ters as a gift, along with a donkey and other goods. Medieval Muslim tradition records that the Prophet took one of these young women, Mariyya, as his concubine, eventually freeing her after 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

40 sexual ethics and islam

a powerful leader demonstrates the general acceptance of women and girls as sexual commodities in the ancient world. In pre-Islamic Arabia, as well, female captives were frequently used as sexual partners, a practice agreed by early Muslim interpreters to be sanctioned in the Qur’an’s repeated references to the permissibility of men’s sexual relations with women “that their/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 used to denote the slaves themselves (“property of the right hand”). Unfree women were also called
ama
3
(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 sexual relationships. Concubines often received additional privileges – better quality food and clothing, and usually exemption from duties of household service – and were subject to additional restrictions, 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 any of his (unmarried) female slaves. It was also insecure: a concu- bine could be freed and married by her owner, or she could be sold off, so long as he had not impregnated her.

While the Qur’an accepts the notion of men’s sexual access to some unfree women – whose social, if not legal, status may have been ambiguous, according to Ingrid Mattson
5
– it does not explore the possibility of large-scale concubinage, nor was such practiced in the first Muslim community. Some modern authors have argued that only through marriage did sexual access to captive or enslaved women become permissible, but this is not the view that the medieval jurists took, nor, if one accepts the hadith sources as historically accurate, was it the practice of the first Muslim community; records show that the Prophet as well as a number of Companions and Successors had a concubine or two. However, after the Arab conquests of the seventh and eighth centuries, when the wealth of the Muslim elite increased dramatically, rulers mimicked their non-Muslim

“what your right hands possess” 41

Sassanian predecessors, keeping dozens if not hundreds of female slaves, of whom many were used for pleasure.

The widespread availability of female slaves as sexual objects had dramatic implications for the development of Muslim 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-century jurist al-Shafi‘i voiced the consensus legal view when he stated that a man could take as many concubines as he wished, since God did not restrict this in any way, while God forbade taking more than four wives.
7
This sentiment was conventional juristic wisdom for a millennium, as evidenced by the remarks of Hanafi Mufti of Damascus, Muhammad ‘Ala al-Din Haskafi, in the late seventeenth century, to the effect that suggesting that a man with a thousand concubines should not take another was tantamount to unbelief.

Though large-scale ownership of female slaves for sexual use was an elite-only practice, slavery was a social fact in most of the Muslim world with many slaves employed in domestic service as well as commerce from origins of Islam until abolition 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 Muslim world.
8
This was not due to any prohibition against such forms of slave labor, but rather to economic and geographical factors. This does not mean that Islamic slavery was not harsh, as some apologists have argued, or that masters were not sometimes brutal to their slaves. Paradoxically, slavery did not always equal low 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 tremendous influence and amassed considerable wealth in the later centuries of the Ottoman empire.
9

Slavery in Muslim societies was not merely a medieval practice; it has lingering contemporary effects, especially in cer- tain parts of Africa and the Gulf states, regions that were the

42 sexual ethics and islam

world’s last to outlaw slavery, with Saudi Arabia becoming the final nation to do so in 1962. Vestigial effects of domestic slavery persist 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 as maids and nannies have little recourse against sexual coercion or harsh beatings; in some cases, those who have escaped and sought refuge with police have been forcibly returned to their abusive employers.
11
Such women are not legally enslaved, and they 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 law enforcement officials to respond to complaints of maltreat- ment, they are particularly vulnerable to abuse. In some African nations such as Mauritania, actual slavery continues despite repeated declarations of abolition, the last in 1980; according to one recent report, 90,000 black Mauritanians remain essentially enslaved to Arab/Berber owners. In the Sudan, Christian captives in the ongoing civil war are often enslaved, and female prisoners used sexually, with their Muslim captors claiming that Islamic law grants them permission.
13

Islamic law is not the only salient frame of reference in these cases, though, even if it is sometimes used as justification for enslavement and slaveholding. Although premodern jurists permitted slavery without qualms, they absolutely forbade the enslavement of other Muslims. Contrary to this principle, Muslim captives, usually from other ethnic groups, are sometimes enslaved in ongoing civil or tribal conflicts; Mende Nazer, a Sudanese Muslim, recounts her own experiences of capture and enslaved domestic labor in the Sudan and the U.K., where she eventually escaped her captors, in a chilling memoir.
14
Though most common in Africa, it occurs elsewhere; one scholar has suggested that among the Taliban’s “atrocities” toward Afghani Shi‘a was “the enslavement of Hazara women as concubines.”
15

The existence of actual and quasi-slavery is by no means unique to the Muslim world; slavery and slavery-like practices are found in numerous nations world-wide.
16
Further, they are