Voices of Islam (261 page)

SHARI‘A
BEYOND THE QUR’AN

Instances like this abound in classical interpretations of the Qur’an and persist in conventional modern interpretations based upon the classical herit- age, due to patriarchal assumptions that are ‘‘read into the text’’ at the most basic level. Such assumptions are largely unconscious, being part of the cul- tural worldview of the male interpreters, a worldview consistent with pre- Islamic practices and shared by other religious traditions in the Middle East. Islamic liberation theology (by women, homosexuals and other marginalized groups) seeks to critically specify these instances of patriarchal presumption. They endeavor to interpret the Qur’an in such a way as to free its ethical message from the limitations of former interpretation and implementation in the Shari‘a.

Muslim jurists built Islamic law, taking it upon themselves to judge acts without investigating the intentions behind them. They formulated norms and punishments to regulate sexual behavior with exclusive focus upon

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physical acts and anatomical organs. In general, they forbade homosexual acts between men, just as they forbade heterosexual penetrative sex with a partner without the legal relationship of a contract of marriage, ownership through slavery, or oral contract of temporary union (
mut‘a
as allowed by Shiite jurists though rejected by Sunnis). When it comes to homosexual acts, the laws in the Islamic jurisprudential tradition are not actually based upon the Qur’an, as will be discussed below. Far from explicitly forbidding homo- sexuality, the Qur’an arguably contains inferences to the existence of homo- sexual persons in the Muslim community. Explicating these hints requires interpretation, but so does ignoring them! Both hints occur in the Qur’anic discussion of gender segregation. Both are exceptions to a general rule that men and women should not freely mix if they are not related by blood, mar- riage, or a contract that can regulate their affairs.

The Qur’an gives a long and detailed list of the kinds of men with whom women can behave more freely: after listing relatives, it says ‘‘their women- folk, their slaves, or their followers among the men who have no wiles with women or children who do not recognize the sexual nakedness of women’’ (Qur’an 24:31). The ‘‘followers among the men who have no wiles with women,’’ preceded by ‘‘womenfolk’’ and followed by ‘‘children who do not recognize the sexual nakedness of women’’ suggests that these men (like heterosexual women or preadolescent children) have no sexual desire for women and are therefore exempt from the general rule of separation. Classical interpreters thought this verse applied to elderly men or impotent men, whom they assumed were exempt by fiat or age or anatomy. However, with the emergence of a modern social category of ‘‘gay men,’’ we should extend the interpretation to include them. If we do, we conclude that the Qur’an mentions gay men in an indirect but potent way, recognizing the unique characteristic that sets them apart from other adult men—their not sexually desiring women and therefore not being a threatening presence in their intimate company—with no condemnation.

In a similar way, there is a verse that hints at the existence of lesbian women in the Muslim community. The Qur’an addresses men on issues of gender separation and the preservation of domestic privacy for women: ‘‘Yet if your children have reached sexual maturity, then require them to ask permission before entering, like those mentioned before, for in this way God clarifi

for you God’s signs, and God is a knowing One, One most wise. Of the women, those not reproducing who do not wish for intercourse, it is no harm for them to lay aside their clothing as long as they do not overtly display their beauty [in the company of men]’’ (Qur’an 24:60). The key term is ‘‘those not reproducing’’ (
al-qawa‘id
). It describes fertility, meaning withdrawn from reproductive activity, like a field left to rest and not sown with seed or a date palm not pollinated. The Qur’an clarifies this term, saying that such women do not wish for sexual intercourse, which is the same word in Arabic for marriage (
nikah
). Classical interpreters described such women as elderly,

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beyond the capacity to become pregnant. However, we know from sexologi- cal research that postmenopausal women are still sexually active and often desire intercourse. Therefore, the verse seems to invite a deeper interpreta- tion. The reason such women are not reproducing is because they do not desire sexual intercourse with men, due to their sexual orientation rather than merely their supposed lack of fertility or libido.

Such a sexuality-sensitive interpretation accords with both reason and the literal meaning of the scriptural text, and therefore according to classical principles of Qur’anic interpretation or
tafsir.
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It deserves recognition as one of several possible meanings, all equally valid. From this perspective, the Qur’anic verses conventionally held to condemn homosexual acts do not actually address homosexuality, and other verses conventionally held to address the nonsexual elderly actually refer to the presence of homosexual members of the Islamic community in a non-condemning way. Without a concept of homosexuality, a psychological theory of sexual orientation, one misses these inferences. They have gone unnoticed by classical Muslim interpreters and are deliberately ignored by modern interpreters who are Neo-Traditionalists and assert unsophisticated notions of ‘‘human nature.’’

Such a theory of homosexuality is available to us today, in ways that were not articulated in the past, either in the West or in Islamic societies. We need to examine the origin of the term homosexuality itself. It was coined first by doctors to diagnose an ‘‘illness’’ in the late nineteenth century and was quickly used by homosexual advocates to argue for decriminalization of par- ticular sex acts and social justice for marginalized minorities. The invention of the term ‘‘homosexuality’’ occurred amid changes in social organization and economic life associated with capitalism and industrialization, which expanded the potential for individualism, buttressed by a liberal ideal of human rights. It is nestled within a series of revolutions: a bourgeois revolu- tion against aristocracy in the late eighteenth century, a workers’ revolt against unfettered oligarchy in the mid-nineteenth century, women’s opposition to male superiority in the early twentieth century, a nonwhite uprising against colonial domination in the 1940s, and a youth rebellion against patriotic norms in the 1960s. These overlapping revolutions allowed homosexuals to assert their humanity and rights, first in the early twentieth century in Europe (until snuffed out by fascism) and later in America from 1969. The invention of the term homosexuality helped shift the terms of discussion from the Church’s rhetoric of ‘‘sodomy’’ and the police’s rhetoric of ‘‘buggery’’ to the psychologist’s rhetoric of ‘‘sexual orientation.’’
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With cycles of success and failure, legal recognition and protection of homosexuals has taken root in certain areas (especially Scandinavia and the Netherlands, followed by other nations in Continental Europe, Britain, and Canada). Other areas where Catholicism or Evangelical Protestantism remains a force in political life, like the United States and southern Europe, have lagged a bit behind. Similarly, Muslim majority nations in which

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secularism is strong (either in the form of anticlericism like in Turkey, or in the form of pluralistic government above multiple religious communities as in Lebanon, India, and Indonesia) are moving slowly toward decriminalizing homosexual acts and allowing homosexual people to build civic organiza- tions for legal protection and human rights. All these cases, Euro-American or Islamic, have two factors in common: economic and social development that foster individual autonomy, and political and cultural development that keep religion separate from government.

These replicate the changes in the social order in Western Europe and North America which were necessary preconditions for the emergence of a concept of homosexuality: economic prosperity, urbanization, and the emergence of the nuclear family so that individuals could assert a greater degree of individuality. They also include political liberalization, so that citizens are granted rights as autonomous agents outside of their family, communal, or religious institution. These social changes are reinforced by greater depth of technical expertise in medical and psychological research that offer a more ‘‘secular’’ definition of human nature outside the purview of traditional authorities, whether these are tribal leaders, patriarchal house- holds, or religious scholars.

This history explains how the term homosexuality fi came into use to describe an emerging modern concept that was not available to classical Muslim interpreters. However, it would be wrong to assume that homo- sexuals did not exist before there was a clinical name for them. Homosexuals have always existed as a minority within every cultural group, even if an abstract term like ‘‘homosexuality’’ was not there to label them. There may have been different social constructions as roles for homosexual people (priest, artist, seer, joker, heretic, criminal to name just a few examples), and such social constructions change over time and vary between commun- ities, yet the essential psychological element, difference based on sexual orientation and expression, was present in every place beneath the variety of names and concepts. It is essential to bear in mind that what modern researchers mean by ‘‘homosexuality’’ is not at all what classical Muslim scholars meant by ‘‘sodomy’’ (
liwata
).
Liwata
denoted anal penetration as an act and said nothing about the intention, the sexual orientation, or the inner disposition of the person performing the act.

Do contemporary Muslim scholars recognize this difference? How do they react to these social changes and their scientific challenges to religious ortho- doxy? We can observe a ‘‘Neo-Traditionalist’’ reaction that is very powerful today, that combines traditional Shari‘a rhetoric with more modern secular denunciations without really accepting contemporary scientific research. One such scholar from the Deoband Academy, Maulana Zahir al-Din, wrote a book against homosexuality which he titled
Suicide,
claiming it to be ‘‘the first scholarly book on un-natural sexual desire, meaning the act of Lot’s people, and the hatefulness and corruption of its proponents, researched in

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the light of the Qur’an and Prophetic example and history and medicine.’’ The title literally means ‘‘killing one’s future progeny’’ and refl the modern patriarchal analysis that homosexuality is predominantly the lack of heterosexual procreation and amounts to killing one’s family line, and is therefore ‘‘against the civilizational way of life’’ promoted by Islam. How- ever, Zahir al-Din freely mixes sacred and secular arguments, as when he writes that ‘‘It is not permitted in any revealed religion, that is not in Islam and not in any other religion, that a person can fulfill sexual desires with a person of his own sex, meaning a man with another man or a woman with another woman .... It is the strangest, most bizarre and most anxiety- provoking thing in this world for a man to choose to fulfill his sexual desire with another man, and we should understand the extremes of this as a kind

of insanity. This is because it is an act against human nature (
khilaf-i fi rat fi‘l
) that is not just about sexual appetite but also about satanic delusion.’’
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Such Neo-Traditionalist scholars reify Shari‘a norms and adopt
ad hoc
notions of ‘‘nature’’ from the nineteenth century that support patriarchal presumptions, while ignoring the contemporary social and scientific research that places them in question.
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Such reactions are insufficient and disappointing. Scientific advances chal- lenge Muslims to rethink their tradition and open up new ways of asserting the relevance of the Qur’an to contemporary realities. To address these opportunities, religious scholars (
ulama
) would have to be open to sharing authority with ‘‘secular’’ scholars and scientists. If they were confi and fl with an inner strength, they could do this; but alas, they are stiff and fragile with a sense of embattled defensiveness that closes their minds and rusts their hearts. This attitude does not live up to the Islamic tradition of the past, which never accepted a cleavage between scientifi discovery and scriptural revelation, as both were rooted in the sincere application of God’s gift of reason. Contemporary Neo-Traditionalists are more concerned to ‘‘defend the Shari‘a’’ than to sincerely confront the challenge of the Qur’an, and this is the cause of their rigidity. To be very honest, I find this posture one of idolatry, for they have raised the Shari‘a, a product of human hands and minds, to the level of the Qur’an which is God’s speech to human- kind. The question for critical believers is whether the rulings enshrined in the Shari‘a represent accurate conclusions from the Qur’an and justice- embodying extensions of the Prophet’s example, or rather represent the all-too-human prejudices of patriarchal jurists in generations after the Prophet passed away.

The Shari‘a punishments for homosexual acts, both between men and between women, are well known and much debated. However, it is seldom acknowledged that the Shari‘a punishments are not derived from the Qur’an, no matter what interpretation one accepts of Lot and his tribe. Even before hadith reports attributed to the Prophet were collated and collected into books, the punishment for men having sex with other men had already been

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decided, not by the Prophet himself but by some of his followers. The issue of deciding which hadith reports are accurate and authentic is very difficult, and then deciding whether they have legal force is quite complex; reviewing these reports for authenticity is the key to reforming the Shari‘a from within. Despite the fact that this was an invaluable activity by Islamic scholars in the past and is essential to the livelihood of the Shari‘a as a system, it is now considered taboo, and anyone who brings up the subject can expect swift denunciation by guardians of the status quo.