Male. Female. Heterosexual. Marriage.
Transgender. Hermaphrodite. Neutrois. Half Form. Homosexual. Bisexual. Pansexual. Asexual. Intersexual. Gay Marriage. Open relationship. Cohabitation. Dating.
What is the shariah and what does it say?
This is a seeker’s findings.
Before I answer, I want to ask you a question: Don’t you hate when you ask something and people don’t give you a straight answer?
Now here are the answers: I don’t have the answers.
I am only a seeker. You can come along, but don’t follow me.
I sit with knowledgeable people, I listen to lectures, I travel the world and read widely. I don’t consider my opinions to be binding, anymore than I take others to be so when I have a reason not to. In Part I, I’m going to summarize the sources of the shariah/sharee’a, and offer a definition. In Part II, I’m going to summarize what those sources say about sexuality and gender. Then, in Part III, I’ll offer my personal commentary.
Part I: What is the Shariah?
I met Tariq Ramadan once.
He told me he is often asked who his shuyuukh (teachers) are. He said he answers with the name of his teachers from this school and that, but he always includes a drug addict. He had given a talk once in Egypt about Islaam, and afterwards he was approached by a drug addict with tears in his eyes who said, “The way you talk about Islaam, it is as if it is in the clouds. But what about us? You didn’t say anything for us?” That man, who brought his mentality back down from the clouds, is the only teacher he described in detail, because, after everything, he was the one who made his Islaam real.
I go to Jumu’a (Friday) prayers and watch the imaam read badly from a paper with a government stamp. With the fancy, old-fashioned árabic, all in the 3rd person, I wonder “Who is he talking to?” It’s always ‘it’, ‘this’, etc., never ‘I’ or ‘you’, as if the listeners, and even the speaker, aren’t really there.
I talk to Islamic Studies students who sound confused to everyone but themselves.
I talk to Talaabu-l’Ilm (students of knowledge) and hear and read the statements of ‘ulamaa. Sometimes I cringe at how out of touch they seem with reality, especially at the ones who were not that way before they studied.
I read books that compare Islamic ideals to “Western” realities, as if people are going to look around and actually see them.
This isn’t for me.
Islam is real.
We are here.
Islam is simple because it is wise. It is wise because it is simple. It starts and ends with laa ilaaha illa-llaah, Muhammadu-rRasuulu-llaah, there is no god but Allaah, Muhammad is Allaah’s Messenger, sA’aws.
Those who question Allaah’s existence may add these to their questions:
“ Is it that their faculties of understanding urge them to this, or are they but a people transgressing beyond bounds?
Or do they say: He has forged it. Nay! they do not believe.
Then let them produce speech the like thereof, if they are truthful.
Were they created of nothing, or were they themselves the creators?
Or did they create the heavens and the earth? Nay, they have no firm belief.
Or have they the treasures of your Lord with them? Or have they been set in absolute authority?
There being no god but Allaah goes far beyond worship. It implies authority and judgment, as indicated in Suuratu-lKahf (Qur-aan 18): 26:
“…and he does not make anyone a partner in his ‘hukm’ (sovereignty, judgement)” http://www.cmje.org/religious-texts/quran/verses/018-qmt.php
Allaah alone is the rightful lawgiver. All authority is his alone. Law is inseparable from life. The life and the law are Islam. “Verily the only acceptable deen to Allaah is Islaam.” (Qur-aan 3.19). The only acceptable law and lifestyle is Islaam, entrusting one’s wellbeing wholly to Allaah. Mixing another life or law with it, religious or legal syncretism, is giving others a share in his sovereignty.
Muhammad, as his Messenger, did more than teach rituals. He came to establish Allaah’s right on this earth. This lengthy passage illustrates the point:
“They say, “We believe in Allah and in the messenger, and we obey”: but even after that, some of them turn away: they are not (really) Believers.
When they are summoned to Allah and His messenger, in order that He may judge between them, behold some of them decline.
But if the right is on their side, they come to him with all submission.
Is it that there is a disease in their hearts? or do they doubt, or are they in fear, that Allah and His Messenger will deal unjustly with them? Nay, it is they themselves who do wrong.
The answer of the Believers, when summoned to Allah and His Messenger, in order that He may judge between them, is no other than this: they say, “We hear and we obey”: it is such as these that will prosper.
He who obeyeth Allah and His messenger, and feareth Allah, and keepeth duty (unto Him): such indeed are the victorious.
They swear their strongest oaths by Allah that, if only thou wouldst command them, they would leave (their homes). Say: “Swear ye not; Obedience is (more) reasonable; verily, Allah is well acquainted with all that ye do.”
Say: “Obey Allah, and obey the Messenger: but if ye turn away, he is only responsible for the duty placed on him and ye for that placed on you. If ye obey him, ye shall be on right guidance. The Messenger’s duty is only to preach the clear (Message).
Allah has promised, to those among you who believe and work righteous deeds, that He will, of a surety, grant them in the land, inheritance (of power), as He granted it to those before them; that He will establish in authority their religion – the one which He has chosen for them; and that He will change (their state), after the fear in which they (lived), to one of security and peace: ‘They will worship Me (alone) and not associate aught with Me. ‘If any do reject Faith after this, they are rebellious and wicked.
So establish regular Prayer and give regular Charity; and obey the Messenger; that ye may receive mercy.
Never think thou that the Unbelievers are going to frustrate (Allah’s Plan) on earth: their abode is the Fire,- and it is indeed an evil refuge!”
Qur-aan 24.47-57 http://www.cmje.org/religious-texts/quran/verses/024-qmt.php
This establishes, in my mind, Allaah and Rasuulu-llaah as the sole legitimate sources of law (Deen, sharee’a, fiqh, etc.). Importantly- and no redundancy intended- it negates everything else.
These sources include:
1) Allaah’s word
A) the Qur-aan
As for the Qur-aan’s validity, that is dealt with here:
“And if you are in doubt as to that which We have revealed to Our servant, then produce a chapter like it and call on your witnesses besides Allah if you are truthful. And if ye do it not – and ye can never do it – then guard yourselves against the Fire prepared for disbelievers, whose fuel is of men and stones.” (Qur-aan 2.23-4)
B) Ahadeeth Qudsi- Allaah’s direct statements not included in the Qur-aan, but narrated by Muhammad)
2) Allaah’s Creation- He insistently refers to His Creation as his aayaat, which is the same word used to refer to verses of the Qur-aan. Therefore, we are required to have sound knowledge of it (science, history, etc.)
- “And on the Earth there are Signs for those who are certain, and also in your selves; will you not then see?” (Qur-aan 52.20-1)
- “And he hath constrained the night and the day and the sun and the moon to be of service unto you, and the stars are made subservient by His command. Lo! herein indeed are portents for people who have sense. And whatsoever He hath created for you in the earth of divers hues, lo! therein is indeed a portent for people who take heed.” (Qur-aan 16.12-3)
3) The actions of Muhammad, as reported by his companions and later recorded.
“Verily you have, in the Messenger, an excellent example…” (Qur-aan 33.21)
4) The statements of Muhammad, as reported by his companions and later recorded
“nor does he speak out of his desire.” (Qur-aan 53.3)
5) The permissions or prohibitions of Muhammad, as reported by his companions and later recorded
“Whoever obeys the (Prophetic) Messenger has indeed obeyed Allah; and whoever turns away, so We have not sent you as a keeper over them.” (Qur-aan 4:80)
“and whatever the (Prophetic) Messenger gives you, take it and whatever he forbids you, abstain (from it), and be in reverential awe of Allah; surely Allah is severe in retributing (evil)”. (59:7)
6) The things about which Muhammad was silent when they were brought to his attention, as reported by his companions and later recorded
There are entire sciences devoted to the narrations of (3-6), dedicated to determining authenticity, checking the credibility of the narrators, choosing what takes precedence over what and methods of reconciling seeming contradictions.
Importantly, Number (3) authorizes the following as a source of law:
7) The Khulafaa (Caliphs)
This is established by the following statements, among other sources:
“I advise you to fear Allaah, and to listen and obey, even if (the ruler is) an Ethiopian slave. Whosoever among you lives long after me will see a lot of differences and disagreements. Therefore, follow my Sunnah and the Sunnah of the Khaleefah (Caliphs) who are divinely guided (al-mahdiyeen) and are rightly guided (al-raashideen). Adhere to IT and cling stubbornly to IT. Beware of the innovations in the (religious) affairs, for every innovation is a Bid’ah, and every Bid’ah is misguidance.” (al-Albaanee (d. 1420 H) Irwaa al-Ghaleel, vol. 8, p. 107, #2455)
Most Muslims consider this to be Abuu Bakr, ‘Umr, ‘Uthmaan, and ‘Alii, due to the following hadeeth:
“The Khilaafa (Caliphate) of Prophecy will last thirty years; then Allah will give the Kingdom of His Kingdom to anyone He wills.” (Bukhari, Book 40, Number 4629)
I have personally been convinced that it would have to also include Hasan (ibn Ali) as well at least.
Shee’a also believe that the Khulafaa (Caliphs) are a source of Deen, but differ over their identity:
“Narrated Aboo Sa’eed al-Khudree: Allaah’s Apostle, peace be upon him, said: “I have left among you that which if you hold fast to it you will NEVER go astray after me: the two weighty things (al-thaqalayn). One of them is greater than the other: the Book of Allaah, a rope stretching from the heaven to the earth, AND my ‘itrah, my Ahl al-Bayt. Verily, both shall NEVER separate until they return to me at the Lake-font.” ( Imaam AHmad, Musnad (Cairo: Muasassat al-Qurtuba) [annotator: Shu’ayb al-Arnaoot], vol. 3, p. 59, #11578)
“Narrated Masrooq: We were sitting with ‘Abd Allaah bin Mas’ood and he was reciting the Qur’aan to us. Then a man said to him: “O Aboo ‘Abd al-RaHmaan! Did you (Sahaabah) ask Allaah’s Apostle, peace be upon him, the number of Khaleefahs that will rule this Ummah?” ‘Abd Allaah bin Mas’ood replied: “None before you has ever asked me concerning this since I arrived Iraaq. Verily, we asked Allaah’s Apostle, peace be upon him, and he said: ‘Twelve, like the captains of Banoo Israaeel.” (Imaam Ahmad, Musnad (Egypt: Muasassat al-Qurtubah), vol. 1, p. p. 398, #3781 and p. 406, # 3859)
For an interesting debate about these differences, see http://qahiri.wordpress.com/2011/11/30/the-great-debate/
8) Ijma’: the consensus of the Muslims
“My Ummah (people) will not unite upon error.” (atTirmidhee and Haakim – Sahiih)
9) Ijtihaad: the striving for a correct ruling.
Scholars narrate a hadith that the Prophet (S), while sending Mu’adh to Yemen, asked him as to on what he would base his judgement. “In accordance with the Book of Allah”, replied Mu’adh, “But what if you don’t find it there?” inquired the Prophet (S). “According to the Sunnah of the Apostle of Allah”, replied Mu’adh. “But what if you don’t find it there too?” asked the Prophet (S) again. ‘I will exert my own opinion’, replied Mu’adh.
Ijtihaad, in turn, either is, or involves:
10) Qiyaas: literally ‘measurement’, or taking into account similar cases, and deriving rulings.
In Ijtihaad and Qiyaas, some scholars take into account:
11) ‘Urf, or custom, as an issue’s relative function or meaning may have some role on its legality. For example, while a ponytail is permissible for men, in a place where ponytails are strictly associated with a certain religion, or with females, they may fall under the prohibitions against imitating non-Muslims or imitating women (see Part II).
Ijtihaad involves other mechanisms, like taqleed, etc., but these are very nuanced so we won’t discuss them here.
Some Muslims only consider the Qur-aan to be valid. But as you can see, the Qur-aan necessitates the authority of all the others.
The majority of Muslims consider all of these to be valid or at least eligible sources of Deen, with a key difference being that Shee’a consider the Khulafaa to mean Imaams from ahlu-lBayt (The House of Muhammad, and specifically not Abuu Bakr, ‘Umar or ‘Uthmaan), and there are Tareeqas (orders) add their shaykhs in the Khulafaa. Ibaadi Muslims (prominent in Oman and small pockets of Africa) generally choose their Imam (political & religious leader) by giving a pledge, but I am not clear who they see as having legitimate theological authority beyond the Qur-aan and Sunna.
(8) Ijma’/Consensus, is hard to define. Does it mean unanimity or majority, and how is such a thing to be ascertained? Does it mean every Muslim, or only certain ones? There is debate about this, but I won’t go into it here.
(9-11) are essential due to issues on which (1-7) are silent, ambiguous, or seemingly contradictory.
It is important to note that there can be more than one right “answer” in sharee’a:
“The Prophet sallallaahu ‘alayhi wa sallam said to his Companions on the day of [the expedition to] Banu Quraydhah: “Let none of you pray ‘Asr except when you reach Bonu Quraydhah.” So the time for the ‘Asr Prayer came during the journey, so one group amongst them said: We will not pray until we reach Banu Quraydhah; so they missed the actual time for ‘Asr. The other group said: We will not miss it by delaying the Prayer; so they prayed along the way. And the Prophet sallallaahu ‘alayhi wa sallam did not criticise any of the two groups.” (al-Bukhaaree and Muslim)
Prophet Muhammad said “when a judge judges and strives and is correct, then he has two rewards. If he judges and strives and errs, then he has a single reward.”
Importantly, scholars CAN be mistaken. They should know it. Even if they don’t we sure should. They could be right, but only within their knowledge, from which vital information on a matter may be absent. He or she may or may not be at fault for this, but WE would definitely be at fault for doing anything about the fact that we know better.
As you can see, sharee’a is far more than a list of “Do’s & Don’ts”. Some Muslims mistakenly see it that way.
Nor is there any indication that Deen (Sharee’a (the right way), or fiqh (understanding, jurisprudence) would calcify or petrify at some point, after which nothing new or different can emerge. Some Muslims mistakenly see it that way.
Rather, it is a foundation, a set of precepts and methodological principles (ways of thinking) upon which we can, and MUST build. It is not the whole of the law. It is more like an inviolable constitution, with which all laws must be consistent.
Everyone nation considers its constitution inviolable.
In keeping with the example of the constitution, not everyone is qualified to interpret it. And even the laws (in this case fataawaa (fatwas, edicts)) established by those considered qualified are invalidated if they are found to be inconsistent.
There is nothing peculiar about this.
Islaam does not petrify, but rather defines the intellectual processes circumstances necessitate. It is not rules and regulations so much as the rule of revelation. Everything refers back to Allaah. “And is Allaah not the best of the Judges?” (Qur-aan 95.8) http://www.cmje.org/religious-texts/quran/verses/095-qmt.php
Some people look at it like a place that we always have to be. I see it as beacon that shows us where we are no matter where we go. ”Allaah is the Light of the heavens and Earth.” (Qur-aan 24.35). The sharee’a, and indeed Islam, are simply, referring all matters to Allaah.
Part II: The Shariah on Gender and Sexuality
Before exploring what the Islamic sources say about gender and sexuality, what are gender and sexuality? Luckily for you, if not for me, I studied them at Columbia. Sex is biological- it’s basically what genitals you have. Gender is social- it’s how you or others identify you. Sexuality is sexual- it’s who, what, when, where, why and how you have sex, if at all. Here are a couple of charts to get you up to speed:
Sexual Orientation Chart
Now let us survey what the sources of sharee’a reveal about sexuality and gender:
(a) The Qur-aan
- “We also (sent) Lut: He said to his people: “Do ye commit abomination such as no people in creation (ever) committed before you? Lo! ye come with lust unto men instead of women. Nay, but ye are wanton folk. And his people gave no answer but this: they said, “Drive them out of your city: these are indeed men who want to be clean and pure!” But we saved him and his family, except his wife: she was of those who legged behind. And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and crime!” (Qur-aan 7.80-4, see also 11.77-83, 15.57-77, 26.170-5, 37.133-8, 51.31-7, 54.33-9)
- The believers have succeeded…and who guard their private parts, except from their spouses or those whom their right hands possess, for they surely are not blameable. But those whoever seeks beyond that, then they are transgressors” (Qur-aan 23.1, 5-7)
- “And that He created pairs, the male and the female, from a drop (of seed) when it is lodged… (Qur-aan 53.45-6)
- “Does man think that he will be left aimless? Was he not a drop of sperm which gushed forth? Then he became a leech-like clot; then (Allaah) made and fashioned in due proportion. Then He made of him two kinds- the male and the female.” (Qur-aan 75.36-9)
- “…and the male is not like the female.” (Qur-aan 3.36)
- “Verily those who love that abomination should spread among the believers deserve a painful chastisement in the world and the Hereafter. Allaah knows, but you do not know. (Qur-aan 24.19)
- “…and do not throw yourselves, by your own hands, into destruction…” (Qur-aan 2.195)
- “…and do not kill one another…” (Qur-aan 4.29)
- “ Do not force your slave-girls into prostitution, when they themselves wish to remain honourable, in your quest for the short-term gains of this world, authough, if they are forced, God will be forgiving and merciful to them.” (Qur-aan 24.33- see discussion here.)
(b) Ahadeeth Qudsi- NO REFERENCES FOUND
(2) Allaah’s Creation (i.e. Scientific knowledge)
- Homosexuality was considered a clinical disorder until recently
- Certain diseases are specific to anal sex (http://www.thedailybeast.com/newsweek/2008/01/17/a-new-gay-disease.html)
- The AIDS rate is 50 times higher in homosexual men (http://www.lifesitenews.com/news/archive/ldn/2009/aug/09082609)
- Anal sex can lead to cases of sphincter incontinence (http://www.glapn.org/sodomylaws/world/afghanistan/afnews009.htm)
- Prominent homosexual groups link their behavior to the AIDS virus: (http://articles.latimes.com/2006/sep/30/local/me-hiv30)
- For review of research about biology and sexual orientation, and further references, see here: http://en.wikipedia.org/wiki/Gay_gene
(3) The actions of Muhammad
When a woman went out in the time of the Prophet for prayer, a man attacked her and overpowered [raped] her. She shouted and he went off, and when a man came by, she said: “That [man] did such and such to me”. And when a company of the Emigrants came by, she said: “That man did such and such to me”. They went and seized the man whom they thought had had intercourse with her and brought him to her. She said: “Yes, this is he”. Then they brought him to the Apostle of Allah.When he [the Prophet] was about to pass sentence, the man who [actually] had assaulted her stood up and said: “Apostle of Allah, I am the man who did it to her”. He [the Prophet] said to her: “Go away, for Allah has forgiven you”. But he told the man some good words [Abu Dawud said: "meaning the man who was seized"], and of the man who had had intercourse with her, he said: “Stone him to death.” Sunan Abu Dawud, Book 38, #4366
(4) The statements of Muhammad
- “May Allah curse him who does that Lot’s people did.” (Ibn Hibban, sahih (authentic))
- “Lesbianism by women is adultery between them.” (Tabarani, sahih)”
- “Allah curses men who imitate women and women who imitate men.” (Bukhari)
- “May Allah curse the effeminate man and the masculine woman.” (Bukhari)
- “Allah curses a woman who wears a men’s clothing and a man who wears a woman’s dress.” (Abu Dawud)
- “Never does indecency emerge within a people to the extent that they publicize it except plague and torments spread within them, the likes of which have not passed in their predecessors who have passed away.” (Ibn Majah, Baihaqi)
- “O Muhajirun, (emigrants from Makkah to al-Madinah) you may be afflicted by five things; God forbid that you should live to see them. If fornication should become widespread, you should realize that this has never happened without new diseases befalling the people which their forebears never suffered.” (Ibn Majah – Kitab Al-Fitan – Hadith 4019 – 2/1332 – cited in: Ibn Kathir – The Signs Before The Day Of Judgement – Dar Al Taqwa Ltd. 1991 – Pages 16-17)
- “Whenever unlawful sexual intercourse becomes widespread in a society – so much so that they start doing it in the open – plagues and various types of sicknesses will spread amongst them which weren’t present in previous generations.” (Classed as Sahih by Al-Hakim – Vol. 4)
- “…fornication does not spread in a people but that there is much death among them…” (Muwatta Malik, Book 21, Number 16)
(5) The commands or prohibitions of Muhammad
- “Kill the one who sodomizes and the one who lets if be done to him.” (Tirmidhi, a sahih (authentic) hadith)
- “A man should not look at the private parts of another man, and a woman should not look at the private parts of another woman. A man should not lie with another man without wearing lower garment under one cover; and a woman should not be lie with another woman without wearing lower garment under one cover.” (Abu Dawood)
(6) The things about which Muhammad was silent when brought to his attention- NO REFERENCES FOUND
(7) The pattern of the Khulafaa
- Abuu Bakr: It is narrated from Khaalid ibn al-Waleed that he found a man among one of the Arab tribes with whom men would have intercourse as with a woman. He wrote to Abu Bakr al-Siddeeq (may Allaah be pleased with him) and Abu Bakr al-Siddeeq consulted the Sahaabah (may Allaah be pleased with them). ‘Ali ibn Abi Taalib had the strongest opinion of all of them, and he said: “No one did that but one of the nations, and you know what Allaah did to them. I think that he should be burned with fire.” So Abu Bakr wrote to Khaalid and he had him burned. (ibnu-lQayyim, al-Jawaab al-Kaafi, p. 260-263) http://islamqa.info/en/ref/38622
- ‘Umr: NO REFERENCES FOUND
- ‘Uthmaan: NO REFERENCES FOUND
- ‘Alii: see Abuu Bakr
- Hasan ibn ‘Alii: NO REFERENCE FOUND
- Husayn ibn ‘Alii: NO REFERENCE FOUND
- ‘Umr ibn ‘Abdu-l’Azeez: NO REFERENCE FOUND
(8) Ijma’: Consensus of the Muslims
- “The Sahaabah were unanimously agreed on the execution of homosexuals, but they differed as to how they were to be executed.” (Saleh al-Munajjid) http://islamqa.info/en/ref/38622
- “Those who favoured the first view, who are the majority of the ummah – and more than one scholar narrated that there was consensus among the Sahaabah on this point – said that there is no sin that brings worse consequences than homosexuality, and they are second only to the evil consequences of kufr, and they may be worse than the consequences of murder, as we shall see below in sha Allaah.” (ibnu-lQayyim, al-Jawaab al-Kaafi)http://islamqa.info/en/ref/38622
- “Al-Shaafa’i, according to the well-known view of his madhhab, and Imam Ahmad according to the other report narrated from him, were of the view that the punishment for the homosexual should be the same as the punishment for the adulterer.
Imam Abu Haneefah was of the view that the punishment for the homosexual should be less severe than the punishment for the adulterer, and it is a punishment to be determined by the judge (ta’zeer).” (ibnulQayyim, al-Jawaab al-Kaafi) http://islamqa.info/en/ref/38622
- “What happens when a Muslim is stigmatized as a ‘homosexual’…?”- from a lecture by Abdullah bin Hamid Ali:http://www.lamppostproductions.com/?p=2517
- Ruhu-llaah Khomeini’s fatwa allowing sex-change operations http://www.thestar.com/news/insight/article/656809–it-s-easy-to-get-a-sex-change-in-iran
- There have been many, many scholars over the last 1400 millenia, so it would take a long time to give even a sampling.
(10 & 11) The Qiyaas and ‘Urf used in the Ijtihaad of the ‘ulamaa would be found in the fatwas of their Ijtihaad (see above)
In the matter of ‘Urf (customs), we all know that a diversity of sexual orientations and genders have been practiced and patternized in many places of the world throughout history. Additionally, violent hatred of homosexuals and genders besides male and female have also been common throughout history.
Part III: My Analysis and Opinion
It’s not as simple as it seems. The first generation of Muslims alone found themselves in a plethora of socio-political situations, and the law was not always the same in all of them:
1) Oppressed minorities- Muslims in Makka
2) Recognized minorities- Muslim merchants, travelers, and missionaries
3) Protected minorities- Muslim refugees in Ethiopia
4) Autonomous minorities- Refugees/Helpers in Madina (in charter with Jews and pagan Arabs)
5) Recognized state- Treaty of Hudaybia with widely-known Quraysh
6) Defensive war- Badr
7) Offensive war- Conquest of Makka
8) Victorious army- Battle of Badr
9) Defeated army- Battle of Uhud
10) Ruling majority- after Conquest of Makka
These were all in Muhammad’s lifetime. After his death, his generation also found themselves in the following:
11) Civil War- Wars of Apostasy, War after assassination of ‘Uthmaan
12) Ruling Minority- Persia (Iran/Iraq), etc.
13) Oppressed majority
A) Ruled by dictators/dynasties hostile to Islam and/or Muslims- Yazeed
B) Colonized by non-Muslims- Mongol invasion
C) Republican governments hostile to Islamic law in sum or part
The last 2 are the only situations that came after the first generation of Muslims. Imagining a uniform set of rules for all of these situations is naive at best.
The proof for the evolution of the sharee’a according to the socio-political state of the Muslims is in the Qur-aan itself. Look at the three aayaat (verses) regarding intoxicants:
They ask you concerning intoxicants and gambling. Say: “In them is a great sin, and (some) benefit for men, but the sin of them is greater than their benefit…” (Qur-aan 2.219)
This earlier revelation is a discouragement from alcohol, but not a prohibition. Coming directly from Allaah through his Messenger, though, makes it something someone seeking Allaah’s pleasure (which “sin” would not bring) would most likely stay away from.
“O People who Believe! Do not approach the prayer when you are intoxicated until you have the sense to understand what you say…” (Qur-aan 4.43)
This later revelation is a severe restriction, but not a prohibition. Considering the closeness in timings between prayers, especially in the shorter days of winter, and the fact that intoxication can last well into the next day, a believer would find him or herself able to intoxicate very little, and would probably avoid it altogether.
“Shaitân (Satan) wants only to excite enmity and hatred between you with intoxicants and gambling, and hinder you from the remembrance of Allaah and from As-Salaat (the prayer). So, will you not then abstain?” (Qur-aan 5.91)
This finally prohibits intoxication, associating it with Shaitaan’s agenda, forgetfulness of Allaah, and abandonment of prayer.
The proof for the evolution of sharee’a according to the status of the people is in the following hadeeth:
From ‘Aa-isha:”…(Be informed) that the first thing that was revealed thereof was a Sura from Al-Mufassal, and in it was mentioned Paradise and the Fire. When the people embraced Islam, the Verses regarding legal and illegal things were revealed. If the first thing to be revealed was: ‘Do not drink alcoholic drinks.’ people would have said, ‘We will never leave alcoholic drinks,’ and if there had been revealed, ‘Do not commit illegal sexual intercourse, ‘they would have said, ‘We will never give up illegal sexual intercourse.’… “ (Bukhaari 61 (Virtues of the Qur-aan).515)
The wisdom behind it is essentially a democratic principle: once enough people ascribe to an ideology, they begin living by its principles. That isn’t to say that all laws retract (the prohibition of alcohol is clearly final, for example). Rather, the punishments associated with punishable acts are only valid in certain socio-political situations. Requirements and prohibitions are generally always in effect, but enforcement and punishment vary according to what is best for the people and their religion.
Any verse of Qur-aan, prophetic narration, or reference to companions of scholars above occurred in one or more of these situations, but certainly not all of them. Sometimes a source is specific to its situation, sometimes it is not. Therefore, simply picking out an aaya (verse) of the Qur-aan, a hadeeth, or a scholarly statement is not enough.
That said, here is my analysis and opinion of the sharee’a and sex, gender and sexuality.
It is clear from the proofs that Allaah is the sole Creator, and that he only created two sexes: male and female. There are only 2 physical sexes. The genetic disorders and birth defects that confuse what physical sex a person is are exceedingly rare, and even then the choice is only between male and female. Surgery or therapy are almost always enough to resolve these issues.
Allaah, the Creator, has only assigned two genders to the two sexes: physical males should live and act as males, and likewise for females. Sex and gender are inseparable. A male should not resemble a female in appearance, dress, or behavior, and a female should not resemble a male in appearance, dress or behavior. Violating this code is punishable (expulsion from the home), and I don’t see any stage of Islamic society in which this punishment is not valid.
Ruhollah Khomeini’s fatwaa allowing sex changes is not founded on any Islamic evidence. And it should be said that he was only recognized as a religious authority by some Shi’a in Iran, and not everyone in Iran is Shi’a.
The sexual act is only allowed between males and females. Females cannot have sex with females. Males cannot have sex with males. Anal sex is an abomination. Science has shown it to be a disease-prone activity, and this is only one of the wisdoms (for lack of better word) behind the prohibition. Homosexual sex is punishable. I have not seen whether four credible witnesses to the actual sexual act are required, as with fornication and adultery (zina), or not. The punishment is obviously harsh, but the diseases and social disorder (lack of people to marry, which induces more homosexuality, fornication and zina, etc.) that unchecked homosexuality brings to a society is much worse. Therefore, the sharee’a objectives of protecting life, religion, property, lineage and honor are more important than a person’s desires.
Some people argue that the Qur-aan is not explicit about homosexuality, lesbianism, anal sex, etc. Even so, the Qur-aan authorizes Muhammad, and Muhammad’s ahaadeeth are explicit. Even if they do not accept this, homosexual sex is clearly associated with deadly, debilitating and disfiguring diseases that can affect innocent people. So it would still fall under the prohibitions of destructive and deadly behavior.
Some may argue that homosexuals do not all carry and/or spread diseases. This is obviously true, but it does not negate Allaah’s right as sovereign.
As for punishing homosexuality, until Muslims have established the word of Allaah as the basis of law, the punishment is not in effect and people are left to their conscience (taqwaa). In these stages, the task of the Muslims is to establish Allaah’s word as uppermost through da’wa (invitation to Islaam), commanding good and forbidding evil by example, hijra and/or jihaad.
That is the sexual act. As for sexual attraction, not even Allaah judges a person by what they feel like doing. Only intentions and actions are taken into account:
“It is narrated on the authority of Abu Huraira that the Messenger of Allah (may peace be upon him) observed: Allah, the Great and Glorious, said: Whenever my bondsman intends to do good, but does not do it, I write one good act for him, but if he puts it into practice I wrote from ten to seven hundred good deeds in favour of him. When he intends to commit an evil, but does not actually do it, do not record it. But if he does it, I write only one evil.” (Muslim I.60.233)
So feeling inclined to do wrong is never even taken into account. In fact, intending to do wrong doesn’t even count, to Allaah. Some people are tempted to steal or take advantage of others. Others may have temper problems. Others may feel like or intend to murder. Some battle with drug or alcohol addiction. But the inclination, the desire, the weakness, is not wrong. Only the act that is wrong. So a person, male or female, who desires the same sex is not to blame. It is only one of Allaah’s tests. If they do not indulge in this act, or imitate the opposite sex, then Allaah does not blame them.
If someone is raped by a homosexual, they are not to blame. If someone is forced into prostitution, they are also not to blame.
4. Living in gender/sexuality-plural situations
If someone is not born with the characteristics normally associated with their sex and gender (e.g. male with high voice, woman with deep voice or manly figure, etc.), then the people should not mock them, or backbite them, or be suspicious of them. If their gender is inappropriate, meaning if they behave or look in some ways like the opposite sex, then it is their guardians who should punish them, not the general public. If people think they are homosexual, bisexual or lesbian- even if they know it- they should be silent until their is proof and even then, punishments are to be carried out according to a legal process, if Islaam has been established as the law in that locality.
It is clear that crossing gender and homosexual sex are clearly never allowed. Neither is homophobia- persecuting or dehumanizing confirmed or suspected homosexuals:
-“O ye who believe! Let not some men among you laugh at others: It may be that the (latter) are better than the (former): Nor let some women laugh at others: It may be that the (latter are better than the (former): Nor defame nor be sarcastic to each other, nor call each other by (offensive) nicknames: Ill-seeming is a name connoting wickedness, (to be used of one) after he has believed: And those who do not desist are (indeed) doing wrong.
O ye who believe! Shun much suspicion; for lo! some suspicion is a crime. And spy not, neither backbite one another. Would one of you love to eat the flesh of his dead brother? Ye abhor that! And keep your duty (to Allah). Lo! Allah is Relenting, Merciful.”
-”Why did they not produce four witnesses of it (fornication)? Since they produce not witnesses, they verily are liars in the sight of Allah.” (Qur-aan 24.13)
-“When you received it with your tongues and spoke with your mouths what you had no knowledge of, and you deemed it an easy matter while with Allah it was grievous.” (Qur-aan 24.15)
-On the authority of Jundub (may Allah be pleased with him), who said that the Messenger of Allah (peace be upon him) related: A man said: By Allah, Allah will not forgive So-and-so. At this Allah the Almighty said: Who is he who swears by Me that I will not forgive So-and-so? Verily I have forgiven So-and-so and have nullified your [own good] deeds (1) (or as he said [it]).
A similar Hadith, which is given by Abu Dawud, indicates that the person referred to was a godly man whose previous good deeds were brought to nought through presuming to declare that Allah would not forgive someone’s bad deeds. (Hadeeth Qudsi, Muslim)
“…someone said to [a man], ‘May Allah disgrace you!’ On that the Prophet said, ‘Do not say so, for you are helping Satan to overpower him.’ ” (Bukhari 8:768)
Islaam is not a religion: it is a deen (law and lifestyle). It is valid in every time and place, but it can only be applied with knowledge. Every Muslim, everywhere, should strive to know, check their sincerity, and perfect their actions.
“Are those who know equal to those who know not?” (Qur-aan 39.9)
“…so ask the people of the Reminder if you do not know.” (Qur-aan 16.43, 21.7)
“The search of knowledge is an obligation laid on every Muslim.” (Ibn Majah, Baihaqi)
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