Licit and illicit sexuality in Islamic law by



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Licit and illicit sexuality in Islamic law

by

Sami A. Aldeeb Abu-Sahlieh1



«
Man is neither angel nor beast; and the misfortune is that he who would act the angel acts the beast»

Pascal, Pensées, VI, 358.
Lausanne, October 9, 2003

www.sami-aldeeb.com

saldeeb@bluewin.ch


INTRODUCTION


I will not speak here of Islam, but of Muslims. Islam, like Christianity or Judaism, is an abstraction that does not exist as a body or entity in itself.

In any society, there are laws. They are supposed to regulate the society and, in the same time, to be adapted to the evolution of the society. This adaptation takes time in democratic societies, but it is almost impossible in theocratic ones as the laws are attributed to God. Even where such an adaptation has been possible, religious authorities continue pushing in favour of the application of the religious norms, provoking a conflict between the state's law and the religious norms. This is what we will see in this article devoted to the study of sexuality in the Muslim society.


I. General notions of the Islamic law

A) Sources of the Islamic law

Muslims inherited from the Jews the belief that God dictated norms according to which the humanity must behave. These norms are formulated in the Koran and the Sunnah of Muhammad that constitute the two main sources. We will say here some words about them:

- The Koran: disarticulated book, with lapidary expressions, whose 114 chapters are classified by order of length (to the exception of the first chapter). It includes contradictory verses that Muslim jurists tried to reconcile by supposing that posterior verses abrogate those that precede, but without knowing with certainty the chronological order of these various verses. In spite of its obvious imperfections, Muslims consider the Koran a matchless work whose author is Allah himself.

- The Sunnah: words, gestures and facts of Muhammad, infallible messenger of God, dispersed in many compilations, often contradictory, whose authenticity is put in doubt. It serves to solve the difficulties of the Koran, to complete it, or even to abrogate some of its verses.

In addition to these two sources, Muslims believe that the religious norms revealed to prophets who came before Muhammad apply to Muslims also whenever they are not abrogated by the Koran or the Sunnah. But as Muslims consider the Jewish and Christian holy books are falsified, they only trust what the Koran and the Sunnah tell about these prophets.

From these sources, tainted with uncertainties, Muslim jurists tried to systematize the Islamic law, fixing its principles and specifying norms, necessarily divergent, that must apply to the relation of human beings between themselves and their religion with God. These acts are classified in five main categories: obligatory, advisable, forbidden, reprobate or authorized. The role of the Muslim jurist consists to decide according to these sources in what category sexual relations have to be placed.

As the Jews, Muslims consider that the religious norms apply at all time and in all places. The Koran imposes their application:

No believing man or believing woman, if God and his messenger issue any command, has any choice regarding that command. Anyone who disobeys God and his messenger has gone far astray. (33:36).

The only utterance of the believers, whenever invited to God and his messenger to judge in their affairs, is to say: "We hear and we obey". These are the winners (24:51).

Muhammad Mitwalli Al-Sha’rawi (died 1998), religious leader and Egyptian politician, explained that revelation is called upon to decide equivocal questions, thus freeing mankind of the anguish of solving a difficult case by discussion, or by exhaustive repetition of experiences. The Muslim does not have to look outside Islam for solutions to any problem, since Islam, according to Al-Sha’rawi, offers absolute eternal and good solutions2. He adds:

If I were the person responsible for this country or the person charged to apply God’s law, I would give a delay of one year to anyone who rejects Islam, granting him the right to say that he is no longer a Muslim. Then I would dispense to him of the application of Islamic law, condemning him to death as apostate3

The non-application of the Islamic law is the major reason of tension between Muslim fundamentalists and Islamic regimes.

B) Islamic criminal Law


The Islamic criminal law distinguishes between two categories of offences:

- Offences punished by fixed punishment (had) foreseen by the Koran or the Sunnah of Muhammad. These are: theft, banditry, armed insurrection, adultery, false accusation of adultery, drinking alcohol, apostasy and reach to life or physical integrity. Punishments foreseen for these offences are applied under strict conditions that vary according to Islamic schools.

- Offences punished by discretionary sanction (ta‘zir). This category covers the aforesaid offences when one of its conditions is missing. It covers also offences that are not foreseen in the first category.

If the conditions of the offences are fulfilled, the guilty cannot be pardoned (reduction of the pain, completely or partially or its commutation in a softer pain). The Koran says: "These are God's laws (hudud); do not transgress them. Those who transgress God's laws are the unjust" (2:229). The fixed offences are imprescriptible. The forgiveness of injured or of the person concerned can play a role regarding the reach to life or physical integrity (the price of blood replaces here the punishment), the accusation of adultery and the theft, but doesn't affect the offence of adultery. The repentance of the guilty can also play a certain role for offences of banditry and apostasy; the fixed punishment is cancelled in this case, but the state keeps the right to apply a discretionary sanction.

From what we have just seen, the adultery and the false accusation of adultery, constitute two offences punished fixed punishment, but there are other sexual offences punished by discretionary sanction.

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