Weaving Marginality into Significance: On Abolition and Sexual Privacy
In this post, I want to follow up on yesterday's theme, concerning moments when jurists are supremely ignored in favor of other perceived interests that are just deemed un-Islamic for whatever reason. Yesterday, I talked about the dynamic of how that might work. Today, I wanted to point out how the marginalization can, due to societal evolution, find itself reversed, and once ignored juristic rules make their way into significance.
I guess slavery is the best example. At some point in the late 19th century the practice started to disappear, partly through Western influence and partly through societal changes. Professor Freamon points out as well that the jurists were beginning to make abolitionist arguments, but to me, this isn't interesting, the real interesting bit is that people all of a sudden started to listen to them. Yesterday, when we sat in the 17th century, it was all about the curse of Ham, move forward a few hundred years, and all of a sudden, the jurists start becoming relevant. Clearly what they are saying is resonating as the times change. These restrictions on when slaves can be acquired start becoming relevant. Quranic reform arguments that God and his Prophet really never wanted to see slavery begin to spread. And in the space of a pretty quick time, less than a hundred years certainly we move from jurists allowing slavery with restrictions nobody is listening to, to jurists severely limiting slavery to the point where it is basically, fundamentally impossible. It's gone, rules that were effectively nothing but old guys muttering in their beards found life, and were even extended. Now when a jurist even mentions the possibility of slavery though with the very difficult restrictions, people scratch their heads a bit and wonder whether he should mention it. (This happened with the late Shi'i jurist Ayatollah Khui'i a few years back.)
What does that have to do with sexual privacy? Well turn to my colleague Mohammad Fadel who has written a really great symposium piece in the University of Chicago's International Law Journal on public reason and Islam, and you read that apparently there were classical rules in the Maliki school of thought that prevented a person from inquiring as to a spouse's chastity (a wife's chastity, no reason to be coy, it's the woman they are thinking about). I had dinner with Mohammad around the time this was written and he mentioned it and I remember thinking "man, another one of these stupid classical rules things he cares so much about. Why are we talking about this?" I have no idea whether or not Malikis ever paid attention to this, but I think I know a fair amount about modern Islam, and this isn't relating modern reality. There's no way anyone would think the bride's sexual history is her own business. It's the thing people focus on, and while the old days of showing everyone the bedsheet with the blood on it to prove virginity on the wedding night are mostly gone (not entirely, not in the villages), I hear stories in Basra, in Cairo, in the Sudan even, of parents hanging out just outside the wedding night chamber, waiting to hear that the deed has been done. In any event, let's suffice it to say, while physical checks pre-wedding are not common, certainly it matters, and certainly if someone finds out on the wedding night, it's not a good thing, it's a terrible, awful scandal. Sure some men might hide the fact when they discover it to cover up the humiliation, and it is in this region humiliation, of marrying a non-virgin, but that's not really the point. the point is if it got out, it would be trouble. If it got out that she was raped at 11 by her uncle, it would be bad for her. Maybe she could in that case as a child rape victim marry at 21 a 61 year old divorcee or something (literally), but other than that, there isn't much promise. An intact hymen is sanctified to the point of near hysteria in these parts.
So what the hell is this sexual privacy stuff he keeps talking about, I think. It's as foreign to this world as Mars. And then just the other day I come across a fatwa (not terribly recent, I'm a bit behind) from the Azhar's chief cleric, Ali Gomaa on the question of hymen reconstructive surgery. Permissible, he says. Can be concealed, says the Grand Mufti. Nobody is permitted to ask about it, he says. So if she's been active, she can cover it all up (yes through painful surgery and I understand why Western liberals recoil at these things but honestly, think of the very limited choices some of these women in these awful situations have before condemning them so quickly), and there is nothing wrong in not telling anyone about that. And we know where he got this from, from Mohammad's rules that I was so quick to dismiss.
Now to be clear, Gomaa is government appointed and often derided for that reason as a lackey to Egypt's president, Hosni Mubarak. He doesn't have near the appeal of someone like Yusuf Qaradawi. So the rules are still largely a dead letter, I really can't believe the world changes overnight.
But he is the head of the Azhar. And he has juristic cover, he has these rules, he's using them, the Taliban I am sure would condemn him for this, and maybe they did. (They did condemn Egypt's expansion of women's right to divorce when that was done and they were around as unIslamic and an offense to the Prophet--when in fact all Egypt did was adopt one historic Sunni school of thought's rule instead of another). But with the rules there in those books, and the world changing, and he willing to talk about them, who knows where things might ultimately lead. Not necessarily because of him, but it might be an early sign of things to come, who knows.
In 1591, a Muslim jurist, a black man, was taken slave by an invading Moroccan army. His name was Ahmed Baba. At this time running throughout the lands was the belief that blacks could be enslaved because they were the children of Ham, and God had ordained it. Ignorance, whether wilful or not I leave others to tell, of the shari'a rules on slavery (and race and ethnicity) was widespread. Nobody really paid any attention, nobody cared. But Ahmed Baba, being enslaved, obviously did, made his case to the sultan, and was released. He later wrote a treatise of wide popularity concerning the actual position of slavery and enslaving free Muslims (ie you can't do it), and that is what he is known for. But as for me I like to think of Ahmed Baba in chains, waiting to see the Sultan, aware that a lifetime of captivity awaited him if he failed in his plea. Hearing the rumors, knowing the popular beliefs, aware of the practices, about to try something, a plea for freedom for a black man, that should not succeed. Yet it was 1591, and the times had begun to change and the world was spinning slowly and inexorably towards modernity. I imagine he dusted off the books that nobody had cared to think about for centuries, at least in these matters, and prepared his case. I like to think of him with the books before him, desperate to win his freedom, opening the first one to page one, where he began to read the same words any such book would contain. Long forgotten words, when it came to the rights of blacks in his place and time. In the name of the All Merciful and All Compassionate God.
HAH
I guess slavery is the best example. At some point in the late 19th century the practice started to disappear, partly through Western influence and partly through societal changes. Professor Freamon points out as well that the jurists were beginning to make abolitionist arguments, but to me, this isn't interesting, the real interesting bit is that people all of a sudden started to listen to them. Yesterday, when we sat in the 17th century, it was all about the curse of Ham, move forward a few hundred years, and all of a sudden, the jurists start becoming relevant. Clearly what they are saying is resonating as the times change. These restrictions on when slaves can be acquired start becoming relevant. Quranic reform arguments that God and his Prophet really never wanted to see slavery begin to spread. And in the space of a pretty quick time, less than a hundred years certainly we move from jurists allowing slavery with restrictions nobody is listening to, to jurists severely limiting slavery to the point where it is basically, fundamentally impossible. It's gone, rules that were effectively nothing but old guys muttering in their beards found life, and were even extended. Now when a jurist even mentions the possibility of slavery though with the very difficult restrictions, people scratch their heads a bit and wonder whether he should mention it. (This happened with the late Shi'i jurist Ayatollah Khui'i a few years back.)
What does that have to do with sexual privacy? Well turn to my colleague Mohammad Fadel who has written a really great symposium piece in the University of Chicago's International Law Journal on public reason and Islam, and you read that apparently there were classical rules in the Maliki school of thought that prevented a person from inquiring as to a spouse's chastity (a wife's chastity, no reason to be coy, it's the woman they are thinking about). I had dinner with Mohammad around the time this was written and he mentioned it and I remember thinking "man, another one of these stupid classical rules things he cares so much about. Why are we talking about this?" I have no idea whether or not Malikis ever paid attention to this, but I think I know a fair amount about modern Islam, and this isn't relating modern reality. There's no way anyone would think the bride's sexual history is her own business. It's the thing people focus on, and while the old days of showing everyone the bedsheet with the blood on it to prove virginity on the wedding night are mostly gone (not entirely, not in the villages), I hear stories in Basra, in Cairo, in the Sudan even, of parents hanging out just outside the wedding night chamber, waiting to hear that the deed has been done. In any event, let's suffice it to say, while physical checks pre-wedding are not common, certainly it matters, and certainly if someone finds out on the wedding night, it's not a good thing, it's a terrible, awful scandal. Sure some men might hide the fact when they discover it to cover up the humiliation, and it is in this region humiliation, of marrying a non-virgin, but that's not really the point. the point is if it got out, it would be trouble. If it got out that she was raped at 11 by her uncle, it would be bad for her. Maybe she could in that case as a child rape victim marry at 21 a 61 year old divorcee or something (literally), but other than that, there isn't much promise. An intact hymen is sanctified to the point of near hysteria in these parts.
So what the hell is this sexual privacy stuff he keeps talking about, I think. It's as foreign to this world as Mars. And then just the other day I come across a fatwa (not terribly recent, I'm a bit behind) from the Azhar's chief cleric, Ali Gomaa on the question of hymen reconstructive surgery. Permissible, he says. Can be concealed, says the Grand Mufti. Nobody is permitted to ask about it, he says. So if she's been active, she can cover it all up (yes through painful surgery and I understand why Western liberals recoil at these things but honestly, think of the very limited choices some of these women in these awful situations have before condemning them so quickly), and there is nothing wrong in not telling anyone about that. And we know where he got this from, from Mohammad's rules that I was so quick to dismiss.
Now to be clear, Gomaa is government appointed and often derided for that reason as a lackey to Egypt's president, Hosni Mubarak. He doesn't have near the appeal of someone like Yusuf Qaradawi. So the rules are still largely a dead letter, I really can't believe the world changes overnight.
But he is the head of the Azhar. And he has juristic cover, he has these rules, he's using them, the Taliban I am sure would condemn him for this, and maybe they did. (They did condemn Egypt's expansion of women's right to divorce when that was done and they were around as unIslamic and an offense to the Prophet--when in fact all Egypt did was adopt one historic Sunni school of thought's rule instead of another). But with the rules there in those books, and the world changing, and he willing to talk about them, who knows where things might ultimately lead. Not necessarily because of him, but it might be an early sign of things to come, who knows.
In 1591, a Muslim jurist, a black man, was taken slave by an invading Moroccan army. His name was Ahmed Baba. At this time running throughout the lands was the belief that blacks could be enslaved because they were the children of Ham, and God had ordained it. Ignorance, whether wilful or not I leave others to tell, of the shari'a rules on slavery (and race and ethnicity) was widespread. Nobody really paid any attention, nobody cared. But Ahmed Baba, being enslaved, obviously did, made his case to the sultan, and was released. He later wrote a treatise of wide popularity concerning the actual position of slavery and enslaving free Muslims (ie you can't do it), and that is what he is known for. But as for me I like to think of Ahmed Baba in chains, waiting to see the Sultan, aware that a lifetime of captivity awaited him if he failed in his plea. Hearing the rumors, knowing the popular beliefs, aware of the practices, about to try something, a plea for freedom for a black man, that should not succeed. Yet it was 1591, and the times had begun to change and the world was spinning slowly and inexorably towards modernity. I imagine he dusted off the books that nobody had cared to think about for centuries, at least in these matters, and prepared his case. I like to think of him with the books before him, desperate to win his freedom, opening the first one to page one, where he began to read the same words any such book would contain. Long forgotten words, when it came to the rights of blacks in his place and time. In the name of the All Merciful and All Compassionate God.
HAH
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