Rape in Islamic Law

This article was just posted on the Facebook page of Professor Jonathan AC Brown. There is a fascinating discussion afterwards about rape and slaves in Islam.

In light of the misinformation and ignorance being batted around over the issue of Rape in Islamic Law, here is the text of Hina Azem’s excellent entry on it from the Oxford Encyclopedia of Islam and Law (of which I am admittedly the editor in chief):

Classical Islamic law defined what we would call “rape” as a coercive form of illicit sex or fornication (zinā). This basic definition of rape as “coercive zinā” meant that all the normal legal principles that pertained to zinā – its definition, punishment, and establishment through evidence – were applicable as well to rape: The prototypical act of zinā was defined as sexual intercourse between a man and a woman over whom he has neither a conjugal nor an ownership right. Sane adult male and female participants to zinā were to receive a fixed corporal punishment (ḥadd): one hundred lashes and exile for unmarried free persons, stoning to death for married or previously married free persons, and fifty lashes (without exile) for slaves. Zinā was established, according to classical law, through either confession of one or both parties, or through the concurrent eyewitness testimony of four sane adult males. (It was unanimously agreed that women’s testimony was excluded in the ḥadd crimes, including zinā.) A third type of evidence – pregnancy in an unmarried/unowned woman – was contested between the schools. The stringent evidentiary and procedural standards for implementing the zinā punishment may have functioned to offset the severity of the punishment itself, an effect that seems to have been intended by legal authorities, who in the early period developed legal maxims encouraging averting the ḥadd punishments as much as possible, whether through claiming ambiguity (shubha) or a lack of legal capacity (ahliyya).

Muslim authorities recognized from the earliest period, however, that not all acts of zinā were mutually consensual, and that the legal principles meant to address cases of consensual zinā were not easily applicable in cases of coercion. Muslim judges and jurists thus developed a theoretical apparatus through which to analyze the various complexities raised by coercive zinā. This classical theoretical apparatus used consensual zinā as its basic framework, but expanded it in important ways.

What distinguished a prototypical act of zinā from an act of “rape,” for the jurists, was that in the prototypical case, both parties act out of volition, while in an act of “rape,” only one of the parties does so. Jurists admitted a wide array of situations as being “coercive” in nature, including the application of physical force, the presence of duress, or the threat of future harm either to oneself or those close to oneself; they also included in their definition of “coercion” the inability to give valid consent, as in the case of minors, mentally ill or unconscious persons. Muslim jurists from the earliest period of Islamic law agreed that perpetrators of coercive zinā should receive the ḥadd punishment normally applicable to their personal status and sexual status, but that the ḥadd punishment should be averted from victims of coercive or non-consensual zinā due to their reduced capacity.

The jurists drew a general status distinction between free persons and slaves, and this distinction is reflected in all areas of the law, including rape law. There are several notable differences between the juristic discussion of sexual violation between free persons and sexual violation involving slaves, all of them stemming from the legal status of slaves as property rather than proprietors. The first is a difference in terminology and placement in legal works. Violation of free women is normally described as “coercive zinā” (al-istikrāh ʿalā al-zinā) and the victim as the “coerced woman” (al-mustakrahah), and substantive discussions are normally found in chapters on ḥudūd and zinā. Violation of slavewomen, on the other hand, is normally described as “property usurpation” (ghaṣb) and the victim as “usurped property” (maghṣūbah), and substantive discussions are normally found in chapters on ghaṣb. The second notable difference is the pointed attention to the volitional state of free women in acts of zinā and the frequent lack of attention to the volitional state of slavewomen in acts of ghasb. For the jurists, sexual usurpation of a slavewoman was a form of property damage that required financial compensation to her owner for depreciation. The consent or coercion of the slavewoman to the act, while important for determining whether or not she should get the ḥadd punishment, was irrelevant to assessing depreciation. A third key difference between the violation of free women and slavewomen is closely related to the previous point: The jurists were in agreement that violation of slavewomen required financial compensation to owners, usually equal to the amount by which she was depreciated by the act (this being of particular relevance if she was previously a virgin). Such agreement on monetary compensation was not found in the case of free female rape victims, and this latter point remained heavily contested between the schools of law, as follows:

According to the Mālikī, Ḥanbalī and Shāfi`ī schools of law, the rape of a free woman consisted of not one but two violations: a violation against a “right of God” (ḥaqq Allāh), provoking the ḥadd punishment as we have seen above, and also a violation against a “human” or interpersonal right (ḥaqq ādamī), provoking a monetary compensation. These jurists saw the free woman, in her proprietorship over her own sexuality (buḍ`), as not unlike the slaveowner who owns the sexuality of his female slave. For them, in the same way that the slaveowner was entitled to compensation for sexual misappropriation, the free woman was also entitled to compensation. The amount of this compensation, they reasoned, should be the amount that any man would normally pay for sexual access to the woman in question – that is, the amount of her dower (ṣadāq or mahr). Islamic juristic thinking thus relied not only on the logic of zinā to deal with rape, but also on the logic of marriage: In the case of slavewomen, rape was specifically analogized to usurpation of sexual property, and the case of free women, it was analogized to a usurped conjugal right. In any case, the dower compensation was only seen as applicable if intercourse had taken place; assault of a free woman that excluded vaginal penetration – such as manual defloration – did not provoke the dower fine. (In the case of slavewoman, manual defloration could result in a fine, as it was regarded as a damage to property.)

As against the other Sunni schools, the Ḥanafī school rejected the principle of a dower compensation to free victims of rape. For this, they relied on a few key principles: The first was what they perceived as a necessary hierarchy and consequent conflict between the “rights of God” (ḥuqūq Allāh) and the “rights of persons” (ḥuqūq ādamīya). According to the Ḥanafīs, in cases of combined violations against both God and persons (of which rape was a type), the right of God – that is, the imposition of the ḥadd punishment – trumped the personal right of the woman to compensation for sexual usurpation: If and when the ḥadd zinā was imposed, the dower fine was to be dropped. The second principle was the rejection of the analogy of rape to marriage, which functioned critically in the discourse of the other schools. The dower that served as an exchange value for sexual right in marriage could not be applied, they argued, in the case of rape, which was a form of zinā. Providing a monetary award to a rape victim would be analogous to paying a prostitute. (A minority opinion within the Ḥanbalī school should also mentioned, which was that a compensation for wrongful sex is only payable in the case of virgins, not matrons.)

The evidentiary rules for establishing rape fell into two categories, depending on what was sought – imposition of the ḥadd zinā on the perpetrator or monetary compensation to the victim. Insofar as rape was a type of zinā, the jurists theorized that it could only be established through the same means as consensual zinā – confession or eyewitness testimony of four adult male witnesses. If neither form of evidence could establish with certainty that penetration had occurred, or if the perpetrator had reduced capacity (due to minority, for example), then the ḥadd punishment could not be imposed on the perpetrator. However, the judge might impose a discretionary corporal punishment (taʿzīr) if he felt there was enough circumstantial evidence to support her claim. This line of thought is most fully developed by the Mālikī scholars, and least so by the Ḥanafī scholars.

As for her claim to the dower compensation (among those who accepted it), the legal texts suggest that it was to be handled like any other civil claim (daʿwā or istiḥqāq), in which the claimant seeks to establish testimony through two male witnesses or one male and two female witnesses, or one male witness and an oath. If the claimant is unable to bring sufficient evidence to support her charge, the defendant would presumably have a choice between either acknowledging her claim or denying it through an oath, in which case the charges would be dropped. The efficacy of this system for civil claims in rape cases is unclear, however, because of certain complications: First, the system seems to be intended for breaches of contract, rather than crimes; bringing even one witness to the concomitant events surrounding an act of rape could be nearly impossible for a victim. Second, oaths are specifically rejected in establishing the rights of God, of which rape is a type. Third, charging someone for rape with less than the four requisite witnesses would expose both the witnesses and the claimant to charges of slander (qadhf), which itself is punishable. The classical school texts do not entirely address the difficulties of applying civil claims procedures in the context of rape charges, but seem to leave room for judges to interpret and apply these different rules as they see appropriate. Of the Sunni schools, the Mālikī school goes furthest to establish ways that a rape victim might mount a successful claim for compensation without sufficient eyewitness support or only circumstantial evidence. This may be due to the fact that of the four schools, only the Mālikī school holds pregnancy in an unmarried woman to be proof of zinā and therefore punishable; the other three schools withhold punishment in this context, on the presumption that she may have been raped. A rape victim in Mālikī jurisdiction, therefore, would be forced to report the crime and bring charges against her assailant, so as to avert punishment should she later show pregnancy. It may be that an acute awareness of the difficult position in which rape victims found themselves prompted Mālikī jurists to develop a more workable theory of evidence than the other schools.

Imāmī Shiite jurisprudence on rape is similar to Sunni jurisprudence in basic respects, yet has some appreciable differences. Shiite authorities agreed that the ḥadd punishment for zinā was to be imposed on the perpetrator of rape while averted from the victim. Their arguments for this averting were based not so much on the mitigating role of coercion/invalid consent in application of the ḥadd penalties, but rather on the idea that the rape victim had not actually committed zinā, in the first place, an act that requires intent. As for the punishment to be applied on the perpetrator, Shiite law was univocal in supporting an intensified version of the ḥadd zinā, namely execution by the sword rather than the normal ḥadd zinā (which was flogging for the unmarried and stoning for the previously married).

Shiite jurists were divided over the appropriateness of compensating the free victim of rape in the amount of her dower (mahr or ʿuqr). Some argued that there is no compensation for the victim, based on ʿAlī’s precedent and the Prophetic saying that there is no compensation for the prostitute (baghy), and also on the foundational principle of freedom from liability (barā’at al-dhimmah). Others argued that the victim should receive compensation, as she is neither a prostitute nor a fornicatress (zāniyah), and on the notion that dower payment is the bloodprice (diyah) for the usurped vulva (al-farj al-maghṣūb). In stating their positions on this topic, the Shiite jurists frequently refer to the Sunni Abū Ḥanīfa, who opposed any compensation, and to al-Shāfiʿī, who supported it. Shiite jurisprudence is also multivocal on the correct amount of damages payable to the owner of a sexually misappropriated slavewoman. Some argued that the owner is owed 1/10th of her price if she was a virgin and 1/20th is she was a matron, while others argued that the owner is owed her dower (mahr), as well as a separate fine for defloration if she was a virgin (called arsh al-bakārah).

Another notable area of difference between Sunni and Shiite jurisprudence concerns the liability of the insane to the ḥadd zinā. According to Sunni law, the ḥadd is to be averted from all who have defective legal capacity, such as minors, the insane, and the unconscious, regardless of gender. According to some Shiite jurists, a distinction is to be made between insane men and insane women who commit zinā: While the ḥadd is to be averted from insane women, it is imposed in full upon insane men. Others, however, rejected this gender distinction, and affirmed that insane men, too, should be spared the ḥadd punishments. The Sunni parallel to this exploration of the relationship between legal capacity and sexual agency is the Sunni discussion of a man being coerced to zinā with a woman by a third party. This is debated with some vigor, with attention given to whether a coerced or fearful man can be aroused to perform, whether his enjoyment is indicative of guilt, and whether it matters if the coercion is exerted by a state authority or not.

A few outlying issues should also be addressed. Classical Islamic law drew a line between rape intra-Muslim and intercommunal rape. If a Muslim male violated a non-Muslim (dhimmī) woman, the sentence would be the same for him as if she were Muslim. However, a dhimmī man’s assault against a Muslim woman was considered a violation of the intercommunal political treaty under which dhimmīs lived in Muslim lands, and so was to suffer execution. Same-sex violation is addressed only in a limited fashion, in the context of sex between an adult male and a minor male; assault of one man by another, or one woman by another, receives little or no attention. Both Sunni and Shiite legal sources give considerable attention to injury (jināyah) that may occur in the course of coercive zinā, particularly tearing of the perineum, such as happens with the use of excessive force or where the victim is a minor. The general opinion of the Sunni schools was that a partial tear provoked a fine in the amount of 1/3 her bloodprice (diyah), while a total tear (such as causes incontinence and could even lead to death) prompted a full bloodprice. The Shiite jurists generally agreed to assign her a full diyah, and debated the necessity of also assigning her the dower (as we have seen above).

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Categories: God, History, Islam

19 replies

  1. If this is how the new generation of ‘white Salafis’ such as Jonathan AC Brown er…’address’ misinformation and ‘ignorance’ then God help us Muslims.

    Assuming, despite the total lack of referencing, that these two individuals have the authority or knowledge to narrate the positions of the different madhabs and even Shi’ites (which would make them Mujtahids, as their besotted fanboys no doubt already believe), all they did was confirm the worst accusations of Islamophobes and punish us additionally with an exercise in excessive verbiage.

    Summary/translation:

    1) There is no specific punishment for rape in Islam (according to these people), it just comes under ‘Zina’ ( = extramarital sex). So the punishment for rape is the same as fornication or adultery. This helps our image how…!?

    2) You CAN get punished for rape by death though…if you are a non-Muslim raping a Muslim woman. CRAP EXCUSE: It’s because it’s treason. Like Apostasy. And all the other reasons we want to kill people for, which also come under treason. BTW, Muslims can’t commit treason by raping someone though ‘cos…ummmmm…uhhhh…

    Oh joy! Islamophobes debunked!

    3) Raping slave girls is fine according to the ‘classical’ sources (as edited by Salafis like Brown and Co of course), but you have to pay a fine…to their owner.

    This makes Muslim look SOOOOOOOOO good!

    4) If you are the person who got raped, rest assured, you won’t get the punishment for fornication or adultery.

    Wow! Such a merciful religion!

    OR EVEN MORE SIMPLIFIED:

    ‘There is no such thing as rape in Islamic law, it comes under fornication and adultery. You know, since there is absolutely no difference between rape and fornication’.

    And then Muslims wonder why people hate them. With friends like these…

    This is simply garbage Sheikh Williams. I would be much more interested in reading your opinion or that of any non-moron with a moral compass of any kind.

    BTW, non – idiots like Muhammad Asad, way before this issue even became a problem due to ISIS etc sorted this problem in his commentary by giving the opinion of no less than Ibn Abbas that sex with slave girls is not allowed, PERIOD (or as Williams would say, ‘full stop’) and ‘what your right hand possesses’ does not refer to slave girls anyway.

    Of course, Salafi hadith spamming nut bags like Brown and Co. usually regard that opinion to be ‘weak’ and ‘inauthentic’.

    Coincidence, I’m sure.

    Liked by 1 person

  2. “Salafi hadith spamming nut bags like Brown and Co”

    purple prose indeed.

    Liked by 1 person

  3. I think the guy above mmmclmru has some issues.

    Who said Brown is a Salafi? Has he ever said this anywhere? Or are you just making it up to attack him?

    Your simplifications are childish.

    What’s being established here is history…how jurists of the past dealt with such problems. Don’t get yourself into a hissy fit over it. Take a deep breath fella. What about the non-salafi sheikh in the video in this link, why don’t you ask Sheikh Atabek what he’d do if he was a jurist?
    http://thefactsaboutislam.blogspot.co.uk/2014/01/ae-muslims-allowed-to-rape-slave-women.html

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  4. Why don’t you stop hiding behind the skirts of your ‘scholars’ and tell us if you agree with the ‘punishments’ for rape elucidated by Brown and Co or not?

    If someone raped your mum or sister, so you are cool with it being under ‘fornication’ or ‘adultery’?

    And if she was a slave would you be like ‘sorry you got raped moms but hey, at least your owner got some cash out of it! Never mind eh?’

    If so let us know so we can know your actual position.

    Being Salafi is by beliefs not statements of ‘I am a salafi’ (though you would very much like it to be. So then no one has ever been a Wahhabi since none of you admit to it), which Brown makes clear in his book, for example his veneration (literally) of Shah Wali Allah.

    Funny thing is that you actually are too stupid to understand the issues and can’t actually respond to any of them so you post this aimless drivel. Like, what’s Sheikh Atabek got to do with it?

    And I didn’t follow the link to your blog because it sucks so bad I couldn’t face it. Sorry. I rue the day someone taught you to read and write.

    I know it makes you feel good talking about stuff you don’t really understand, but you guys make me laugh: why should I ask a jurist anything? If a jurist tells me that I can rape slaves (a fantasy of Salafis anyway, as evidenced by the clearly ‘not Salafi’ hardcore Sufi/Mutazila group ISIS) as long as I pay ‘compensation’ to the owner or take a few lashes do you think I’m gonna say ‘Oh cool’?

    So dumb. That’s why I asked for someone who was a ‘non-moron’ and with a ‘moral compass’ to answer these questions and what do I get? Yahya Bloody Snow. Sheesh.

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  5. The funny thing is Williams, Brown and Co are avoiding what ISIS and their ‘scholars’ (Haddad types not restricted by UK laws) ACTUALLY use to justify their rape antics theologically:http://www.nytimes.com/2015/08/14/world/middleeast/isis-enshrines-a-theology-of-rape.html?_r=0

    Basically, it is precisely their idea, found in many scholars fatwas, that:

    1) You take over a place, the soldiers wives and or the civilian girls are now automatically ‘divorced’ and can be made into slaves
    2) Your slaves are like your wives (except they aren’t really as they had no choice. Not that Salafis give free women a choice either!)
    3) There is no such thing as marital rape
    4) Therefore you ‘CAN’T’ rape your slave as she is your property
    5) ENJOY!

    Have you noticed Sheikh Williams how no-one has actually addressed what ISIS have ACTUALLY said and done and are instead resorting to a series of fudges to try and doublespeak their way out of it?

    They say you are not allowed to hit a slave and thus you wouldn’t rape her (standard Salafi argument) but this is cods-wallop since they say you can beat your wife according to the Quran [it doesn’t say that – refer to Bakhetir in today’s translations or Zamakhshiri in the more classical period].

    It’s also funny how the ‘jurists’ and hadiths talk about not hitting your slave but this is extended to rape – it’s just like the thing about fornication and adultery including rape!

    You see, rape is such a MINOR thing that there is no need to address it specifically! I guess it is the same with murder and mutilation – there’s just no NEED to address it as it comes under ‘hitting’!

    I wonder what else comes under ‘hitting’ if rape does? War? Manslaughter? Drone strikes? Nuclear Warfare?

    Why, who knew that Sharia was so simple, everything comes under ‘hitting’!

    But then, strangely, when it came to non-Muslims, there WAS, all of a sudden, a death penalty for rape…curious!

    This is why I would like to see someone like Williams tackle this, since the ‘defences’ by people like Brown and GARBAGE and make no sense at all.

    I mean come on, their way of making Islam ‘look good’ is to say that you can take women as slaves and rape them, but don’t leave a mark or it wil come under hitting. And then you might get told off. Or get a small fine. Or nothing.

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  6. mmmclmru, you’re an odd one.

    Good night. It’s a bit chilly in London (most of the weird Muslims are Londoners so I assume you’re a proper London boy) so get your hot water bottle and tell the psychiatric nurse to tuck you in tight. Don’t let the Salafis bite!

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  7. Oh no!
    He knows where I live?!
    I’m so scared by your veiled threat!
    Please, don’t come to my house!
    You are SOOOO scary!

    Many, you suck so bad you can’t even threaten people properly. I mean, damn, as a rape apologist I was expecting you to at least be a BIT scary.

    In all honesty, even if you worked out what country London is in, you are probably too dumb to work out how to get here. Or use the doorbell.

    And they wouldn’t let you walk around with your goat/bodyguard/lover on the streets here anyway. It’s illegal still.

    The only thing intimidating about you is your abject stupidity and moral bankruptcy, as evidenced by you failure to state you position (= approval) on rape. Oh, and it is a bit scary that guys like you all secretly want to join ISIS for a rape vacation.

    At least you have enough braincells so as not to make your lame threat in a way that could get you in trouble with the police. But they watch all the morons like you anyway so…

    Oh, and your girlfriend already tucked me in so don’t worry!

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  8. So back to the actual discussion Williams, in actual fact, the actions of ISIS do not come under rape law and they most certainly don’t come under fornication or adultery. These guys are not dirty old men hiding in parks but are systematically and ‘scientifically’ raping captives. Rather this kind of behaviour comes under ‘fasad fil ard’ or ‘spreading corruption in the land’.

    It is one of only two things that the Quran specifies the death penalty for – the other is a subset of this one, which is murder. So you could say it is the ONLY thing the Quran specifies the death penalty for. BTW according to people other than Salafi nutters, the death penalty has to have a Quranic or Muttawatir hadith proof. It cannot be applied based on Ahad Hadith, Mashoor Hadith, Ijma, Qiyaas, nothing. People who actually study the diversity of Islamic law instead of navel gazing their favourite (Salafi) scholars would know that.

    Funny how Salafists, who demand the death penalty for apostasy, adultery and a whole heap of other things such as public homosexuality (and anathematise anyone who disagrees), NONE of which are mentioned in the Quran AT ALL, then curiously forget to mandate the death penalty for the ONE thing for which it IS mentioned in the Quran, namely FASAD.

    So the opinion of ‘classical scholars’ on rape is hardly pertinent to the actions of ISIS since they would already have the death penalty for spreading fasad through coercive sex and other dumb stuff they do.

    Of course, DUMB PEOPLE (Brown, Snow etc) will choose their (Salafi) sources and claim that rape on an industrial scale as practised by ISIS doesn’t come under Fasad, but we know otherwise don’t we?

    Also Williams, don’t you think that the Quran seems to assume that people are not TOTAL AMORAL PLONKERS (see above) and have a brain and some moral sense? Since the Quran tries to appeal to peoples’ existing morality and intellect, perhaps the fact that some Muslims need a narration or a fatwas to tell them that rape is wrong or that you don’t need four witnesses for rape tells us MORE ABOUT THESE PEOPLE than ISLAM?

    TRANSLATION:

    If you need someone to give you a narration or a fatwa explaining that raping people is wrong then providing this will probably not help you as you are WRONG IN THE HEAD and should probably be sent to PRISON (which you would presumably enjoy due to all of the rape that goes on there).

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  9. The logical consequence of demanding a hadith or a fatwa to tell you everything that is right or wrong is that Muslims are worse than non-Muslims, since they managed to work out that stuff like rape is wrong without a narration.

    So Islam doesn’t work like that. Not real Islam anyway.

    Also, Islam is not really for people who refuse to use their brain. The Quran is quite explicit about that. If anyone bothered to read it instead of crap posts from Brown etc.

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  10. The proof of the banality of Browns’ response and it’s unhelpfulness is obvious:

    Let’s say that all Islamic scholars, ever from the most famous to your local imam said that raping slaves was fine and was not in fact rape. So there was a super ijma on it (BTW, that’s kind-of what he is saying you know).

    Would you agree with it?

    No.

    *(unless you are mental).

    So in the end, you decided whether it made (moral) sense to YOU or not – exactly as the Quran told you. You are willing to ignore the opinions of every single scholar on this matter.

    You know the funny thing? Even if (God forbid) the Quran told you rape was fine you still wouldn’t follow it and would decide that Islam was not the religion for you. You would probably then proceed to kill the crap out of those who did follow such a book before they raped you or your family.

    It’s precisely because the Quran does NOT say dumb stuff like that that diverse people have accepted and followed Islam for as long and as widely as they have. The Quran tells you to contemplate and think and reason over matters of faith and morality and to resist oppression, blind following and argument from authority.

    When the angels questioned God about how come he was putting something on Earth which would result bloodshed (and the angels were right, mankind did indeed shed blood, even under Gods’ name), he didn’t give them a narration or a quote or a fatwa or say ‘shut up, I’m God, how dare you test me?!’
    Instead he said okay, lets talk about this, I’ll show you – I’ll show you a rational proof that this creature is better than you. Lets check him out. QED if you will.

    I get that Muslims are blind and desperate. They feel under siege, they are disempowered with their scholarly institutions largely destroyed in the post colonial era. They need someone who they think can help them. So they fall for people like Brown. It’s understandable.

    But my question: ask yourself honestly – did his post really help? Or would it have been better if he answered the questions and challenges of the Islamophobes properly instead of playing to the gallery and spamming you with scholars?

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  11. “Serve God, and join not any partners with Him ; and do good to parents, kinsfolk, orphans, those in need, neighbours who are near, neighbours “who are strangers, the Companion by your side, the way-farer (ye meet), And what your right hands possess : for God loveth not the arrogant, the vainglorious”
    (Qur’an, 4, 36)

    Certainly this explicit commandment to be good to your slaves (what your right hand possess) clearly implies that one cannot do harm to slaves and raping them is obviously among the worst of harms.

    This issue of rape has come up because of the Yazidis enslaved and raped by ISIS.

    Allah forbade the mafia ISIS from attacking, let alone enslaving, and then raping the Yazidis as the following verses show.

    Allah does not forbid you from those who do not fight you because of religion and do not expel you from your homes – from being righteous toward them and acting justly toward them. Indeed, Allah loves those who act justly. (Qur’an, 60, 8)

    Except for those who take refuge with a people between yourselves and whom is a treaty or those who come to you, their hearts strained at [the prospect of] fighting you or fighting their own people. And if Allah had willed, He could have given them power over you, and they would have fought you. So if they remove themselves from you and do not fight you and offer you peace, then Allah has not made for you a cause [for fighting] against them. (Qur’an, 4, 90)

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  12. I’m saying that ‘what your right hand posses’ doesn’t even refer to slaves in the ayats about conjugal relations, as per Ibn Abbas: Here is Asad, who is also quite Salafi, but obviously not as mental as Brown:

    4:24
    And [forbidden to you are] all married women other than those whom you rightfully possess
    [through wedlock]:26

    26:
    The term muhsanah signifies literally “a woman who is fortified [against unchastity]”, and
    carries three senses: (1) “a married woman”, (2) “a chaste woman”, and (3) “a free woman”.
    According to almost all the authorities, al-muhsanat denotes in the above context “married
    women”. As for the expression ma malakat aymanukum (“those whom your right hands
    possess”, i.e., “those whom you rightfully possess”), it is often taken to mean female slaves captured
    in a war in God’s cause (see in this connection 8:67, and the corresponding note).

    The commentators who choose this meaning hold that such slave-girls can be taken in marriage
    irrespective of whether they have husbands in the country of their origin or not.

    However, quite apart from the fundamental differences of opinion, even among the Companions of the
    Prophet, regarding the legality of such a marriage, some of the most outstanding commentators
    hold the view that ma malakat aymanukum denotes here “women whom you rightfully possess
    through wedlock”; thus Razi in his commentary on this verse, and Tabari in one of his alternative
    explanations (going back to ‘Abd Allah ibn ‘Abbas, Mujahid, and others). Razi, in particular,
    points out that the reference to “all married women” (al-muhsanat min an-nisa’), coming as
    it does after the enumeration of prohibited degrees of relationship, is meant to stress the
    prohibition of sexual relations with any woman other than one’s lawful wife.

    Problems solved…

    Oh wait, I forgot, Razi and Tabari are not Imams of the Salafis/Muhaditheen and they tried to kill them both (as well as Asad BTW, who lived out his later years in unwilling ‘exile’ in Spain). So I guess Brown ‘forgot’ about them, the same way he ‘forgot’ about Zamakhshiri and Qushayris opinion on wife beating in the Quran (Qushayri, surprise surprise, is another guy the Muhaditheen/Salafis tied to kill…)

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  13. mmmclmru i understand your frustration. I too am bothered by many of the positions taken by salafi muslims on many issues not least when it comes to women and non-muslims.

    But can you explain why you think shah waliullah is a salafi and why Brown is also one for endorsing him?

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  14. Thanks!

    If we agree that Ibn Taymiyya is a ‘Salafi’ (or rather a Hashwee Mujassim, the same thing), then it follows that Shah Wali Allah is one too – because he wrote a hagiography of Ibn Taymiyya.

    Brown, as you know, wrote his whole ‘intellectual history’ of Muslims according to the outline/works of Shah Wali Allah.

    He also holds a lot of other Salafis positions, and almost always gives Salafi answers and positions. He took over from John L Espoisito at Duke University I think, whose famous student Nathalie De Long Bas wrote a hagiography of no less than Abd Al Wahhab. I think Esposito has been accused of being a Salafi apologist. You can see if you agree, I’m not sure.

    As you know, it is a nauseating attribute of Salafis to never admit they are Salafis – same with Akram Nadwi, IERA etc

    Liked by 1 person

  15. More from Asad on sex with slaves (remember, Asad is quite Salafi too, quoting from Muhammad Abduh and Ibn Taymiyya no less)

    23:1

    TRULY, to a happy state shall attain the believers: (23:2) those who humble themselves in their prayer, (23:3) and who turn away from all that is frivolous, (23:4) and who are intent on inner purity; (23:5) and who are mindful of their chastity, (23:6) [not giving way to their desires] with any but their spouses – that is, those whom they rightfully possess [through wedlock] (1)

    COMMENTS:

    (1) Lit., “or those whom their right hands possess” (aw ma malakat aymanuhum). Most of the commentators assume unquestioningly that this relates to female slaves, and that the particle aw (“or”) denotes a permissible alternative. This conventional interpretation is, in my opinion, inadmissible inasmuch as it is based on the assumption that sexual intercourse with one’s female slave is permitted without marriage: an assumption which is contradicted by the Qur’an itself (see 4:3, 24, 25 and 24:32, with the corresponding notes). Nor is this the only objection to the above-mentioned interpretation. Since the Qur’an applies the term “believers” to men and women alike, and since the term azwaj (“spouses”), too, denotes both the male and the female partners in marriage, there is no reason for attributing to the phrase ma malakat aymanuhum the meaning of “their female slaves”; and since, on the other hand, it is out of the question that female and male slaves could have been referred to here, it is obvious that this phrase does not relate to slaves at all, but has the same meaning as in 4:24 – namely, “those whom they rightfully possess through wedlock” (see note 26 on 4:24) – with the significant difference that in the present context this expression relates to both husbands and wives, who “rightfully possess” one another by virtue of marriage. On the basis of this interpretation, the particle aw which precedes this clause does not denote an alternative (“or”) but is, rather, in the nature of an explanatory amplification, more or less analogous to the phrase “in other words” or “that is”, thus giving to the whole sentence the meaning,….. save with their spouses – that is, those whom they rightfully possess [through wedlock)..”, etc. (Cf. a similar construction 25:62 – “for him who has the will to take thought – that is [lit., “or”], has the will to be grateful”.)

    One can agree or disagree (I agree) but anyone has to admit that this sucks less and is more helpful than Browns’ waffle.

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  16. Assad’s interpretation of “of those whom their hand possesses” is interesting and I hope there is some research done into it.

    One theory that I would like to float is that as the final revelation from God, there is an elasticity to Quranic verses that allows it

    1. to be intelligible and relevant to the culture in which it arose (7th century pagan, patriarchal, tribal, etc.) and lift them out of their ignorance and depravity but to do so without creating anarchy in their society (such as what a mass freedom of slaves) would have done

    2. but still the terms it uses reach out to the farther horizon as society would make social progress in terms of egalitarianism….by that I don’t mean to say that all is peachy in the year 2015 but just that it is nice how slavery has been prohibited throughout the world, a trajectory the Qur’an, more than any other known document, anticipates and encourages.

    Relating to this elasticity is the interface of science in the Qur’an….the term of alaqah, literally something which clings, but interpreted as a blood clot by the medieval Muslims reaches out to the horizon of scientific discoveries of the embryo beginning as form that sucks the blood out of the mother in it’s clinging form but also appears visually almost identical to the life form which clings, the leach.

    Anyhow, the Qur’an tells us to follow the best of God’s word….thus providing us with a hermeneutic that is not static but dynamic to reach further into the horizon towards justice and goodness. This is something that Professor Asma Barlas argues for….

    http://en.qantara.de/content/interview-with-asma-barlas-it-is-the-right-for-every-muslim-to-interpret-the-quran-for

    Again, I hope their is more reflection and research on the interpretation of Assad which is to my surprise based on the above comments based on the companion Ibn Abbas (know to be the interpreter of the Qur’an and a narration attributes to the Prophet the he prayed for Ibn Abbas to that have that skill) and some famous exegetes.

    Allah knows best

    Like

  17. In the name of Allah the Compassionate the Merciful.

    Subhanallah It is quite enthralling to witness how creative sometimes muslim commentator expressing their disagreements to one another..but lets not rushing to label any scholar like Dr. JAC Brown and impose a firqah on him as that does not do justice to him.

    But I get bro mmmclmru outrage that how a scholar like Dr. JAC Brown calibre seems to endorse that raping slaves was fine and was not in fact rape.

    I don’t think I fully agree with such conclusion. My understanding from the post, Dr. JAC Brown position is that early muslims jurists was aware on the category non-consensual sex on slave women and recognised it as a violation. Yes he contend there was an era when slave women do not have proprietarily over their sexuality their masters do, but this should be understood as a lawful relation like our understanding of marriage, so their owner can consensually have sex with them at any time they want. The post don’t specify what if the perpetrator of non-consensual sex is the master?,, This maybe due to the fact no such a fiqh ruling from classical era…

    I may not a worthy person for an opinion but I personally think this the area where ijtihaad is required. Although female sexuality and consent, is relatively new in Islamic vocabulary, Upholding justice and be just is not! (Qur’an 5:8 ). This relation must also be done in lawful, good conduct, consensual context, anything against it would considered a big sin for a muslim thus committing violation against God’s instruction in the Qur’an. (Q 4:25; 4:36 ; 24:33 )

    Allah Knows best.

    Like

  18. I vehemently disagree with Brown as well. His assertions are ridiculous. Worse, his ideas on Islam seem more rooted in a kind of anthropological approach rather than a theological one. In other words, at best he’s simply parroting a position rather providing a careful exegesis. I wrote about this in more detail here:

    https://thecrookedmuslim.wordpress.com/2015/08/26/isis-dr-jonathan-brown-and-concubinage-in-islam/

    Like

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  1. ISIS and the Theology of Rape (and the Rubbish Responses by Muslims) | Asharis: Assemble

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