The Rationality of Islamic Sexual Ethics: Zina

“Every king has a sanctuary, and the sanctuary of Allah is what He has prohibited.”

[dropcap size=big]P[/dropcap]eople sometimes jokingly ask, why is it that driving requires a license, but you can have children without a license or any kind of certification? It is usually a lighthearted remark, but, when you think about it, this is a legitimate question. If driving or teaching at a school, practicing medicine or law, or even being a plumber requires certification, then what about something that is far more sensitive, far more significant like having children and raising them?

After all, children are our future, and the state of our society as a whole depends on how children are brought up — their morals, their sense of responsibility, their character, and so on. As the National Criminal Justice Reference Service and other extensive research studies report, children who grow up without proper parental influence are far more likely to become involved in drugs and crime, to face unemployment, not to complete their education, to fail to become productive members of society and upright human beings. This, then, has a toll on all of us, on all members of society.

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Given these high stakes, one has to wonder how any civilized society could allow its people to have children without having some kind of regulation to ensure that all children are born to competent parents, parents invested in their children’s well being and future. Isn’t it a child’s right to have a stable household and parents capable of properly raising him? Isn’t it our right as members of society to make sure incompetent, irresponsible people in our midst are not having children that they will neglect, children who will be more likely to become burdens on society and, hence, each and every one of us?

The “M” Word

Islam, of course, does require just such a license — a nikah, i.e., the marriage contract. Properly done, according to Prophetic guidance, a nikah ensures that a couple is in the best position to raise a family, with the full support of the extended family and the community at large. One of the biggest wisdoms of the nikah, as all classical scholars agreed, is upholding the rights of children and, thereby, upholding the rights of society at large.

It should go without saying that there are Muslim marriages that fail and Muslim married couples who will not make for good parents despite having had a nikah, etc. But my claim is not that every married Muslim couple will provide better conditions for raising children than every single parent household. Rather, the claim is that, overall, we significantly increase the chances of providing better conditions for raising children in the context of a marriage between biological parents than in the context of unwed parents or single-parent households. This is a claim supported by empirical data, as cited throughout this post. It is also supported by rational reflection, and ratified by the practice of human societies throughout the ages.

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Furthermore, beyond marriage as practiced by non-Muslims, what distinguishes Muslim marriage is that the different Islamic legal requirements, conditions, and supererogatory elements of the nikah — as practiced by the early Muslim community and generations of Muslims thereafter — further enhance the chances of successfully raising children and contributing to the flourishing of a community and society writ large. Requiring the mahr, for example, or that the bride have a wali (according to the majority opinion), etc., all practically and, therefore, rationally contribute to the chances of success of the marriage and its ability to produce children who will positively impact the world. Tying each of these Islamic legal requirements to that overall benefit requires a detailed and extended analysis beyond the scope of this post. (I will leave it as an exercise for the reader.) But my broader argument does not hinge on that analysis. For the time being, we can proceed with the less contentious claim that promoting marriage — and preventing extramarital sex which directly undermines it — positively correlates with a whole host of public benefits.

(Of course, besides promoting public benefits, there are countless other wisdoms and rationales for prohibiting zina, i.e., premarital and extramarital sexual relationships. Classical scholars, for example, often mention the rights of men to know their progeny, the rights of women to be supported by their children’s fathers, the rights of larger kinship bonds, the rights of children in knowing their own lineage, preserving honor more generally, etc. But, for the sake of argument, let’s focus on the social impact of single parenthood and unwanted pregnancies for now, since this is the kind of reasoning that resonates in the modern liberal secular discourse that presumably cares so much for human rights, autonomy, and freedom.)

Let Me be Clear…

My purpose here is not to stigmatize single mothers or fathers or their children. Obviously there are many reasons why single parent households arise: a married couple gets divorced, a parent dies, etc. Nor is my purpose to necessarily stigmatize those individuals who engage in premarital sex in this day and age. The unfortunate reality is that most people today, especially in the West, are ignorant of the dangers and ugliness inherent in zina. Zina itself is no longer taboo, and so genuinely ignorant people should not be judged.

Rather, my purpose is to reacquaint people with the claim that, for very good reasons that have nothing to do with one’s personal religious beliefs, extramarital relations are an objective evil. By doing this, I aim specifically to counter the widespread attack on Islamic sexual ethics by liberal secular ideologues who strive to portray Islam as outmoded or even inhumane. I believe that this attack needs to be countered with clear arguments and evidence, and talking about the enormous negative societal effects of extramarital sex is a good starting point.

Also by way of disclaimer, I should say that I am aware that arguing on the basis of “society” and the overall “public good” is anachronistic from the perspective of traditional Islam. But, again, I am deliberately (yet, cautiously) using this language in order to be conversant with modern normative discourse, which often takes the form of sociological analysis.

I am also sensitive to the characterization of traditional religions as prioritizing communal benefit and modern liberalism, by contrast, putting a premium on individual autonomy. Based on this, it may seem that my appeals to public good and societal cohesion are just another way of saying that individuals must sacrifice their sexual autonomy for the sake of the overall good. In actuality, I find this supposed tension between communal well being and individualistic autonomy incoherent, since, from one perspective, what benefits people individually will, in the collective, benefit people in the aggregate and vice versa. In this light, then, abstinence is not merely a sacrifice for the sake of the collective good, but a sacrifice that contributes to the good of people in the aggregate and, thereby, the good of people on the individual level. We will also see it work the other way, viz., as contributing to the good of people on the individual level and that, in the aggregate of millions of lives, contributing to the good of people collectively. In this way, we can bypass the charge of anachronism when employing inexorably modern concepts like “society,” “demographic indicators,” “population,” etc.

Critics of Islamic Sexual Ethics

As it turns out, Islamic sexual ethics have been the target of unrelenting criticism from modernists and liberals for decades, critics who argue that Islamic law stifles the sexual freedom and autonomy of individuals by prohibiting premarital sex. If two people love each other, they argue, why can’t they consummate that love? Who is harmed by such a consensual relationship? Clearly, there are no victims, so Islamic sexual prohibitions must only be based on prudery and outmoded sexual repression. That is why, the argument continues, we must spurn these prohibitions in favor of freedom and the human right to sexual self-determination.

But this argument against Islamic law is woefully inadequate. To the contrary, it can be argued that prohibiting zina clearly protects people’s freedom and autonomy and promotes human rights. How? Because such prohibition effectively curbs the number of children being born to single mothers and couples who are not in a position to take adequate care of them. This in turn benefits the interests of children and hence, the interests of society at large. If crime rates go up, for example, because one generation ago, a large percentage of children were born out of wedlock, then those higher crime rates have a direct impact on my personal quality of life. If I have to pay higher taxes because the police force has to be beefed up, again, that is an imposition on my personal autonomy and freedom, as my personal wealth is siphoned off by government agencies and social programs that are taking care of children born of the ill-advised decisions of irresponsible yet sexually active individuals.

There is all manner of sociological evidence to support this line of reasoning. As one example, consider the hugely popular, bestselling book Freakonomics. In it, the authors, Levitt and Dubner, present research that correlates the legalization of abortion in America and other countries with subsequent drops in crime rates in those countries. They explain this correlation by arguing that legalizing abortion made it easier for women to terminate unwanted pregnancies. This, in turn, meant that fewer unwanted children were born and, hence, that fewer children grew up in detrimental environments and households that would make them prone to a life of crime.

Pro-abortion advocates often use this sociological data on crime rates to argue — much to the chagrin of their conservative, pro-life interlocutors — that abortion greatly benefits society as a whole. But the obvious conclusion that goes unnoticed, however, is that these same benefits of abortion could equally be achieved simply by preventing premarital sex. The exact same logic applies — if fewer people are having sex outside of marriage, there are fewer children being born to mothers who are not in a position to provide an upbringing that will prevent those children from eventually falling into illegal and destructive behavior, and so on.

Another way to look at it is that abortion is simply one of many ways to control reproduction. Contraception is another avenue. Forced sterilization is yet another. And, of course, sexual norms against zina, as found in Islamic law, are just another way to control how people in society reproduce (primarily from the perspective of quality and not necessarily quantity). Research shows that, on a societal level, crime rates, education levels, unemployment, drug use, and future family income, all can be significantly influenced by controlling reproduction via access to abortion and contraception. Obviously, those same benefits would, mutatis mutandis, obtain by prohibiting premarital sex.

The Scarlet Letter

And what about adultery? The concept of zina is inclusive of both premarital sex and adultery. Obviously, engaging in infidelity very often leads to divorce, i.e., creating those single-parent households that are correlated with numerous societal ills. In that way, adultery indirectly contributes to those ills in much the same way premarital sex does. Even if infidelity does not lead to divorce, however, there is empirical data to suggest that the instability in family life caused by unfaithful parents can negatively impact children and, therefore, correlate with those societal ills as well.

All that being said, most people today intuitively understand that cheating on one’s spouse is wrong. Even a large proportion of individuals actively engaged in adultery admit that it is immoral and feel remorse and shame. In other words, the social taboo against adultery is still alive, unlike that of premarital sex. In the language of Islam, people today have not lost touch with that part of the fitra that rails against this particular fahisha. Given that society’s moral intuitions about adultery are still sound in this way, the need for Muslims to defend Islamic law’s prohibition of extramarital affairs is not as pressing as it is for fornication (and liwat, or sodomy).

That being said, there have been recent efforts in Western society to normalize adultery and “swinging,” as “cheating websites” are promoted by national advertising campaigns, shamelessly encouraging married individuals to find a lover (or two…) on the side. If the day comes when even adultery is seen as a harmless, victimless act, then Islamic law, which imposes capital punishment for convicted adulterers, will be in need of further defense by Muslim commentators.

The Modern World — A World of Orphans

Even without the empirical data, logically, all this makes perfect sense. It is reasoning you can understand and accept whether you are Muslim or not. And we can see this logic spelled out in the writings of Muslim jurists through the centuries as well as in the Quran itself. For example, reflect on how much emphasis Allah puts on taking care of orphans in the Quran. The orphan is one who is deprived of the great benefits that children with parents are blessed with. Logically, if orphans are considered so destitute due to not having parents, that implies that parents (are supposed to) provide an enormous, incalculable boon to children by way of nurturing them, educating them, raising them with important values, etc.

But in the modern world, a significant proportion of children are orphans for all intents and purposes because, even though they have living parents, those parents do not want them or their fathers or mothers do not feel obligated to stick around for them, or a single parent has to work full-time forcing the child to be perpetually in the care of strangers and the broken public school system, and so on. According to the CDC, over 40% of children born today in the US are born to single mothers.

The incomparable benefit that parents are supposed to be for their children is simply not there in our modern world. We live in a world of de facto orphans, children with absentee parents who end up being raised by a cold, machine-like state system that processes human beings like so much cattle. Is it any surprise that teens and adults nowadays feel no obligations or affinity towards their parents, and the Islamic injunction to respect and care for one’s parents rings hollow in the minds of many? Is it any surprise to see some of the alarming societal trends — the increase in substance abuse, the dismantling of families, the rise of extreme antisocial behavior including mass shootings — burgeoning all around us? All these phenomena are connected such that messing with something seemingly small and insignificant, like undoing the social taboo against extramarital sex, ultimately causes the entire edifice to collapse.

The Anticlimactic Prophylactic Tactic

Now, the inevitable counter argument to all this is, what about contraception? Hasn’t contraception made traditional norms against premarital sex obsolete?

Well, to begin with, let’s not forget that reducing social problems like crime, drug addiction, unemployment, etc., is only one of the many benefits of refraining from premarital sex. For the purposes of this post, I focus on that particular benefit because it aligns nicely with liberal secular reasoning. The only moral principle that liberal secular reasoning endorses is the Harm Principle, roughly defined as the idea that an act is only considered immoral if it causes harm. In fact, the Harm Principle is often used to argue against Islamic sexual ethics because premarital sex, so long as it is consensual and not incestual, etc., causes no harm to anyone, or so it is argued. But, as we have seen, there is clearly great harm to any potential children and to society at large, since it is everyone in society that has to deal with the eventual impact of premarital sex on crime, unemployment, and all the other societal ills correlated with unwanted pregnancies and single-parent homes.

Appealing to contraception in response to this, then, is meant to undercut our reasoning. If a person can have premarital sex and the possibility of conception is foreclosed, then where is the harm, really?

The answer to this is simple. First of all, who decided that the Harm Principle is the be-all, end-all of morality? If we give a cursory glance at the complex, intricate, and expansive rules, attitudes, injunctions, and nuances that constitute the moral and legal thought of even the most secular of nations and their peoples, we see that there is much that cannot be reduced to the directive: do no harm. Many notable ethical, political, and legal philosophers have concluded as much in evaluating the Harm Principle itself.

But even if, for the sake of argument, we were to accept the Harm Principle as our sole basis for judging sexual relationships as immoral, we would still be able to arrive at —  or at least approximate — the norms of Islamic law. This is because “harm” itself is a very general term that can encompass any number of things. As it turns out, harm is a rather subjective concept, and even beyond personal subjectivity, the notion of harm can be very culturally specific in that what one culture sees as harmful, another finds innocuous, and vice versa.

But even if, for the sake of argument, we limit ourselves to modern Western culture, we can still identify a number of clear harms associated with so-called “sexual freedom.” In her book, A Return to Modesty, Wendy Shalit reviews numerous studies showing the debilitating repercussions upon individuals’ psyches, particularly those of young women. She cites bulwark feminists admitting that, “Girls today are much more oppressed [than they were prior to the sexual revolution]. They are coming of age in a more dangerous, sexualized and media-saturated culture.” Another scientific study she cites discovers that sexually active unmarried teenage girls are three times as likely to report that they are depressed. But depression is only part of it — eating disorders, low sense of self-worth, higher suicide rates and various psychological disorders are all positively correlated with premarital sexual activity, especially for females.

On a more conceptual level, Shalit wonders how casual sex, dating, and hooking up could ever be considered good for women. As many world religions and past cultures recognized, to limit men’s access to sex is prime leverage and a unique source of power for women. Why would modern “liberated” women relinquish that power so cheaply by having sex with a man who has shown minimal to no commitment to her (or to any potential children)? Not surprisingly, with the rise of casual sex, marriage rates have plummeted, as men simply see no reason to get married. And the idea that women want sex the same way men do and that they respond to casual sexual encounters in the same way men do has been thoroughly debunked by scientific research that shows how, even neurologically, women are especially harmed by “no strings” sex.

So, on multiple levels, we see that a reasonable case can be made for the Islamic prohibition of zina. And all the while, we have been assuming that access to contraception is effective at reducing unwanted pregnancies. But, in fact, this is a faulty assumption because, if the existence of contraception coupled with widespread sex education were enough to prevent unwanted pregnancies, why has single parenthood continued to rise decade after decade for the past 50 years, such that single-parent households have tripled since the 1960s? Is it that three times as many people in the present day want to raise a child alone and face the monumental financial and emotional burden that that task involves? Not likely.

And finally, I began this post with an analogy about different kinds of certifications and licenses. When you look at airplanes, they have had autopilot for decades — that does not mean pilots do not need to be certified before being able to safely fly a commercial jet! Similarly, the existence of contraception does not annul the need for a person to be licensed (via marriage) in order to safely engage in sex. In both cases, multiple lives are at stake, and, naturally, the greater the stakes, the greater the need for regulation.

The Rationale of the Hudud

Before starting let me just make the disclaimer that my intention here is not to make a political or juristic argument in support of implementing hudud in any present country or community. Furthermore, my intention is not to justify or defend the implementation of hudud as it is practiced in various parts of the Muslim world today. The complex questions of if and how hudud are applicable and operationalizable in a modern nation state generally or in a particular country specifically are best left to qualified legal scholars, theologians, and policy makers.

Separate from the practical considerations of fiqh and siyasa, my concern is purely with the moral dimension of hudud, specifically as it was practiced historically by the Prophet 'alayhi'l-salām (peace be upon him) and his Companions. The historical record is clear that the Prophet 'alayhi'l-salām (peace be upon him) and his Companions enforced hadd punishments for sexual misconduct: stoning and lashing. Many modern people, whether Muslim or not, are appalled by this and take this as evidence that Muhammad ibn Abdullah 'alayhi'l-salām (peace be upon him) was not the Messenger of God and that Islam is not a religion of peace but rather one of barbarity. Given this, it is necessary for Muslims to address what is ultimately a moral concern on hudud. And as it is a moral concern, the best way to address it is not with the hackneyed apologetics about hudud being inapplicable without a legitimate caliphate, etc., but with moral reasoning and argumentation completely separate from the dicey conversation about how different, often superficially Muslim regimes enact hudud within their messy political contexts in the modern world.

The difficulty people today have with the notion of hadd for zina can be broken up into three distinct moral questions.

1. Is premarital and extramarital sex immoral?

2. If so, should that immorality be a matter of criminal justice, i.e., subject to prosecution and penalty by authorities?

3. If so, what is appropriate punishment?

Let’s address these questions in order.

As for the immorality of zina, this is what I have made a case for throughout this post, using reasoning that even proponents of liberal secularism can countenance, if not outright accept.

As for question two, i.e., whether zina should be a matter for policing and the courts, we should acknowledge that premarital sex is very much a public concern. If we accept the immorality of zina, as per question one, and we recognize that zina is certainly not a victimless crime and can have devastating public consequences when practiced on a large scale, then why shouldn’t enforcement and judicial process be on the table? In fact, it would be irrational for us to recognize all the harms associated with zina and then not think that some form of public sanction should be involved to deter destructive behavior, and so on. And, of course, Islamic law has detailed procedures that clarify what this enforcement and judicial process entail, e.g., court structure, evidentiary standards, how to deal with false accusers, sentencing, etc.

Once we agree that zina is immoral and ought to be criminalized, the question remains of what punishment is most in accord with justice. Now, it is helpful to recognize that the question of how criminals should be punished is one that Western ethical and legal philosophers have not come to any consensus on. Different theories speculate as to whether enforcing justice should be punitive, retributive, preventative, expiatory, reformative, etc. Even the question of capital punishment itself is hotly debated to this day.

So, if we have already begun to make a case for why zina ought to be publicly regulated, as per question two, and if all that remains is the question of what form that regulation should take, then a number of options present themselves. Different cultures historically have had various unique methods to punish those who violate norms and break taboos. If we limit ourselves to Western culture and recent history, incarceration is the most widely used punishment (or “rehabilitation”). Recently, however, Peter Moskos, an associate professor at John Jay College of Criminal Justice has written a very persuasive book defending the practice of flogging. In Defense of Flogging deserves to be read in full, but Moskos summarizes the main arguments here. He argues that, while many today believe that corporal punishments such as lashing are “cruel and unusual,” in actuality, the prison system is far more brutal, excessive, and even tortuous. He asks readers whether, given the choice between five years in prison and ten lashes, which would they choose? By asking us this, Moskos forces us to question whether lashing really is as severe as we might first suppose. Overall, Moskos convincingly undermines the conventional view of lashing, and his book has been recognized a “Favorite Book of the Year” by Mother Jones and earned Moskos recognition as one of Atlantic Magazine’s “Brave Thinkers of 2011.”

All in all, we can provide reasoned justification and explanation for hudud when it comes to all three questions. While hudud in response to zina may at first have seemed completely alien and inhumane, upon further reflection it is rendered at least minimally reasonable by way of these considerations. And that was the point of this entire exercise — we wanted to articulate a rationale for the hudud that a modern person could see as reasoned and within the bounds of moral possibility, even if ultimately that person cannot endorse Islamic law himself. In Western universities, for example, a student will study many varieties of legal and moral theories, and while that student may not feel compelled to accept the theories his professors teach him, the student has to admit that those theories are at least worthy of study and that reasonable people can agree to disagree on the applicability and acceptability of them. This is one way Muslims who do endorse Islamic law can speak to their interlocutors about things like hudud without worrying about being taken for irrational, barbaric, mindless, religious zealots. Reasonable people can disagree.

Conclusion

What we have seen is that, even if one is not religious per se, the rational merits of prohibiting premarital sex and adultery are more than evident. And all the sociological evidence supports this.

To summarize, premarital sex is not a victimless crime, as many of us have been led to believe. It is a major crime that most modern nations have allowed to run rampant despite the vast human toll. This in turn affects the crime rate, it affects the percentage of the population that requires government assistance through welfare, unemployment benefits, etc. — in effect, it makes people far more dependent on the state, thus increasing state power exponentially, as tax collectors draw increasing amounts of wealth from the population to foot the bill for these social assistance programs. It is no wonder that modern nation states have shown no interest in upholding the sexual ethics that human societies have depended on for thousands of years.

In sum, we can make a compelling case for why Islamic sexual ethics are rationally and ethically viable compared to the liberal secular alternative. This is not to say that the wisdom (hikma) of avoiding zina can be reduced to the reasoning explicated here or that the applicability of Islamic sexual ethics in an individual’s life depends on rationally working out such arguments. Rather, we want to speak against the notion, entrenched in modern society, that religious sexual norms are simply irrational, primitive taboos. In actuality, we believe that our religion is the best guarantor of human interests broadly and, epistemologically, this fact is accessible to the rational mind upon reflection. At the very least, even if someone does not ultimately agree with all this reasoning, he can admit that it is reasonable. And that is enough to characterize Islam’s sexual ethics concerning zina as rational and not simply prudish, close-minded, backwards, cruel, and all the other cheap adjectives used to denigrate Islamic law vis-a-vis modernity, liberal secularism, etc.

Ultimately, the significance of talking about the rationality of Islamic sexual ethics is that we, as Muslims, can be confident that Islamic norms can be defended specifically from the perspective and in the language of the dominant moral philosophy of our times, i.e., liberal secularism. Unfortunately, many Muslims are not aware of these kinds of arguments and, therefore, take a fideistic attitude towards much of Islamic law, i.e., they accept Islamic norms on faith and little else, implicitly endorsing the modernistic view that these norms are pure “religious taboos” with little rhyme or reason to recommend them to a thinking mind. Against this, various arguments such as the above can be deployed to rationally satisfy Muslims and non-Muslims alike who may not be intellectually convinced of the moral and rational viability of a 1400 year-old religion. Once the mere viability and reasonability of Islam and Islamic law is accepted, then a more fruitful debate can take place regarding the superiority of Islam as an ethical, societal, spiritual system and way of life — guidance for mankind from the Lord of all that exists.

 

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25 responses to “The Rationality of Islamic Sexual Ethics: Zina”

  1. IbroSaunks says:

    Interesting read. I guess though that it’s harder to argue the rationality of stoning to death as punishment for adultery.

    • The basic rationale there is much the same as what is spelled out above. In addition, we have to consider how different civilizations understood these moral violations and the threat they posed to humanity overall and basic communal institutions. I didn’t get to this in the post, but premodernity, family organization was the primary communal structure upon which people relied. Everything went through the extended family, e.g., business and one’s livelihood, education, health care, dispute mediation, and much more. Today, all these areas of life fall under the purview of the nation state and its corporate extensions, so we lose this sense of the importance of family cohesion and, correspondingly, how deep of a violation and how dangerous and disruptive something like adultery really is and was for past societies. I hate to put it this way, since the term is overused and abused, but the modern equivalent in today’s secular moral discourse is terrorism. Adultery is akin to the most abject terrorism, when so much rides on kinship bonds and maintaining the basic building block of society, which is the family. So, if we can better understand why adultery was seen and experienced as such an enormity, then we can start to imagine the rationale for the punishment. One of the rationales for punishment, after all, is future deterrence, as even modern legal theory recognizes. And if the violation is great enough, what is needed to effectively deter that action has to match in severity. Of course, we can also mention how, given the evidentiary standards, i.e., the need for four witnesses, and the procedural nature of prosecuting adultery, as we know from historical records, i.e., the sira, we can better understand how “public” of a violation a convicted adulterer would have had to have made. Overall, when we come at the question of stoning with these contextual factors in mind and from a purely secular perspective, we can start to see a reasoning there, even if we don’t agree with that reasoning, instead of simply assuming that any society that stoned people for sexual impropriety is barbaric, etc. That knee jerk to assume that of other civilizations should also strike us as ethnocentric and chronocentric. Anyway, a lot of consideration here that I didn’t include in the post but may inshaAllah expand on in a separate installment of this series. Want to reiterate the disclaimer also that my comments here are from purely a moral theoretical perspective, trying to understand how something like stoning could have been understood as morally and rationally possible by people of the past and not commenting on anything going on today, politically, legally, etc.

  2. Sarah says:

    Well written but most people’s issue is not with the sexual ethics but with the burden of punishment. It’s the Scarlet Letter situation – women carry the burden of evidence of zina (pregnancy) and hence are the ones who will get flogged/stoned, whereas it would be next to impossible to prove a man guilty.

    • Experts in fiqh can correct me, but pregnancy alone without witnesses or confession is not definitive evidence that zina occurred according to the majority of scholars.

      • Sarah says:

        Then this is an issue that we should face in terms of morality and some cases of classical fiqh, as some Malikis see pregnancy as proof, unless I’m much mistaken – there was a rather infamous case where a Nigerian woman had the punishment carried out on her using that legitimate interpretation of the law. Not to mention, if a man brings his wife to court for committing adultery (say it’s a more obvious case, where the man was absent for a year and couldn’t be the father, and he doesn’t want the child attributed to him), she can hardly stand as a truly repentant believer before the court and revoke the inevitable punishment as she is meant to, by taking a sincere oath that Allah’s curse be upon her if she lies. It’s worth taking note that many scholars consider that the husband can accuse his wife this way without witnesses as mentioned in Surat al Nur (and as would apply to this above situation), but a woman cannot accuse her husband in the same way. Maybe this is just my perception, but I find it hard to understand why the law, as its been presented to me, seems skewed in this fashion, and why lying would be rewarded as opposed to truth or silence.

      • malick says:

        There is a lack of consensus on that issue. Various scholars from various schools conclude that pregnancy is definite evidence of sex outside the bonds of marriage.
        My main problem however with the post, though eloquently argued, is not with the consequences of zina, whether moral, societal, financial of familial. It revolves around the issue of punishment, as evidenced by this quote “The historical record is clear that the Prophet ‘alayhi’l-salām (peace be upon him) and his Companions enforced hadd punishments for sexual misconduct: stoning and lashing.”
        The historical record is not clear at all that the Prophet practiced stoning. We have gone out of our way to rewrite the historical record based on the hadiths, meanwhile and thereby undermining both the preponderance of the Quran and its silence on that subject (stoning), the merciful nature of the Prophetic leadership/nature, the inherently personal nature of sin and the allowance for faith to be subject to time, culture, area and psyche, as evidenced by the intellectual process of the imams and their peers.
        One can make a case of the doubtful nature of those hadith suggesting the practice of stoning by the Prophet and his companions, and many scholars throughout the ages have refused stoning as a valid, divinely ordained punishment for zina.
        If we, therefore, admit that stoning is “perhaps” not a valid option for punishment, it leaves only flogging as such option (which is one of the punishments offered by the Quran.) That, I think, sufficiently challenges the subject enough to arrive at a stand-still even when we agree on, if not what the definition of the crime is, but how it is documented.
        Unless one self-incriminates, proving zina beyond the shadow of doubt, which is an essential component of the law (as Islam refuses to sacrifice the person to the ideal), becomes a problem if the proceedings follow the Quranic process. The scholars have had to develop and interpolate, creating a hybrid system of law that combines the Book and the sunnah, the one clear, the other anecdotal. Considering that shariah law is not uniform across, necessarily so, where do we go then even when the sin/crime is properly documented?
        Another thing that seems to get lost when discussing these issues is the important difference between sin and crime. One is personal by nature, the other communal. Zina is a personal crime by nature, so is drinking alcohol or eating pork. Turning it into a crime in order to legalize and codify the punishment is not the solution. It is a behavior as inherent to humanity as desire, and it will not be repressed out of existence at the tune of flogging or stoning.

        The muslim’s behavior will not be changed through force and punishment, it will be changed through reasoning and enlightenment, patience and guidance…so I do appreciate your aim to show the moral and societal costs of the act.

      • M. Mahmud says:

        It is absolutely clear Rasulullah sallahualayhiwasalam stoned adulterers to death.

  3. In response to malick above, the thing about my argument is that it only claims to be reasonable. This means that we can disagree on details related to the historical record, for example, whether stoning was implemented by the Prophet (sas) or not. We can also bypass the myriad details of historical fiqh and scholarly interpretation. The point is, even if we assume the “worst case,” i.e., the case most repugnant to modern sensibilities, the case where stoning is divinely mandated, even that case can be supported with moral argumentation. Even if one ends up fundamentally disagreeing with this argument, that does not make the argument illogical or incoherent and, therefore, irrational. There is a difference between disagreeing with an argument (e.g., because one finds it unsound), on the one hand and, on the other, claiming an argument is invalid, i.e., logically fallacious and, hence, incoherent. The latter is much harder to substantiate. Now experts in fiqh and historians can argue whether ruling A or ruling B is part of the sharia and the normative Muslim worldview, and so on. But I have no stake in that debate. My interlocutors are those who claim sharia, as manifested in things like stoning or hadd generally, is irrational, i.e., indefensible on the basis of morality and human intellect. Obviously, one approach to this is to flat out deny that sharia includes those “worst cases” and anything else that fails to conform to modern moral sensibilities, i.e., the Reza Aslan approach. In my opinion, this is not a winning strategy and it is not intellectually honest. Because when you say, “many scholars throughout the ages have refused stoning as a valid, divinely ordained punishment for zina,” the question remains: what about the other many scholars who did affirm the validity of stoning? Merely pointing out the existence of diversity of opinion does not substantiate the claim that stoning or X is not a part of sharia. As for your assertion that zina is personal by nature, not communal, how do you respond to empirical/sociological arguments in the post?

    • malick says:

      The problem I see with the logic of “…even if we assume the “worst case,” i.e., the case most repugnant to modern sensibilities, the case where stoning is divinely mandated, even that case can be supported with moral argumentation” is that, indeed, everything can be supported with moral argumentation.
      And one of the flaws of moral argumentation is that too often it rides on an existing situation to justify its existence, or it cherrypicks the data to suit its purpose. There is a retroactivity to it that makes every single thing justifiable. In other words, hindsight is 20/20.

      Another issue with moral justification of social issues is that it relies on making the social issue of concern fit into a specific, convenient box, shaving all the angles, the curves and edges in order to make it fit into that box we can then label and show as exhibit one.
      This happens with homosexuality as it does with premarital/extra-marital sex. To hear religion discuss those issues, they are no more than the act of morally bankrupt people who either care little that it is morally wrong, subject as they are to shaytan’s influence, or know but care little than it is wrong, subject as they are to shaytan’s influence. There is a marked tendency to make them issues that exist in a vacuum, caused or influenced by society at large, but not by the individual forces that make up society.
      The reasons someone might commit zina are multiple, and many of them are not simply a matter of moral decrepitude. The social/marital conditions that drive people to do such things are not easily understandable to people who are not in similar circumstances. One of the solution offered in the Quran is that a man might marry up to 4 wives, which is unavailable to any man who lives in the West. There is a strong likelihood that there a great many women who are subject to great societal/economical pressures that much easily lead to premarital or extra-marital acts.

      I agree with you that “Merely pointing out the existence of diversity of opinion does not substantiate the claim that stoning or X is not a part of sharia.” What the divergence of opinion does however is to question the validity of the established narrative. If there are two diverging opinions, what makes one more valid than the other?
      What is does also, is to force us to ask ourselves what is sharia? Better yet, is sharia law as we know it the expression of divine wish? To take it further, which part of sharia law is divinely ordained? That is a necessary question since shariah law as we know it seem more the expression of temporal and political expression than a legacy of mercy from the Merciful and His Prophet SAS.
      Do we recognize ourselves in Iranian sharia law? In Saudi sharia law? In Pakistani honor Killings? The “crime” of apostasy is deserving of the death penalty under most sharia laws, where from does that law derive but an intellectual conclusion based on a historical record that may or may not be true, BUT that goes directly against the quranic record? How do those diverge from the one ISIS practices?
      The requirement of 4 worthy witnesses to most crimes was supposed to be the garde-fou to insure we do not sacrifice the person to the ideal, yet sharia law as we know it is the greatest expression of the value of the ideal trumping the value of the person. And if the 4 witnesses were necessary part of the structure of sharia law, how come they are no longer?

      Regarding “As for your assertion that zina is personal by nature, not communal, how do you respond to empirical/sociological arguments in the post?” I do not imply that personal actions have no impact on the communal. Far from it, everything one does has an impact of the community, whether local or extended. I agree with you that promiscuity in general has a negative impact personally and communally. And as I said before, you do a good job showing those impacts. I, however, have an issue with the leap to offering sharia as the necessary tool for curbing it…bringing to mind the saying about the hammer and the nails.
      Sociological/emotional impacts are also very much based on one’s culture and one’s experience. The woman who sleeps with her boyfriend, in a culture where such is acceptable, and they are in a committed relationship that is practically marital, whether they live together or not, is not subject to the emotional torments we claim are attached to the unmarried sexuality. The same woman, engaged in a marriage where sex is a tool of oppression and abuse will experience the emotional and psychological torments you mention.

  4. Surah Yasin says:

    Well described post. Actually we all know better what we are actually doing. Islam is not against you. Islam is actually against all the bad habits. Those who do/perform zina. I am 100% sure they know that they are doing bad thing. But they can’t stop their Nafs.

    Anyways wonderful post. Thumbs up!

  5. Said says:

    This article argue that adultery is wrong based on the potential harm to the society arising from the unwanted births and single parents. This is based on claim that children without proper parental involvement in education are more likely to engage in crime and become unproductive part of society. And concludes that adultery should be illegal and punished to limit the potential harm to the society.

    This argument is not supported by any quantitative data which would show (1) how often the adultery leads to unwanted children; (2) what is the proportion of children without proper parental involvement conceived in extramarital sex as compared compared with children conceived in wedlock.

    I agree, that children should be cared after and be educated in supporting and loving environment. However the function of sex is not only procreative, but also is a way of expression of affection, tenderness and love. If performed with a proper contraceptive methods the risk of pregnancy can be limited to a minimum. The remaining cases of unwanted pregnancies can be addressed by abortion rights.

    Trying to prevent unwanted children by punishing the extramarital sex would lead to a more harmful situation, where the autonomy and privacy of people is inferred by government. This would require a lot of public money spent on finding the adulterers, which could instead be spent on sexual education and accessible contraception for everyone.

    The second argument against adultery argues that the teenage unmarried and sexually active girls are three times as likely to report depression. This argument is flawed in a sense, that it only explore a limited sample of population, rather than all adults. Also it should compare with a separate group of married sexually active girls.

    In conclusion this article fails to show that the prohibition of adultery is a reasonable step to take, considering the availability of others, less intrusive methods of pregnancy prevention.

    • In response to Said, yes all the quantitative data is linked to and referenced correlating sex outside of marriage, unwanted pregnancies, and the various detrimental sociological results mentioned. In fact, I cite liberal sources that point to these same correlations in making a case for the importance of abortion, not realizing that the same data logically also support abstinence.

      As for the different benefits and functions of sex beyond procreation, no one denied this. But, from the perspective I’ve detailed, the harms associated with zina outweigh these benefits, even in light of contraception. You merely assert proper contraceptive methods and abortion will solve everything without evidence or argument.

      As for public programs policing criminal sexual behavior, as I explicitly caveat in the post, I am not making policy recommendations or considering all the details involved with operationalizing Islamic sexual ethics. Rather, my concern is purely with the moral question: is premarital sex immoral and can this be argued from a liberal secular perspective? That being said, you simply assert, again, without evidence that government intervention would cause more harm than all the social harms I have listed: drug use, crime, lack of education, etc.

      About the depression rate in girls, on what basis are you disputing the scientific research cited? Are there other peer reviewed papers calling into question these results? Or just more of your opinion?

      • Said says:

        I agree that it is immoral to deliver a child to the world without the ability to provide it a proper care and education. However, I believe it does not matter if the partners are in wedlock or not. I know several unmarried partners, who are better parents than other married couples. Just the fact of registering your marriage does not assure the quality of relationship and ability to rise the children.

        The second point is that the sexual relationship does not necessarily lead to a children. With a proper use of contraceptive method this rate is rather small (some birth control methods fail only in as little as 0.05% cases per year https://en.wikipedia.org/wiki/Comparison_of_birth_control_methods ). Also, the partners do not have to engage in full fledged sexual intercourse but might instead practice oral sex or petting to orgasm, where the chance of pregnancy is eliminated, thus there is no potential harm for the society.

        Considering those facts, I argue, that the proportion of the children born in extramarital sex and adultery is only very small comparing to the absolute occurrence of extramarital sex in the population. Even in those cases, the fact of getting a children is only wrong, if it is not cared after, which is only part of the cases.

        So my point is that the extramarital sex is not immoral per se, although it might be more likely that the children born from those conditions have higher probability to grow without proper involvement of the parents.

        Condemning all zina without further consideration is analogous to condemning the whole population of a city X, based on higher crime rates than population of the city Y. Would it be immortal to live in the city X? I don’t think so, unless you engage in crime. But wouldn’t it be immoral to punish people based on their residency in the city X?

        About the depression rate in girls — I don’t dispute the scientific research you cited, I rather object that it fail to fully support your argument.

        The conclusion of this research is that sexually active teenage girls are more likely to suffer from depression than sexually abstinent teenage girls. The main limitation of this research is that it only explore what happens with teenage girls and does not consider older women. So, we can’t go much further than discourage teenage girls from sexual relations (I believe that if they want to engage in consensual sexual intercourse despite that information, they should be free to do that). Based on this particular research, we can’t draw any conclusions for older unmarried or married woman.

        I don’t know if there are other peer reviewed papers, which support your argument better than the one you cited. If you indeed find one please, let me know, as I might reconsider my conclusions.

        Also, if you would like to find more resources to study, I would recommend you the book from Igor Primoratz entitled Ethics and Sex (1999).

        You can download your copy from:

        http://libgen.in/book/index.php?md5=9504D320137339F642C31AD3DF763918

  6. Sharif says:

    Assalamu ‘alaikum Said,

    I’m not sure what you mean when you say, at the end of a chain of arguments, something like “extramarital sex is not immoral per se” or when you take exception to “condemning all zina without further consideration,” as if some zina could be A-okay just as long as we can satisfy ourselves that it doesn’t seem to have any negative consequences as far as we can tell.

    I think it’s really crucial to understand that what Daniel is doing here essentially is offering a list of the “wisdoms” (hikma) on account of which Allah may have decided to categorically prohibit zina for His believing servants. These wisdoms are not WHAT MAKE zina haram, nor are they the means by which we come to know that zina is haram. What makes zina haram for us is the fact that Allah has prohibited it, and we come to know this through textual evidence of the Qur’an and sunna (i.e., we come to know, through these sources, that the prohibition of zina (a) exists, and (b) is categorical, i.e., not subject to all these qualifications you seem to be putting on it).

    Even if we could not determine, or even speculate upon, ANY of the wisdoms behind the prohibition, the prohibition itself would still stand. As it turns out, one of Allah’s attributes is wisdom, and we believe all of His actions, prescriptions, proscriptions, etc. manifest His divine wisdom (in addition to His mercy, compassion, and other attributes). Since He has created us as intelligent and rational beings, it follows that we are very often able, upon reflection, to ascertain and appreciate the wisdom of Allah’s command. Nevertheless, it is not our ascertaining or appreciating of this wisdom that gives the command its force.

    In arguing that we can list these various wisdoms of the prohibition of zina, Daniel is simply pointing to the fact that (a) Allah’s commands are wise, (b) we can often see in what way they are wise, and (c) in the case of zina, here are a bunch of considerations we might want to explore in order to put our finger on this wisdom. Such an exercise essentially amounts to a “rationalization” of the command, but only in the sense that you are showing how it can be appreciated by rational individuals (Muslims and non-Muslims). Daniel’s article shouldn’t be read as an attempt to ESTABLISH THE RULING, but merely an attempt to articulate the ruling’s rationale.

    In secular ethics, one depends on such a rationale to ESTABLISH a given principle (or “ruling,” to put it in Islamic terms), since that’s all you have to go by, i.e., there is nothing beyond collective human reason and deliberation when deciding upon moral and ethical norms in a secular framework. The equation is rather different, obviously, when you add Divine revelation to the mix.

    • Said says:

      Assalamu ‘alaikum Sharif,

      what I mean by saying “extramarital sex is not immoral per se” , is that sexual intercourse does not necessarily lead a harm to anyone (although it might be so in many cases). The harm could happen only if an unwanted child, which is lately not properly cared after, is born; some of the partners is mistreated or misled or does not give full consent to the sexual intercourse. But you can also see, that a sex in wedlock is equally wrong in any of those harms apply. Therefore, I’m not convinced that zina is wrong based on the reasons cited.

      Your argument based on the Allah’s command does not follow the line with the argumentation in the article, which aims to explain how zina is wrong from “liberal secular perspective”.

      If someone wants to avoid zina it is rather his/her prudential choice. If not, we have no right to punish them, unless they do any secondary harm, because otherwise we would punish innocent.

      • Said,

        No where is it claimed that engaging in premarital sex *necessarily* leads to unwanted children. Rather, when we look at the relevant statistics, there is a high correlation between this behavior and different societal ills. You don’t seem to want to acknowledge the data behind this, so there’s no point in pointing it out to you yet again. And as Sharif points out, you don’t seem to understand the point of the exercise itself.

        Driving drunk, for example, does not necessarily lead to an accident. And even if it did, it does not always lead to bodily harm or death. That doesn’t mean that a drunk driver has not acted immorally — by secular standards — when he sits behind the wheel intoxicated. And it doesn’t mean that Muslims, who hold the consumption of intoxicants to be impermissible according to Divine guidance, can’t recognize the wisdom behind this prohibition when they see all the carnage and loss of life caused by drinking. Every year, thousands of innocent people are killed in alcohol-related traffic incidents, despite the illegality of drinking and driving as well as the millions of dollars in public funds spent on police enforcement, etc. Why can’t Muslims point to statistics like this and say, “This is one of the benefits of abstaining from intoxicants. This is one of the reasons intoxication, in general, should be seen with disgust. And look at the hypocrisy and unprincipled nature of the moral philosophy that allows this without caveat all in the name of ‘autonomy’ and ‘personal choice’.” This is the kind of argument I believe Muslims can and should make.

      • Zeena says:

        Said,

        There are definitely more harms that can occur through zina than the ones you have mentioned. To give a personal anecdote, I have many non-Muslim female friends who engage in “casual” sex. All of them individually have revealed to me that they felt “dirty” afterwards though society has taught them that premarital intercourse is “empowering” and a sexual right. Where does this feeling come from? If society, their family, friends, and the media all valorize premarital sex, then why do they feel impure and used after engaging in it? Why do they suffer emotional and psychological stress and even trauma? Women are not designed to give up their bodies outside of legal bounds. Law and morality in Islam are intertwined; they cannot be separated. So yes zina is utterly immoral.

  7. Ahmad says:

    Children as a result of Zina are not in an far better place than many of the children who are abandoned by their married parents, borne in islamic wedlock. The abandoning parent is usually the father. If the family is broken up due to divorce, the father tries to penalize the mother by not supporting the kids. Even though divorce is permissible in Islam and child support is obligatory upon the father.
    Please write about these issues too.

  8. Jess says:

    For me this article was a little disturbing, as it starts off with sentiments that echo eugenics.
    To quote:
    “…one has to wonder how any civilized society could allow its people to have children without having some kind of regulation to ensure that all children are born to competent parents, parents invested in their children’s well being and future. Isn’t it a child’s right to have a stable household and parents capable of properly raising him? Isn’t it our right as members of society to make sure incompetent, irresponsible people in our midst are not having children that they will neglect, children who will be more likely to become burdens on society and, hence, each and every one of us?

    I think this whole paragraph is incredibly vague and open to dangerous interpretation…Which parents will be considered competent and which parents will be considered incompetent? In the past, this kind of discourse was used to take kids away from single mothers, to sterilize poor women, to sterilize women of color and sterilize women who were disabled. So depending on who would be in power, implementing these laws, the notion of incompetent versus competent parents would be very subjective. Once again, what qualities are we talking about here that make a parent capable of ‘properly’ raising their child? Are we implicating economic status here, or simply qualities like unconditional love and care? And furthermore, WHO are the burden’s on our societies? Are we talking about people in prisons? Are we talking about poor people? Are we talking about disabled peoples? Cause if so, this article is unjust, unIslamic and narrow-minded. Or are we talking about the CEO’s of corporations and leaders of imperialist governments? Would parents of the upper and elite classes of North America be subject to this kind of sexual policing? Doubt it. I’m sure that many of the worlds most destructive leaders were born from sex that occurred within the bounds of marriage… I think the link from premarital/extramarital sex to crime rates is a bit of a jump and has more to do with class, access to healthcare and contraception and other basic necessities…

  9. […] then why shouldn't that private behavior be the business of a higher authority? As I argue elsewhere, this is one possible argument justifying Islam's prohibition of premarital/extramarital sex. But, […]

  10. […] then why shouldn’t that private behavior be the business of a higher authority? As I argueelsewhere, this is one possible argument justifying Islam’s prohibition of premarital/extramarital sex. […]

  11. […] then why shouldn’t that private behavior be the business of a higher authority? As I argueelsewhere, this is one possible argument justifying Islam’s prohibition of premarital/extramarital sex. […]

  12. […] then why shouldn’t that private behavior be the business of a higher authority? As I argueelsewhere, this is one possible argument justifying Islam’s prohibition of premarital/extramarital sex. […]

  13. Mo says:

    Hi. I have been reading these articles but they haven’t really answered my questions, so I was wondering can someone please help me out?. I have been hearing some things about sex in Islam. To be honest, it is a really taboo topic so I really cant go and talk to my imam about it. But I have been told from some friends that there are things you can and cannot do. For example, I have been told you cannot kiss your wife below the neck (apparently it is haram). Also when it comes to the actual act, you are not allowed to see your wife naked (again it is apparently haram). There has to be a cloth between husband and wife (in other words a white cloth on top of her, which has a hole in it). I am sure you can figure out the rest. I have been told by friends this is the Sunnah way to be intimate with your wife. This sounds really whack and I’m wondering is this true or is it a joke that people play on friends?. Also, what does Islam say about oral sex?. Is that allowed or would a hijabi or niqabi wife forbid this?. Advice please!. I would really appreciate it. Thanks!.

  14. […] for “what is or is not deemed harmful is ineluctably normative and far from objective.” Yet in this essay he confidently states that extramarital relations are an “objective evil”. In Q8 he dabbles in […]

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