2.1 Sexual Agency in Foundational Discourses
2.1.3 Fiqh
Notwithstanding contemporary reformist responses, foundational texts are also consistently employed in jurisprudential (fiqh) works to create a normative perspective of male sexual dominance. Ali (2010) locates hierarchical discourses on consent and sexual availability in the classical legal framework of marriage, which is characterized by an exchange of dower for sexual access and continued sexual availability for financial support. She argues this system of marriage was developed in a socio-historical context predicated on an analogy to slavery and other normative forms of ownership. Modern Muslim notions of marriage still uphold the spousal rights and privileges of the classical legal model but provide new rationales, which obscure the linkages to ownership and slavery in order to tie in better with contemporary social norms of partnership reciprocity in marriage. Essentially, Ali argues that the classical framework continues to undergird Muslim discourses on sex and marriage today, and mitigate against the attainment of mutuality in marital sexual interactions (Ali 2003; Ali 2006: 13).
36 Kodir (2007: 211) defines tawhid as the “belief in or affirmation of the oneness of God”.
37 For a reference to this hadith see Kodir (2007: 182).
Leila Ahmed in her formative book Women and Gender in Islam suggests
…two distinct voices within Islam, and two competing understandings of gender, one expressed in the pragmatic regulations for society… the other in the articulation of an ethical vision (Ahmed 1992: 65-66).
Ahmed theorises that Muslim women have internalized these two Islamic voices; the pragmatic legal voice, in which marriage is deemed an institution of sexual hierarchy and the ethical voice, “virtually unheard by rulers and lawmakers” and which
“stressed the importance of the spiritual and ethical dimensions of being and the equality of all individuals” (1992:66).
Building on Ahmed’s theories, other scholars have offered a complete overhaul of the legal tradition of Muslim marriage away from dominion and towards mutuality and reciprocity as a possible remediatory measure. Contemporary legal theoretical reform efforts are propelled by the idea that Islamic legal theory is pliable, and reactive to social, political and ideological forces (Ali 2006; El Fadl 2001; Mir-Hosseini 2009).
For example, Ziba Mir-Hosseini (2009: 1-3) points out distinctions in Islamic legal categories. The first is between fiqh and sharī‘a. Fiqh is regarded as “human, mundane, temporal”, open to juristic reasoning, speculation and extrapolation and is therefore “malleable to changing socio political and historical contexts”, while
“sharī‘a is divine, sacred and universal and cannot be changed”. The second distinction is between muāmalah, which, regulates relations between humans and is open to “rationalizations” and “social forces”, and ibādah, which regulates God- believer relations and is limited in scope for rationalization and change. Gender relations, like those in marriage, belong mainly to the legal category of muāmalah.
Like Ali, Mir-Hosseini is of the opinion that there is a dissonance between the legal framework of marriage, which she describes in terms of an exchange of tamkīn (wifely obedience and sexual availability) for nafaqa (maintenance), and the ethical ethos framework of marriage based on the ontological equality and mutuality of men and women. The latter is articulated in modern experiences and understandings of mutuality and reciprocity in marriage. The dissonance can be alleviated by moulding a new fiqh, based on the idea that “when social reality changes, then social practice
will effect a change in the law” (2009: 3). This change is more easily achievable in the realm of human relations, muāmalah.
Arguably, when gender relations veer from the category of muāmalah to ibādah as will be noted later in this chapter, and where dominant perspectives of primary texts deem women’s sexual availability under the ambit of divine concern and approval by enmeshing gender relations with the sacrality of God believer relationships, then reform efforts may prove more difficult.38 Added to Ali’s compelling claim that contemporary Muslim marriage is still based on a classical framework of sexual availability in exchange for support, the enactment of marriage reforms within the existing framework appears unfeasible. Modern piecemeal modification of the existing marriage framework in order to render analogous rights based on mutuality and reciprocity will not succeed. Instead, what is required is a divergence from “the overall framework of gender differentiated rights and duties set forth by classical jurists” (Ali 2006: 13).39
We indicated above that foundational Islamic texts simultaneously promote male dominance and control of sexual relations and protect women by dictating male restraint during sex, promoting a wife’s sexual satisfaction and encouraging a husband’s obligation to satisfy her (Ali 2006: 9-13, Kodir 2007). This last notion of Islam as a sex positive tradition has also co-existed with two conflicting views.
Firstly, female sexuality is considered a potential source of corruption (fitna) and potentially dangerous for society. Paradoxically, the second view is divine concern and approval of male sexuality, which is more potent than female sexuality and must be “satisfied through a wife’s constant sexual availability” (Ali 2003: 12).
Fatna Sabbah (1984: 116) describes this construct of a dangerously potent female sexuality as the “omnisexual woman”,40 further suggesting that women are impacted
38 This is illustrated by Hoel and Shaikh in “Sex as Ibadah: Religion, Gender, and Subjectivity among South African Muslim Women” (Hoel and Shaikh 2013: 1; 79-81).
39 Ali states: “For as long as the legal tradition views marriage as a an exchange of lawful sexual access for dower, and continued sexual availability for support…to the extent that these doctrines still inform Muslim discourse, mutuality in sexual rights cannot be a requirement, merely an ideal” (Ali 2006: 13).
40 Fatna Sabbah (1986: 34-43) traces the interplay between erotic and orthodox discourses in the creation of the construct, which she describes as the “omnisexual woman”. The negative and dangerous female sexual potency of the omnisexual woman is a threat and danger to society.
negatively by it, because it justifies onerous societal controls and restrictions on them, while male potency justifies societal sanction of polygyny and unilateral repudiation of wives. In addition, these notions also favour a “sexual politics of domination” as suggested by Wadud in chapter one, which severely inhibit women’s sexual choices and their ability to decide the terms of sexual engagement (2006: 236).
Having provided an overview of varying, contradictory and competing interpretations of women’s sexual agency in foundational texts, from normative androcentric notions to reformist ones, and the link between the textual, ethical and legal aspects of the Islamic tradition, in the next section I survey contemporary social and political controls of women’s sexual agency. I note the extent to which these interpretations are relied on, and their impact on sexual reproductive health rights in modern Muslim contexts both internationally and locally. I explore tensions between these controls and Muslim experiences of changing social realities in the context of sexual reproductive health rights, with a particular focus on South Africa.