Post-Millennials and Maulanas- navigating sexual consent

By Farhana Ismail

A recent tour of South Africa by controversial preacher-scholar Bilal Abu Ameenah Philips has exposed the vast gap experienced by South African Muslims, between social reality and religious legal doctrine- a gap that is not unique to Islam. And it has depicted what Pumla Gqola calls, “the patterns of complicity that prop up gender violence”.

After Philips’ talk at the University of the Witwatersrand, the Muslim Student Association (MSA) cancelled another speaking arrangement which was scheduled for the day after. In a statement shared on social media, chairperson Asif Bulbulia stated that Philips views particularly on marital rape,“…are not compatible with the values of the MSA”.

On the outside and in drawing from some of what he says, Philips (he has an MA from King Saud University in Riyadh and a PhD in Exorcism in Islam from the University of Wales),is highly respected and has the impeccable credentials of a clear-minded, spiritual scholar. But he is problematic both in his literalist interpretation of legal religious doctrine on issues such as marital rape, and in his personal and deeply misogynistic views on female bodies, desire, sexuality, and notions of consent.

In his “Contemporary Issues” accessible on his Islamic online university platform, and under the heading “marital rape”, Philips states:
“Women and men have different capacities for sexual relations. A woman may have sexual relations without having any desire at all. For example, prostitutes may have sex with a large number of men, one immediately after the other, for money….In Islam a woman is obliged to give herself to her husband and he may not be charged with rape. Of course if a woman is physically ill or exhausted, her husband should take her condition into consideration and not force himself upon her.”

But not everyone has had an averse reaction to Philips. He has been hosted on a range of community speaking platforms and in February, the Muslim Judicial Council (MJC), welcomed him at their offices for a “meet and greet”. Sheikh Igsaak Taliep explained that many members of the MJC had studied with Philips in Saudi and had used the opportunity to “catch up on old times”. He stressed that while the MJC was not responsible for organising his visit to, or his itinerary in South Africa, they treated Philips with the same deference awarded to other international Islamic scholars.

A recent UCT study on Muslim women’s sexual health by Nina Hoel, Sa’diyya Shaikh, and Ashraff Kagee, reveals that due to the privilege of religious knowledge and the power of authority held by religious scholars, Muslims tend to respect and internalise their religious opinions, often exhibiting a pietistic loyalty to these. This can ultimately influence health decisions and choices. The research also revealed that rape, abuse and Muslim women’s vulnerability to HIV can be linked back to these kinds of literalist religious understandings of women’s bodies and sexuality.

In addition, the high levels of gender based violence in South Africa, and continued state non-regulation of Muslim marriage, renders religious legal opinions like Philips’ which are easily mediated into society through social media, as damaging to community.

Central to this discussion and probably most insidious is that Philips is not just any religious scholar with a following. He is the founder of an easily accessed and popular Islamic online university, affording him a far-reaching privilege as a religious scholar and authority figure in the online transnational space. According to Taliep, Philips has a sizeable student base in South Africa and is here to meet with different learning institutions like The Islamic Peace Council of South Africa (IPSA) to explore further options for collaboration.

The question would then be why would respectable theologians like those in the MJC, (many of whom earlier this year marched against gender-based violence), embrace and accept as one of their own, a person who has a dogmatic approach to faith, and exhibits an obvious misogyny? In South Africa, this question is especially pertinent because of the role played by the MJC in the vexed Muslim Personal Law process. The ulama, including the MJC had suggested that government appoint from amongst the religious scholars, MPL assessors as advisors in South African courts, for the proper implementation of Muslim family law. In addition, some members currently act as officials of the state in their capacity of Muslim marriage officers.

Taliep admits that a “robust” discussion via whatsapp, amongst members of the MJC had transpired prior to the MJC’s meeting with Philips, and that it was brought on by their knowledge of the controversial aspects of the preacher’s ideology- including his stance on marital rape. He explained that there wasn’t sufficient time at their meeting to engage Philips on his opinions, but that due to their South African context “many of us at the MJC disagree with the view because we have been conscientised, but the view he (Philips) espouses is not found in nothingness. It is contained within the fiqh lineage”.

In this, Taliep has a point. Notwithstanding Philips’ personal misogynistic views on sex workers and women’s bodies and desire, a cursory forage through the South African based online fatwa platform askimam.org reveals that his notion of marital rape is a normative traditional legal position in Muslim marriage. In concepts like sexual consent, sexual agency and sexual availability of Muslim wives, the gap between social reality rooted in contemporary ideas and lived experiences of morality and ethics, and religious legal doctrine enacted in a classical context is starkly exposed. This gap is played out in the MSA post- millennials rejection of Philips rhetoric and the MJC’s learned and distinguished scholars tolerance and perhaps even complicit acceptance of it.

Kecia Ali in her book Sexual Ethics and Islam demonstrates through an analysis of classical legal Islamic texts on marriage and divorce law, that many jurisprudential doctrines surrounding lawful sexuality prevalent today were enacted by classical jurists for audiences in vastly different historical socio-cultural contexts to those today. She argues that there is a “real dissonance between the cultural assumptions under girding the classical edifices of jurisprudence and exegesis, and modern notions…”A historicizing of the rules around marriage is relevant to contemporary discussions on Muslim marriage and divorce law.

The textual jurisprudential tradition is also not inflexible and draconian. Studies on historical court records and fatwas reveal varying social practices and patterns which resulted in fluid and flexible systems of Islamic law and practice. In the case of marital rape for example, Ali presents the opinions of Hanafi jurists that while it may be legal, it was nonetheless regarded as unethical.

In my own research on wives sexual agency in the online fatwas of askimam.org, I show that some Mufti’s today can and do, remain cognisant of the social realities of their minority contexts and do sometimes choose to answer questions on Muslim wives sexual choices and their right to refuse sexual intimacy by answering outside of the legal logic, and within an ethical space of marriage .

In my work on pre-marital counselling and assisting Muslim couples to draw up marriage contracts, couples clearly experience this dissonance between two voices as theorised by Leila Ahmed in Women and Gender in Islam: the pragmatic legal voice in which marriage is deemed an institution of sexual hierarchy and the ethical voice of nikah as outlined in the Quran through notions of love, harmony, mutuality and consultation. To illustrate, young wives today are equal financial contributors in their families, sharing flexible roles with their spouses, but they are still required to be accepting of polygyny, the unilateral talaq and continued obedience to their husbands, as integral to the legal framework of nikah. Attempts to mitigate this dissonance occur through a negotiated Islamic marriage contract. But this may not be ideal.

Ali suggests that because contemporary Muslim marriage is still based on a classical framework, modern piecemeal modification will not succeed. The dissonance between the legal framework of marriage, and the ethical ethos can be alleviated though, by moulding a new fiqh, based on the idea that “when social reality changes, then social practice will effect a change in the law”.

With this in mind many scholars offer a complete overhaul of the legal tradition through theoretical reform efforts, propelled by the idea that Islamic legal theory is pliable, and reactive to social, political and ideological forces. One such scholar, Ziba Mir-Hosseini points out distinctions in Islamic legal categories like fiqh and sharī‘aas well as ibadah and muāmalah, providing options within legal theory for when and how change can occur through rationalisations and extrapolations. In other efforts, and informed by the changing lived realities of Muslim women today in varying contexts, ‘Men in Charge? Rethinking Authority in Muslim legal tradition” is a knowledge-building project initiated by Musawah a Malaysian-based women’s rights group. The contributors undertook a scholarly collaborative initiative to re think and reconfigure the legal concepts of qiwamah and wilayah, which have traditionally been used to prescribe men’s authority over women.

The question remains whether the learned men of religion like those in the MJC, and others in the Islamic learning institutions of South Africa, are similarly prepared to engage in the robust discussions and technical rethinking of the fiqh of marriage and divorce to meet social realities as espoused by the post-millenials of the Wits MSA. The manner in which Philips has been received does not bode well for such a task. If an ethical, and political will to first undertake the undoing misogynistic and violent attitudes towards female sexuality and women’s bodies were present, then in addition to just marching against gender-based violence, an immediate interrogation and constraint of the dangerous ideologies of foreign scholars like Philips, would have been foremost on the agendas of our theological authorities, instead of what has transpired- friendly discussions on collaborative efforts and the pleasantries of ‘respectability politics’.

Farhana Ismail is a community activist, academic and pre-marital counsellor with a focus on gender justice and youth development.

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