Islamic law, or sharia, is binding in countries where Islam is the majority religion, but in South Africa, as a minority religion the law plays a different role. However, in terms of queer studies and LGBTQ+ Muslims in South Africa, the law still holds weight.
Dr. Nadeem Mahomed, a post-doctoral scholar at UCT, addresses students and faculty members about an academic paper he has been working on that looks at the legal implications of same-sex relationships in Islam. His presentation questioned the critiques around sexual diversity within the Islamic tradition, at a global scale, as well as the “representation of the law as an individualistic enterprise disconnected from past precedent”.
Joining the scholars at UCT last year as a post-doctoral student, Dr. Mahomed has been involved in research on communities in Cape Town and their dealings with difference. His research has looked at gender identities, queer identities and the LGBTQ+ community’s experience of Islam, as well as implications for the above in terms of Islamic law. Because of his focus on Islam, he has also lectured in the Religious Studies department.
His presentation on September 19th made specific reference to the different aspects of Islamic law and how it has repercussions in contemporary times for LGBTQ+ Muslims. This applies to both Muslims living in majority states, as well as South African Muslims, many of whom are challenging the Islamic law in a move towards LGBTQ+ rights. Dr. Mahomed begins by referencing Kevin Reinhart who wrote, in Islamic Law as Islamic Ethics, “the Qur’an is an unparalleled window into the moral universe. It is a source of knowledge in the way that the entire corpus of legal precedent is for the common law tradition: not so much as an index of possible rulings as a quarry in which the astute inquirer can hope to find the building blocks for a morally valid, and therefore true, system of ethics”. According to Dr. Mahomed this reference explains why Muslims place tremendous value on the Qur’anic texts: to inform them of ethics, and also of how they should direct their lives. It explains why Islamic law holds weight for practicing Muslims, as much as civil law.
As with all religions, interpretations vary in terms of law, texts and how the religion should be followed. Dr. Mahomed spoke about progressive, modernist and reformed Muslims who deconstruct the text and find different interpretations, and how they come up against traditionalists who take the text “at face value”. He continues that those who “refus[e] to deconstruct [the text] to suit current social trends are often deemed to be closer [in understanding] to its original meaning and purpose”. However, it can be argued that interpretation and understanding in a contemporary time frame does not have to be an attack on Islamic law. Rather than saying that the Islamic tradition was inherently wrong, which then negates the whole religion, it could be contended that historically Islamic law, as Dr. Mahomed concurs, “was not adept in dealing with same sex sexuality in the way that we deal with it now.”
In his explanation of sexual diversity within Islam, and specifically with reference to Islamic law, Dr. Mahomed referenced and questioned the story of Lut, the reliability of the hadith narrations and Islamic law or sharia itself.
The story of Lut in the Qur’an comments on same-sex sexual practices. It has been argued that the story deals with rape of men by other men, but Dr. Mahomed questions whether this takes into account the historical understanding of these acts. Did consent exist in the same way it exists in 2019? And with that, who exists as the primary agent of the narrative? In other words, who exists as the person who would give consent? Because it is clear that “the central agent in this narrative is Lut, who is made firm by the support of God, [it] would seem that the Quran is not bothered about consent, and neither is Lut.” Thus, the understanding of same-sex relationships and their legality here neglects human dignity and consent, and rather focuses of the genders of those involved in the acts.
In terms of the hadith narrations, Dr. Mahomed made it clear that ethos of the Qur’an in the hadiths is “strikingly heteronormative.” Where there is guidance and commentary for opposite sex relationships, it does not give any information about same-sex relationships – “all there is is silence.” This makes interpretation on the permissibility of same-sex sexuality complicated as nothing is said by the prophet on the matter.
“In Islam, God has not revealed himself and his nature, but rather his law.” This is from a Medieval text on Islamic law, interpretations of which have varied according to time and place. However, Dr. Mahomed said the sharia is understood to be a “timeless manifestation of the will of God subject neither to history nor circumstance”. This necessitates an understanding of people’s relationship to the law when considering homosexuality in contemporary times. While historically Islamic legal tradition rejected homosexuality, there was not such stringent need for Muslims to have their lives completely permissible by law. Conversely, in contemporary times there is intense effort to make sure one is in sync with the law. There is a feeling of one’s life being “either permissible or prohibited.” This has serious implications on same-sex sexual relationships and LGBTQ+ Muslims. Are they allowed to act on their sexuality? Do they have agency?
“Only through examining same-sex sexuality, can one critically understand concepts such as agency, consent and dignity.”
In this statement Dr. Mahomed explains that issues of consent, agency and dignity can be more fully discussed when discussing same-sex relationships between two free men, because there are no gender or social roles and implications that require discussion (as would be the case when discussing sex with women or with slaves).
But the law’s approach to agency and consent is questionable, as Dr. Mahomed concluded. The conversation, research and insight about sexual diversity in Islam and its link to the law is ongoing. As is research into the implications for Muslims around the world, in different political, social and cultural contexts.