“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.

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 and his Companions. The historical record is clear that the Prophet 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 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.