The Historical Context: Why Zina Laws and Why Now?
Current zina laws reflect centuries-old, human-made fiqh interpretations
Current zina laws reflect centuries-old, human-made fiqh interpretations, which can be criticized from within the framework of Islamic principles, in accordance with the changing realities of time and place and contemporary notions of justice.
The revival of zina laws
The revival of zina laws, and the emergence of a global campaign against them, must be understood in the context of the recent conflict between two systems of values, the one rooted in pre-modern cultural and religious practices that often sanction discrimination among individuals on the basis of faith, status and gender, and the other shaped by contemporary ideals of human rights, equality and personal freedom.
This conflict of values is not confined to Muslim contexts.
Rather it is ubiquitous, and shades into the animated and ongoing debate between universalism and cultural relativism. It acquired a sharper political edge in the Muslim world in the second half of the twentieth century with the emergence of the question of Palestine, and the rise of Islamist movements, which sought a merging of religion and politics.13 In the aftermath of the 11 September 2001 attacks, the politics of the so-called war on terror and the invasions of Afghanistan and Iraq –both partially justified as promoting democracy and women’s rights –added a new layer of complexity to the situation.
Rightly or wrongly, many Muslims perceived the war to be directed against them. This has not only increased their sense of insecurity and the appeal of traditional values, it has also, in their eyes, eroded the moral high ground of human rights law and delegitimized the voices of dissent and reform from within. In many ways, 1979 proved to be a turning point in the politics of religion, culture and gender, both globally and locally.
It was the year when the United Nations General Assembly adopted the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), which gave gender equality a clear international legal mandate.
But it was also the year when political Islam had its biggest triumph in the popular revolution that brought clerics into power in Iran, and when the ambit of fiqh was extended in Pakistan to criminal law, with the introduction of the hudud Ordinances. The decades that followed saw the concomitant expansion, globally and locally, of two equally powerful but opposed frames of reference.
On the one hand, the human rights framework and instruments such as CEDAW gave women’s rights activists what they needed most: a point of reference, a language and the tools to resist and challenge patriarchy. The 1980s saw the expansion of the international women’s movement and of women’s NGOs all over the world. By the early 1990s, a transnational movement further coalesced around the idea that violence against women was a violation of their human rights, and succeeded in inserting it in the agenda of the international human rights community.
In their campaigns, they made visible various forms of gender based discrimination and violation rooted in cultural traditions and religious practices, and protection from violence became a core demand of women’s human rights activists. In 1994, the UN Commission on Human Rights condemned gender-based violence and appointed a Special Rapporteur on violence against women, its causes and consequences, as requested in the Vienna Declaration at the 1993 UN Conference on Human Rights.14 In Muslim contexts, on the other hand, Islamist forces –whether in power or in opposition –started to invoke Islam and Shari’a as a legitimizing device.
They presented the ‘Islamisation’ of law and society as the first step to bring about their vision of a moral and just society, as a remedy for the problems of rising criminality, corruption and ‘immorality’ that they understood be the consequence of the mixing of sexes.
This spoke to the masses, and played on the popular belief among Muslims that Islam is the essence of justice, thus no law that is ‘Islamic’ could be unjust.
Tapping into popular demands for social justice, the Islamist rallying cry of ‘return to Shari’a’ led to regressive gender policies, with devastating consequences for women: compulsory dress codes, gender segregation, and the revival of outdated patriarchal and tribal models of social relations.
The ‘Islamisation’ of law and society centred on the criminal justice system, an area of public law that had lost ground to codified law, influenced by European models, both under colonial rule and with the modernization of legal systems.15 At the same time, the Islamists criminalised –and thus politicised –areas of sexual and moral behaviour that previously had not been the concern of the state, and thus facilitated the enforcement of their authoritarian and patriarchal interpretations of the law.
Fiqh-based penal laws had already been revived in codified form Libya in 1972.16 After 1979, the same happened in Pakistan (Enforcement of hudud Ordinances, 1979), Iran (1979), Sudan (Penal Code, 1983, and Criminal Act, 1991), and Yemen (Penal Code, 1994).
The same has occurred at a provincial level in Kalantan state in Malaysia (Syariah Criminal Code Act, 1993), several states in Nigeria (1999-2000), and Aceh Territory in Indonesia (2009). In other cases, such as Afghanistan under the Taliban (mid-1990s to 2001), in Algeria since the rise of the Islamic Salvation Front (FIS), and in Somalia for many years, there are reports of the arbitrary application of Islamic penal laws.17 Actual instances of stoning as a result of judicial sentences remain rare; currently, they only occur in Iran.
But wherever classical penal laws have been revived, and in whatever form, nearly all those sentenced under zina laws to lashing, imprisonment or death by stoning have been women. In many instances, women have been brought to court on the basis of false accusations by family members or neighbours, or have been punished by non-state actors and communities.
To understand why women have been the main target of the revival of zina laws,
we need to ask two prime questions: What is the place of zina, both as a concept and as a set of legal rulings, in the Islamic legal tradition? How can we argue –within that tradition –for the decriminalization of consensual sexual relations?
To explore these questions, we need to examine the links, in fiqh (Islamic jurisprudence), between three sets of rulings that regulate sexuality, i.e. those concerningzina, marriage and hijab.
And what are the juristic constructs and legal theories on which they are based.