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Sex in Islam

Should Prostitution be Decriminalized?

By: Dr. Shaykh Syed Mutawalli Ad-Darsh

Basic Principles:

1. Criminalising (making something illegal) or decriminalising (making it legal, or at least tolerated) is the prerogative of Allah;

2. When the text of the Qur'an or the Sunnah are authentic in their authority and clear in their meaning then no one has the authority to rule over them;

3. The legality or illegality of a practice should follow the Qur'anic maxim: "To make lawful to them what is good and forbid them whet is evil" (7:157).

4. The honour, integrity and chastity of the male and the female is one of the five universal principles protected by all revealed religions.

The moral atmosphere in many societies which are increasingly secular in outlook, and where legislation reflects the norms and customs of the culture and practice, has become 'liberal' and individuals have the 'freedom' to indulge in acts which give them personal satisfaction, as long as they do not infringe upon the rights of others. Such a moral atmosphere may justify the decriminalisation of prostitution. Prostitution, it is argued, is not worse than homosexual practices which are accepted, legalised and tolerated in societies nowadays. For a man or a woman prostitute, the difference between their action and that of lesbians and homosexuals is the degradation of the human body by charging a price for hiring it. Those who argue in favour of decriminalisation say that this is an activity deemed to entertain the paying partner, as a dancer or an actor entertains those who watch them act. After all, legislation nowadays is responding to the notion of personal freedom and the absence of coercion in the profession of prostitutes. This type of argument is gaining ground in modem 'tolerant' society. The Synod Committee on social matters showed in a recent report that it was in favour of considering sexual relations outside marriage as no longer sinful, and this goes a long way towards helping the second act, prostitution, win its argument for decriminalisation.

For Muslims the question of legality is entirely outside the scope of human power. It is purely the prerogative of Allah, our Creator. To assign this area to a human being is to give that person, institution or organisation the right to be worshipped. When the Qur'anic verse, "They have made their rabbis and their monks, and the Messiah, the son of Mary, as lords besides Allah", ( 9:31) was recited in the presence of Adiyy b. Hatim, a convert from Christianity, he said: "O Messenger of Allah, they did not worship them". The Messenger said to him: "Did they not prohibit for them what was legal? Did they not allow them what was prohibited?" To this Adiyy said: "Yes". The Prophet then said: "This amounted to worshipping them". The Qur'an has made clear it that no-one has an authority except Allah. In the Qur'an Allah says:

"Do not (falsely) declare: "That is lawful and that is forbidden, in order to invent falsehood about Allah. These who invent falsehoods about Allah shall never prosper" (16:116).

Turning to the Qur'anic attitude towards prostitution we find that, as with many social practices that it aimed at reforming, it moved in a gradual way. Prostitution was widely practised in a number of forms and it was tolerated and accepted as one of the social practices. It was condemned in a number of early Makkah Qur'anic verses as an immoral practice which was prohibited by Allah, but there was no specific punishment for it.

In the Qur'an we read: "And these who do not invoke another god, and do not slay the living soul, which Allah has forbidden, except by right, nor commit adultery - and any that does this (not only) meets punishment (but) the Penalty on the Day of Judgement will be doubled to him, and he will dwell there in ignominy..." (25: 68). On this occasion the Qur'an was portraying a decent picture of the morality of the servants of the Compassionate and giving the severest warning to those who behave otherwise, but the punishment mentioned was in the Afterlife.

The same attitude is seen again in "Do not approach adultery for it is an indecent thing and an evil way" (17:32). It can be noticed here that the command to keep away from coming near to adultery is explained rationally - that it is an act of degradation, lewdness and a dangerous trend in human society. But even with this rationalisation of the prohibition there was still no punishment.

But once the Muslim community was established and the authority of the Messenger of Allah was confirmed and was free from subjugation to any other social order, the rules and regulations dealing with this deviation in human behaviour were revealed to the Prophet to put into practice. An early sign of these new regulations came in Ch 4, verses 15-16 where it was prescribed that women who commit adultery were to be imprisoned indefinitely until their death or until a new regulation came. Verses 16 prescribed some sort of punishment for men who were guilty of homosexual acts until they were deterred from this heinous crime. Soon afterwards the final regulatory and prescribed punishments were revealed in Chapter 24, The Light. The first verses of this chapter set out the regulations specifying the punishment, the establishment of the crime, the different categories of those who commit it (virgin or married), the prohibition of marrying those who are known to indulge in this act, and finally the prohibition and punishment of those who falsely accuse someone of committing this crime. The statements of the Prophet came to expand and detail all the rules and regulations on this matter. As a result, any physical relationship outside marriage was criminalised and punishable. A whole core of legal regulatory ordinances became part of the penal Islamic legal system. It is now firmly established that this act is permanently penalised, criminalised and punishable physically as well as socially, and no-one except a non-believer, would argue about its nature.

There are many safeguards and mitigating circumstances to protect the innocent and to stop speculative talk about the integrity and good nature of those who may be involved. But these are legal protective and preventative measures for cases where the crime was not established, and do not in any way infringe upon the validity or the applicability of the rules, and definitely not their stoppage or abrogation.

The Nature Of Regulations

The Islamic rules and regulations are not arbitrarily imposed upon human society, They follow a rationale given in the Qur'an itself and reflects the spirit of care, compassion and reasoning. This is clearly stated in the Qur'an, giving the general framework of the Islamic legal system. In Ch.7, verse 157, Allah Most High defined the mission of the Prophet in terms of these moral and rational concepts "….he enjoins on them what is good and forbids them what is evil, and he makes the pure things lawful for them and forbids them from the impure, he relieves them from their burdens and frees them from the fetters which were upon them. So those who believe in him and support him and help him (in his task), and follow the Light which has been revealed to him, those surely attain success. " So Muslims believe that this is the aim of the Islamic way of life in general and of the rules and regulations in particular. Any particular legal issue has to be judged in the light of this general moral framework.

The Aim Of This Particular Piece Of Legislation

Beside the general moral framework of the Islamic legislation, in every particular issue there are certain objectives to be attained. The family in Islam is the bedrock of the social order. It has to be built on a solid foundation which would allow it to survive the challenges, the tensions and the strains of a life-long relationship.

It has, at the same time, to cater for and protect those who are involved in it - wife, husband, children and all those who have a stake in its stability and continuity. There are basic legal obligations between all these members, those who are covered by the term 'extended family'. The honour of those who are involved is a very important concept as far as the good name of relations is concerned, as far as the responsibility, both morally and financially, for the upbringing of the children is concerned and as far as those who are entitled to carry the name of the family and inherit its fortune are concerned. All these rights stem from a clearly established relationship. The safety and tranquillity of those who live in the same area, and the eradication of the sources of tension and conflict are also important. All these are legitimate objectives which have to protected and realised.

The Question, Finally, Is Whether There Is Any Need, Within The Islamic Social Regulation, For Prostitution?

The answer to this question is to be sought in the regulations dealing with the sexual relationship. In Islam, sex is considered to be one of the most enjoyable aspects of life. In the words of this life, "Life is sheer enjoyment. The best of its enjoyment is a decent good wife." In a Hadith the Prophet (s.A.w.) said: "The faithful has not acquired a greater thing in this life after his faith in God, than a decent, good wife. If he looks at her he will be pleased, if he asks of her something she will oblige and if he is away she will keep chaste and look after his wealth."

He advised young people who were physically and financially able to marry to get married, for this is the best way to preserve young people's chastity and integrity. Allah Most High commanded the guardians of those who are in need of marriage to help them to accomplish it.

The Qur'an went on to give that good promise: "And marry those among you who are single and the virtuous ones among your servants, male or female, and if they are poor, God will provide for them out of his bounty," (24: 32.)

Al-Islam did not put a strain nor impose restrictions on those who wish to get married, male or female. Once married, the financial responsibilities fall upon the shoulders of the man. Both are to live within their own means. If their earnings are not enough the state should take care of them. If there is no such social system, local communities should share among themselves the means to enable families to survive in an honourable, but humble way.

There is no reason for men or women to claim that they have to resort to this illegal immoral practice out of financial or physical need. Marriage is an easy, simple, natural way of satisfying the basic human need. Only when people become greedy, materialistic and unprincipled do they resort to this heinous practice, which spreads diseases and illegitimacy and brings into this world children who suffer the consequences of the mistakes of others.

Allah Most High says in the Qur'an: "Indeed those who love that obscenity should be spread among the believers, shall have a painful chastisement in this life and in the Hereafter, and Allah knows but you do not know," (24:19).

And Allah says the Truth and guides to the right way.

Shaykh Syed Mutawalli Ad-Darsh. 9 August 1996.

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