Hacking Islamic Law

Rumee Ahmed is a brilliant Islamic legal expert at the University of British Columbia. He is both traditionally and academically trained. His book “Sharia Compliant: A User’s Guide to Hacking Islamic Law” was published in 2018. According to Ahmed, hacking is both relevant and ancient, as it is based on simply clarifying past commentaries and on addressing all related laws on an issue to create a consistent legal position.  A successful hack in Islamic law is therefore seamless and accepted by the Muslim community as part of normative Islamic teachings. Both him and his spouse Ayesha Chaudhry, who too is an Islamic legal expert, are significant voices in renewed Islamic discourse. I came to know of Rumee ( I hope the readers will excuse my first-name reference to my colleague from here on)  through Laury Silvers, who was then teaching at the University of Toronto. In 2016, I had finally completed the book that I co-authored with Hussein Abdullatif – “Islamic Law and Muslim Same-Sex Unions.” We were looking for someone to write a short blurb for promotion and Rumee was quite generous with his words.

Hussein and I are avid readers of Islamic scholarship even though neither of us is formally trained. He is a pediatric endocrinologist and I teach Economics. However, Hussein, who is originally a Palestinian, holds an exceptional grasp of classical Arabic and is an avid student of the works of Ibn Taymiyyah. I used to be a research assistant to Qur’anic Studies scholar Shehzad Saleem for the Renaissance Islamic magazine. In 2005, Hussein and I met each other on the online understanding-islam.com discussion forum. Both of us engaged in a strong discussion with conservative Muslims. Our persistent discussions on such Islamic forums allowed us to hone our arguments on homosexuality in Islam and over a span of ten years, we consolidated our work in our magnum opus. In essence, we believe our work furthered the discourse in Islamic law on the full acceptance of gay Muslims in Islam. This provision of an LGBTQ affirming Islamic discourse is what Rumee would call hacking Islamic law.

Our work was independently developed based on our discussions in online forums, which are places identified by Rumee as where Islamic law increasingly gets hacked in contemporary times. While we build on the previous significant work by Scott Kugle (the first to broach the subject who also wrote a foreword for our book), we take that work further to address every argument and counter-argument that has been raised in online Islamic forums. There are not many works that deal with Islamic discourse in such detail. This is because many LGBTQ activists use the medium of personal story telling to further their narrative. This does not allow for a productive dialogue with what Rumee would call “fiqh minded Muslims,” for whom Islamic law is important. For many LGBTQ Muslims, the nitty gritty of Islamic law are not important, whereas for fiqh minded Muslims, personal narratives are of no consequence before the law. As such, progress on affirming LGBTQ Muslims is stalled as LGBTQ Muslims and fiqh minded Muslims do not speak a common language.

“…progress on affirming LGBTQ Muslims is stalled as LGBTQ Muslims and fiqh minded Muslims do not speak a common language.”

LGBTQ and Fiqh Oriented Muslims are Both Minorities

I have been frustrated by this stalling of progress but have been unable to capture this phenomenon in words. Thankfully, Rumee’s book allows me to explain why a discourse based on Islamic law is of paramount importance even if many LGBTQ Muslims do not feel necessarily bound by it.

Fiqh minded LGBTQ Muslims, for whom such a discourse would be most relevant, often belong to the “straight struggle” type groups and are often the most vociferous critics of any LGBTQ Muslim affirming scholarship.  In Islam, they would be the counterpart of the ex-gay movement, although they avoid using that label. Some of them believe struggling with same-sex desires is a test, others feel guilty of having partaken in drugs, alcohol and rampant sexual liaisons and blame the “gay lifestyle” for their poor choices. This leaves a minority within a minority to lead such a discourse. Unfortunately, as Rumee would point out, such an insignificant proportion of Muslims, even if they possess a formidable hack on the issue, would not be powerful enough to have their hack accepted by the larger Muslim community.

Yet, just as LGBTQ Muslims are a minority, Rumee reminds us so too are fiqh minded Muslims, even as they present their religious viewpoints as “majoritarian” or those of “normative” Islam. Rumee reminds us that majority of Muslims do not pray five times a day. Based on logistical constraints, he indicates that only about 25 percent of U.S. Muslims attend Friday prayers and that given the population of 1.6 billion Muslims, no more than 10 percent of Muslims will go for pilgrimage to Mecca. This is because for most Muslims, being Muslim is often times an identity marker.

This observation is consistent with the claims of progressive Muslims when they push back at the self-styled conservative Muslim spokespersons, by asserting that they do not speak for the silent majority of Muslims and Islam. Rumee expressly states that fiqh minded Muslims are a minority in the Muslim community and that most of them do not attend educational institutes like Seekers Guidance (formerly Seekers Hub), AlMaghrib, Zaytuna or Bayinnah. This suggests that when fiqh minded Muslims attack progressive Muslims for not having formal training or credentials from traditional seats of Islamic learning, they fail to recognize that many of the people with conservative viewpoints that they support, also have no formal training. As Rumee points out, what matters is not formal training but rather charisma and inspiration, which can be noted by observing how Muslim celebrity preachers brand themselves and their work.

Rumee reminds us that many brilliant hackers, whose opinions contrast with those in classical legal manuals, often have no formal seminary training. The example of Javed Ahmad Ghamidi from Pakistan comes to mind. Ghamidi is one of the foremost Pakistani theologians who is noted to have provided a renewed Islamic discourse on supporting democracy and offered criticism on political Islam, as espoused by previous thinkers like Maududi. His opinions on various social issues are often at odds with that of the traditionally trained clergy. He learned from individual teachers instead of madrassas. His viewpoint on masturbation is 180 degrees apart from that of Shafi. He has been noted to state that while we should respect the opinions of the past scholars we should be confident in expressing our own opinions based on deep study and reflection with humility. The example of masturbation, which is classically deemed forbidden based on verses 23:5-7 on hifz furuj (protection of private parts), indicates how opinions on an issue can range from prohibition to undesirability to permissibility.

Romanticization of Past Scholars and Ijazas

Rumee states that today’s scholars are often seen as being of lesser caliber in contrast to the past scholars. This is consistent with music and acting as well, when many people, out of some romanticized vision of the past, end up putting down newer singers and actors in competition to the older ones. As such, the new singer is judged even if that singer is on par with their older counterpart. Indeed, in contemporary times, conservative Muslims have put some past scholars on a pedestal. However, Rumee also states that past scholars could be praised in one book but lampooned in another. Ibn Taymiyyah himself was opposed by scholars in his time as a minority and controversial figure. Yet, nostalgia and a romanticized vision of the past allows many contemporary Muslims to abide by past scholars whose outlook allows them a rooting in face of radical changes in the world around them.

This fascination with the past does not allow realizing that issuing legal opinions was an elite practice in the past, which was often restricted to Arabs and the ashrafs (nobles), who wielded their privilege to issue rulings that served their interests. They could do so without challenge from women and LGBTQ scholars, as Rumee reminds us in Chapter 3 of the abysmally low literacy rates, for example, only 2-3 percent of the total population in the nineteenth century were literate under the Ottoman Empire. Rumee notes how ijazas (certificates allowing the power to issue legal opinions) were even granted to newborn babies and to some without much effort. This is consistent with Khaleel Mohammad’s observation that an ijaza is not necessarily a proof of someone’s brilliance, as such certification could be given on recitation, which does not signify the person’s acumen on deriving Islamic law. No wonder, Rumee asserts that in the past, anyone who could read and conduct research was allowed to issue legal opinions, since there was a dearth of people who could read let alone engage in critical thinking with the texts.

Rumee touches upon the example of a 19-year-old hacker who offered strong opinions against democracy and for theocracy even as he was covered in multiple piercings and was obsessed with punk rock. Such strong opinions have been noted to emerge from some youth and some converts, specifically those for whom a rigid adherence to classical legal manuals is the only way they can address their existential angst. Muslim community elders and even celebrity preachers, who have also noted this phenomenon, caution such youth against adopting hardline viewpoints and the value of proper Islamic adab (etiquette). Indeed, some youth can get quite rude and mean. These strong opinions often emerge from what Rumee would identify as Orientalism, wherein Eastern and Western values are viewed as diametrically opposed, so that some born again Muslims and zealous converts who have been through some hard personal journeys, end up viewing Westerners as immoral and materialistic and Muslims as moral and religious. They feel that Muslim viewpoints that confirm democracy, gender equality and LGBTQ affirmation are based on trying to fit in and watering down of religion, which they would reject by invoking radical reform and transformation of the societies they live in.

Hacking flows from the law to the primary sources

Rumee correctly identifies that sharia is a utopia of the individual, which differs from person to person, as for some it would be about democracy and for others theocracy. However, any successful hack, according to Rumee, has to be both relevant and ancient. For him, a successful hack does not flow from the primary sources to the law but from the law to the primary sources. In other words, justification for an opinion is an after fact. This is consistent with Behnam Sadeghi’s work on the logic of lawmaking in Islam on the issue of women leading prayers. Sadeghi meticulously points out how past jurists were justifying the opinions of their legal schools through one argument after another and that Qur’anic verses and Hadith texts were simply used ex-post as justifications. No wonder, Rumee states that legal scholars do not actually use principles to derive Islamic law.

Rumee points out that the law does not change in response to consideration of what is right and wrong but rather is dependent on maintaining the consistency of the legal framework. For instance, in a paper on torture, Rumee argues that past jurists forbade torture not out of concern for the prisoner but out of the consideration of maintaining legal categories of people in an Islamic empire. Likewise, he points out that jurists did not dwell on the morality of slavery but rather focused on ethical ways to beat a slave. This is also why they did not question the control of men over women but focused on ethical ways to treat women including disciplining them without leaving marks. As such, Rumee states that hacking Islamic law is not about justice but method, which means that for Islamic law to change on a particular issue, political, economic or social forces have to create enough pressure to overturn the incumbent legal inertia. In other words, interpretations through hermeneutical exercises do not necessarily lead to successful hacks in Islamic law if they are not accompanied by demand for those hacks in the first place.

“Rumee states that hacking Islamic law is not about justice but method, which means that for Islamic law to change on a particular issue, political, economic or social forces have to create enough pressure to overturn the incumbent legal inertia.”

This also indicates that Islamic law is not static but drastically changes, so much so that previously thought marginal views become mainstream, as in the case of permissibility of photography, which Rumee highlights in the Epilogue. However, he also indicates that such changes are so seamless that people no longer contrast the current opinion with that of the past. Unfortunately, because people have a short-term outlook, they hold on to the current opinions as part of an “unchanging” orthodoxy and any change on a newer issue has to start from scratch. People end up arguing that what they currently espouse is “mainstream” Islam whereas the previous opinion was based on erroneous cultural assumptions. This is perhaps why I have noted that Muslim students vociferously argue against husbands being allowed to discipline wives despite the clear-cut text in 4:34. Of course, the 2013 Saudi ban on domestic violence and the associated legal hermeneutics has helped shift the theological landscape. This shift has come about possibly because of the immense financial resources that back up Saudi political and financial influence on Islamic discourse. But I vividly recall a time when such physical discipline was justified as the last option in saving a marriage.

However, before we conclude that Islamic law is not about justice or morality but about maintaining the façade of a consistent Islamic discourse, Rumee also reminds us that fiqh minded Muslims are not looking for loopholes but are seeking divine will in a time where they feel tension with the changing world around them. For such Muslims, the law is important and they need to engage with the law to assert a position on issues like apostasy, homosexuality or ritual leadership for women. In this regard, the law is paramount, and it is the main point of discussion for there exist variant readings of the Qur’an and Hadith with differing messages, which can be used to justify opposite viewpoints. This is also perhaps why some Muslims argue that juristic authorities forbade accessing the primary sources directly. However, Javed Ghamidi and others would disagree on this point for they are heavy proponents of directly accessing the Qur’an. Regardless, according to Rumee, ijma (consensus) and qiyas (analogy) are also not particularly useful in terms of hacking Islamic law. The problem with consensus is that there is no consensus on its definition and analogy is viewed with great scepticism and at most yields probabilistic knowledge.

According to Sadeghi, old analogies are simply replaced by newer analogies to retain the same conclusions. An example of this may come from Rumee’s example of photography. When the opinion was that photographs are forbidden, fiqh minded Muslims came up with many justifications including those by microbiologists who argued that the camera steals the soul. Another example stems from a reaction to an article I wrote. In response to my article “Undue hardship is not piety,” one of the comments indicated that 16-hour fasts are justified on a scientific basis. Indeed, with the rise of bodybuilding and intermittent fasting, fiqh minded Muslims would resort to such justifications to uphold long fasting hours. Such a selective use of science seems self-serving for when it comes to LGBTQ Muslims, the same people would refuse to accept the prevailing consensus amongst psychological and psychiatric professional bodies that sexual orientation is not consciously chosen and that attempts to change orientation are harmful. But for fiqh minded Muslims, specifically those who care about the law but ignore science and other ethical considerations in contrast to others who care about both, prohibitions are not based on reason but because the law says so and therefore, their reasoning is an after fact to their already chosen conclusion. A quick example is that from Bilal Philips, who clearly indicates that early opposition to homosexuality was based on the argument on nature but then homosexuals scoured the Earth to find examples of homosexuality in nature. As such, fiqh minded Muslims changed their opposition from nature-based arguments to test based arguments, i.e., homosexuality is a test.

Hacking Islamic Law on Affirming LGBTQ Muslims

In terms of hacking Islamic law on affirming LGBTQ Muslims, there are several arguments that can be made. However, Rumee distinguishes between patching and hacking. In Chapter 1, he defines patching as a temporary fix, that is, addressing an urgent need by modifying historical laws. Whereas, hacking is about finding a solution to that problem by working within the system. The former rests on istihsan (based on necessity, custom, free choice), talfiq (piecing together) or istislah. Like talfiq and istislah, istihsan is a juristic term that refers to discretion on preferring a particular judgment in Islamic law over others. Talfiq is about deriving rules from material of various schools instead of following just one. Finally, istislah is related to maslaha (public interest) and is about solving problems that have no clear answers in the scriptural texts. These methods do not lead to lasting change and I am in agreement with Rumee on that. For instance arguing on the basis of darura (necessity) is tricky, as it is often restricted to a life-death situation. Hussein and I have counter-argued that such arguments can be applied to haja (needs) as well. However, such arguments are based on the fact that an exemption is being given whereas the original position of prohibition of same-sex relationships remains intact. Likewise, arguing on the basis of custom is problematic, as fiqh minded Muslims always raise issues of personal weakness and are averse to changing the law based on time and place despite the fact that Shafi himself changed his positions as he moved from Iraq to Egypt. However, in principle fiqh minded Muslims will have to concede that as a principle the law is fixed on ibada (worship) but changes on muamalaat (social transactions).

In terms of talfiq, there arises a pick and choose problem which has been noted through a juristic saying on mixing the Medinese opinion on ityan bil dubur (anal sex), Kufan on nabidh (wine from dates) and the Meccan on riba (interest). However, this also indicates that a truly singular Islamic framework may not be feasible due to the differing opinions among the various schools and also that on many issues there is a range of opinions from prohibition to undesirability to outright permissibility. Finally, istislah is about achieving the five over arching goals in Islam and Scott Kugle has developed the case for same-sex unions on the basis of this approach. However, Rumee points out that such an approach also allows for sad al dhara’i (blocking the means), which has been used in Malaysia to ban the use of the word “Allah”’by non-Muslims and in places like Saudi Arabia against the celebration of Valentine’s Day. Additionally, those who first employed the maslaha approach did not do so for contemporary reform purposes but to restrict the perceived excess Sufi practices and beliefs.

Rumee argues that patching leads to temporary solutions that can be overturned, as in the case of the moratorium on capital punishment, which was lifted by ISIS as they argued that the conditions of slavery and corporal punishments had returned. While groups like ISIS are politically driven and may not always be amenable to hacks in Islamic law, scholars like Mufti Taqi Usmani in Pakistan who uphold hudud punishments may possibly be persuaded otherwise. In 2013, he argued that there is no abrogation of the permissibility of taking slaves in contemporary times, but in an interview in 2015, he claimed “there is no room for slavery any more.” As such, Rumee substantiates the case for hacking Islamic law, which is both relevant and ancient by the process of embedding the narrative with older commentaries to argue that one’s narrative is not new but simply an extension of an older narrative. Alternatively, it is not so much about giving new interpretation but removing ambiguity and about addressing all related laws on an issue to create a consistent legal position.

Indeed, on LGBTQ Muslim affirmation in Islam, Hussein and I have had to address not just the story of the people of Lut, but also the Hadith texts on liwat, the mukthannathun (effeminates), the Hadith texts on ityan bil dubur (anal sex), the Hadith on awrah (nakedness of private parts), texts on the Companions and the successors, juristic discourse on liwat, and the various arguments made by fiqh minded Muslims that include those based on fitrah (nature), obedience without question, consensus, whims, slippery slope, trials and tests by Allah and also procedural issues on marriage, divorce, iddah (waiting period), polygamy et al. We also had to deconstruct that arguing for the case for same-sex unions is not apostasy. In essence, our work, based on years of discussions with fiqh minded Muslims, while motivated by the quest for justice to affirm intimacy, affection and companionship for LGBTQ Muslims, has been mostly based on the nitty gritty of Islamic law.

However, as Rumee points out, it is one thing to have a good hack but quite another to have it accepted by the Muslim community, which requires a push from political, economic and social forces. The interests of the powerful religious and political actors also have to be involved. To this end, the work of LGBTQ Muslims, which is about story telling and building community ties, is quite powerful, as it builds pressure on Muslim communities in Western countries, to address the issue. On our part, we have shared our work with some traditional scholars, among whom, Dr. Shabir Ally has been kind enough to give a generous review despite his disagreement on the Qur’anic exegesis. Moreover, just as outside pressure on slavery allowed overturning the deeply entrenched institution of slavery by instigating hacks in Islamic law, and just as hacks have been created on riba through murabaha contracts, which are also based on interest, despite the fact that riba is in no uncertain terms viewed as waging a war against Allah and His Prophet, so too is there hope for an LGBTQ affirming Islam.

“Rumee offers us hope that change is not only feasible in Islamic law but is integral to it, as that is how it has survived through centuries of Muslim communities in all times, places and context.”

In conclusion, the contribution of Rumee’s book is to demystify the process of hacking Islamic law for the general public and for allowing them to recognize that they too with some effort can hack Islamic law just like the 19-year-old youth covered in piercings and immersed in punk rock. Some Muslims complain about the rigid status quo and often state that we need to pay attention to our own texts and legal discourse. However, whenever someone comes up with a discourse, they are quick to shoot such a discourse down. In this context, Rumee’s “Sharia Compliant: A User’s Guide to Hacking Islamic Law”  offers us hope that change is not only feasible in Islamic law but is integral to it, as that is how it has survived through centuries of Muslim communities in all times, places and context. And for this, I am grateful for his book.

Junaid Jahangir is an Assistant Professor of Economics at MacEwan University. He is the co-author of Islamic Law and Muslim Same-Sex Unions. With Dr. Hussein Abdullatif, a pediatric endocrinologist in Alabama, he has co-authored several academic papers on the issue of same-sex unions in Islam.