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Reinterpreting Usul al-fiqh: Taking a Literary Approach to Prohibitions against Homosexuality in the Qur’an


Riaz, Beenish (2021). Reinterpreting Usul al-fiqh: Taking a Literary Approach to Prohibitions against Homosexuality in the Qur’an. Electronic Journal of Islamic and Middle Eastern Law (EJIMEL), 9(2):9-38.

Abstract

In just a few decades, homosexuality has gone from a condemned criminal practice to a protected status. Each individual now has a recognized human right to be free from discrimination on the basis of his or her sexual orientation. Still, homosexuality remains a crime in many Muslim countries. Some even impose capital punishment for the act, using Islamic law to justify this. Jurists derive Islamic law (fiqh) from interpretations of two revealed sources of law – the Qur’an and the Sunna – through a set methodology termed usul al-fiqh. The prohibition against homosexuality largely (and often exclusively) stems from literalist, inflexible interpretations of the narrative of Prophet Lot in the Qur’an. The Egyptian scholar Nasr Hamid Abu Zayd sought to reform contemporary usul al-fiqh by integrating literary analyses in legal exegesis. A literary approach allows the mujtahid or mujtahidda to decipher the purpose of the law. Knowing this, Abu Zayd argued, he or she can adapt the letter of the law to suit its overarching objective keeping in mind evolving norms and modern standards. Yet, Abu Zayd did not fully flesh out what a literary approach to usul al-fiqh would look like in practice. This paper begins to do that by applying such an approach to the prohibition against homosexuality. In fact, a literary analysis of the text suggests that the narrative does not proscribe homosexuality at all. The specific crime of the people of Lot remains ambiguous even though a ban on egotistical immorality and impurity is apparent.

Abstract

In just a few decades, homosexuality has gone from a condemned criminal practice to a protected status. Each individual now has a recognized human right to be free from discrimination on the basis of his or her sexual orientation. Still, homosexuality remains a crime in many Muslim countries. Some even impose capital punishment for the act, using Islamic law to justify this. Jurists derive Islamic law (fiqh) from interpretations of two revealed sources of law – the Qur’an and the Sunna – through a set methodology termed usul al-fiqh. The prohibition against homosexuality largely (and often exclusively) stems from literalist, inflexible interpretations of the narrative of Prophet Lot in the Qur’an. The Egyptian scholar Nasr Hamid Abu Zayd sought to reform contemporary usul al-fiqh by integrating literary analyses in legal exegesis. A literary approach allows the mujtahid or mujtahidda to decipher the purpose of the law. Knowing this, Abu Zayd argued, he or she can adapt the letter of the law to suit its overarching objective keeping in mind evolving norms and modern standards. Yet, Abu Zayd did not fully flesh out what a literary approach to usul al-fiqh would look like in practice. This paper begins to do that by applying such an approach to the prohibition against homosexuality. In fact, a literary analysis of the text suggests that the narrative does not proscribe homosexuality at all. The specific crime of the people of Lot remains ambiguous even though a ban on egotistical immorality and impurity is apparent.

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Additional indexing

Item Type:Journal Article, refereed, original work
Communities & Collections:Journals > Electronic Journal of Islamic and Middle Eastern Law (EJIMEL) > Archive > 9/2021 > Articles
Dewey Decimal Classification:340 Law
Language:English
Date:2021
Deposited On:10 Nov 2021 15:39
Last Modified:10 Nov 2021 15:41
Publisher:Center for Islamic and Middle Eastern Legal Studies (CIMELS), University of Zurich
ISSN:1664-5707
OA Status:Gold
Free access at:Publisher DOI. An embargo period may apply.
Official URL:https://www.ejimel.uzh.ch
  • Content: Published Version
  • Licence: Creative Commons: Attribution-NonCommercial-NoDerivs 3.0 Unported (CC BY-NC-ND 3.0)