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Consensus (Ijma’a) is Not Set in Stone, Nor is it Absolute and Final

8 Jun 2019

One of the arguments that is often said against the case of the acceptance of homosexuality is this: that there is a consensus (ijma’a) on the issue on the prohibition of homosexuality and that no normative scholar has ever said it was permissible. And therefore there is no scope to accommodate this. Below is a closer look at the argument that is often used…

 

What is ijma’a  إجماع (consensus)?

 

Ijma means the unanimous agreement on a ruling for a specific issue in Islamic law (fiqh فقه). The ironic thing is that there isn’t an ijma’a on what constitutes as an ijma’a (1). There are three common definitions of what ijma’a is:

  1. The consensus of the companions of the Prophet صلى الله عليه وسلم (the Sahabah)

  2. The consensus of the scholars.

  3. The consensus of the scholars and the lay people.

Notice if there is just one dissenting opinion, then ijma’a is not reached. Because of how convoluted the issue of ijma’a is, there are scholars who claim that to reach ijma’a is impossible. Imam Shafi’I said that for all scholars and laymen throughout history to agree on a single issue is impossible (2). Imam Ahmed ibn Hanbal even goes as far to say that whoever has claimed ijma’a has lied as there may have been a disagreement that has not reached us.

 

Given this, am I arguing that we should dismiss ijma’a as a concept? This is not what we are arguing here. What is being argued here is that although ijma’a can be a guide as to what Islam’s stance is on a particular issue, but that it is not absolute and final. As it is a human effort to understand a particular part of the Quran. Especially when an ijma’a is produced by people of a single demographic, from a single point in time, with shared cultural beliefs, then it is more likely that they will all agree with one another. 

 

Often when ijma’a is used as an argument in the case against homosexuality, it stalls argumentation about the issue and shuts it down from honest intellectual discussion to get to the truth of the matter.  Even if something is apparently settled and clear in the Quran, there may be other ways to interpret the verses in ways previous people never thought about before. Especially as we begin to study a subject in the natural sciences and through experience, we will acquire new knowledge on the matter. It is new knowledge that we would need to consider when it comes to thinking about our Islamic principles.

 

Therefore things need to be left open. Knowledge is not static; it is forever evolving and increasing in nuance. I remember in a sermon Mufti Menk himself saying “knowledge (ilm علم) is a sea with no coasts” (3). there is no end to seeking knowledge. So we cannot put a full stop here saying that Allah has settled the matter, when in fact he tells us to ponder upon the Quran and go out into the world and study his creation? (4, 5)  

(see possible alternative interpretations of Qawm Lut story here).

 

New knowledge on the Issue


Homosexuality has only been discovered to be an orientation in its own right recently. The term ‘homosexual’ was coined in the early 20th century by psychiatrists for diagnostic purposes. Before then, it was thought as a mere act that could be ‘resolved’ through heterosexual activity (6) among other bizarre theories (7, 8). Any LGB person will tell you that this does not ‘fix’ their sexuality and they will continue to be as they are. The study into homosexuality is a relatively recent endeavour and has been happening since the middle of the 20th century. We are closer to understanding the origins of homosexuality and we also have new moral arguments for the case of homosexuality which need to be considered… away from the baggage of harmful stereotypes of LGB people (9).

 

I would then ask how many of our scholars actually have the knowledge on the latest research to be able to issue a verdict. When a scholar speaks on an issue they don’t have expertise in, they don’t speak as a scholar. They speak as a layman.

 

“The science and rational arguments are irrelevant. What matters is what Allah says”.

 

First of all I would encourage you to look here at the possible alternative interpretations of the Qawm Lut story here.

 

Furthermore, if you’re going by the argument that morality is defined by the traditional interpretations of the Quran and Sunnah, you would also need to accept that the scholarly tradition have argued the permissibility of owning female captives (those whom your right hands possess ملك يمين) and sexual relations with them without the need of consent (reference). You would also need to accept that it is permissible to marry a minor who has reached puberty based on the widely held belief that Aisha (May Allah be pleased with her) was nine years old. We know that both are clearly immoral even though many from the scholarly tradition say that it’s halal.

 

Some may say “yeah but that was a different time and a different context and the rulings have changed now to suit our context as we are more informed”. Okay, so how come you’re not willing to apply this to LGB matters? Why are you not fervently defending the keeping of slavery and concubines in the name of traditional interpretations?


Cultural and Systematic Homophobia Affects Judgements and Legal Rulings.

 

There is no denying that this is a significant thing that plays a part in formulation of legal rulings and judgements. Every one of us has our biases as a product of our own self-interests. But also the social, historical and political context we grew up in and are a part of. It is no denying that there is a deep-rooted dislike of LGB folk in our societies.  This could also be a reason as to why there is a lack of diversity of opinions on the issue- because exploration and discussion is stalled from the very beginning.  Even today, if someone were to come out and suggest an alternative opinion to the mainstream, this would result in their social or career suicide- even branded an apostate/kaafir (10). Let alone in an era or country where apostasy laws apply and could lead to persecution or even death. The circumstances to allow for exploration into the issue, to express a diversity of opinion was… and still is… very difficult

 

Ijma’a is a tertiary source of fiqh in the () school of thought, begs the question, how can it be kufr in Allah to reject a consensus made by humans who understood verses in light of their context? As though accepting homosexuality to be okay is put on the same level as associating partners with Allah. Notice how you will have Muslims who would commit major crimes that clearly are against Islam. And yet no one is calling that person a kaafir. This seems to be reserved for those who support LGBT+ rights.

 

Ijma’a is not binding.

 

Al-Bazdawi asserted that if a past ijma’a is later found unsuitable, it can be replaced through reasoning with a new ijma’a (2)

 

Iqbal believed that fiqh ought to be changed in light of new circumstances (Reference)

 

Imam Abu Hanifa though did not altogether abandon the views of the companions, he did abandon their ruling which did not appeal to him. (2)

Shaltut says that the objective of ijma’a is to realise the public interest (maslaha), which will vary from time and place, and ijma’a has to be reviewed if it is the only way to get maslaha (11).

 

Past examples of people going against ijma’a ibn taymiyyah, ib uthaymeen,

 

The Problem with Majoritarianism.

“Are you saying 1400 years of scholarship is wrong?”

It’s possible. Especially if it is regarding an area that’s not well researched… and where discussion has been shut down. The length of how long we believed something is not an indication of whether or not it’s a fact.  You have to look at the strength of the argument and the evidence. By that same logic, you could argue “are you saying 2000 years of Christians and Christianity is wrong?” and they’re more numerous than Muslims too. “Are you saying that 5000 years of Hinduism is wrong”? “Are you saying 3500 years or Rabbinic scholarship is wrong?”. The thing about a majority view that it gives a false sense that it has to be ‘more true’.

 

Conclusion:

 

So as I have presented, the issue of homosexuality in Islam is one that is far from settled. We have new knowledge, new research and plenty of LGB Muslims who are aching because of this split between their faith and their sexuality. I was/am one of those who in that difficult position. The unwillingness to approach this topic with an open mind is doing more harm than good. I understand the attempt to preserve what is thought to be ‘Islamic values’. But the question is whether the prohibition on homosexuality is an Islamic value to begin with… or is it a product of a cultural context. Even if we were to accept homosexuality to be okay, it is not like the whole Aqeedah, the five pillars of Islam, and the six articles of Iman are going to collapse. Islam as a whole will not be affected by any change in this ruling. Islam as a framework will still remain strong as its framework is not centred on sexuality. I ask for the Islamic scholars, jurists and students of knowledge to put their baggage aside and to critically engage in this discussion without fear of the people and social ramifications. It is your fellow LGB Muslim brethren who are at stake. Fellow Muslim brethren considering the prospect of leaving the faith, facing the prospect of disownment by families, serious mental health issues, forced marriages, sham marriages that ultimately lead to broken homes and a life of loneliness and celibacy.

 

 “So fear them not, but fear me, if you are [indeed] believers.” -Quran 3:175

 

References:

  1. Dr. Shabbir Ally. Principles of Islamic Jurisprudence: Ijma. Youtube Video. https://www.youtube.com/watch?v=xpcnu-MbG0Q&t=3s

  2. Farooq. “The Doctrine of Ijma”

  3. Mufti Menk on Twitter. https://twitter.com/muftimenk/status/186203441436164096?lang=en

  4. Qur'an 7: 185

  5. Qur'an 30:12-24

  6. Khaled El-Rouayheb “Before Homosexuality in the Arab-Islamic world, 1500-1800”.

  7. 7 Bizarre Theories of What Causes Lesbianism. https://theestablishment.co/7-bizarre-theories-on-what-causes-lesbianism-934837be01b9/index.html

  8. Ubna

  9. John Corvino. “What’s Morally Wrong with Homosexuality”. https://www.youtube.com/watch?v=5iXA_0MED98

  10. Yasir Qadhi: “…to stand up, and justify it, or defend it, or write articles claiming that it is Islamic, without a doubt constitutes kufr, and not merely sin”. Dealing with homosexual urges.

  11. Junaid Jahangir. “Islamic Law and Muslim Same-sex Unions”.

 

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