Sexual and Gender Diversity in the Muslim World

History, Law and Vernacular Knowledge

Vanja Hamzic

• Publisher: I.B. Tauris
• Year: 2015
• ISBN:
  9780857728838
• Edition: 1
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

Discrimination on the grounds of sexual orientation or gender identity is forbidden in contemporary international human rights law, yet in many interpretations of Islamic law, this is seen to contradict the tenets of Islam. Vanja Hamzic here offers a path-breaking historical and anthropological analysis of the discourses on sexual and gender diversity in the Muslim world. The first of its kind, the book sheds new light on the understanding of diversity and resistance to hegemonic visions of the self in Muslim societies. Combining first-hand ethnographic accounts of Muslims in contemporary Pakistan including the hijra community whose pluralist sexual and gender experience defy the disciplinary gaze of both international and state law with new archival research, this book provides a unique mapping of Islamic jurisprudence, court practice and social developments in the Muslim world. Hamzic provides a comprehensive look at the ways in which sexually diverse and gender-variant Muslims are seen, and see themselves, within the context of the Islamic legal tradition.

CHAPTER 1

A CRITIQUE OF TERMINOLOGICAL CONUNDRUMS

Prior to an analysis of sexual and gender diversity in international human rights law and Islamic law and their relevance to the lifeworlds of sexually diverse and gender-variant Muslims, it might be salient to critically introduce a number of underlying discourses on human self-identification and rights. These discourses remain the site of fierce contestations across academic disciplines and social institutions, and more often than not, direct and frame the way sexual and gender diversity is thought and taught, especially in the legal domain. My primary intent here is to problematise the meaning and the scope of notions such as ‘human rights’, ‘sexual rights’, ‘sexual orientation’ and ‘gender identity’, as well as some identitary scripts of sexual and gender difference. That these notions and scripts form a language, or often – the language, in which one's knowledge about the self and the other is related, contested or preserved, is apparent to any contemporary scholar of gender and sexuality; what is sometimes less readily visibile is the limited capacity of this language to account for ambiguities, imponderabilia and other-than-common senses of one's sexual/gender selfhood and any public claims, including those framed as one's rights, attached to them.

For example, in the case of ‘human rights’, the seemingly perennial disagreement between the universalist and cultural relativist camps¹ is relevant in regards to the so-called international human rights legal standards on sexual orientation and gender identity. States that incline to cultural relativist interpretations of human rights may seek to justify the violations of those standards by claiming that human rights to sexual and gender plurality conflict with their particular ‘culture’. In a similar vein, the clashing essentialist and constructionist discourses on the origins and universal validity of the notions of ‘sexual orientation’ and ‘gender identity’ have been instrumental in discussions about the identity politics around sexual and gender diversity.² But, can the language of standards suffice in an ontic dilemma that individuals and communities sometimes face when forced to choose, in private as well as in public domains, between multiple facets of ‘what it means to be themselves’?

Let us, then, first query (if somewhat rhetorically) what law has to do with human identities, and vice versa, what it means to be someone in law. This trajectory reveals, of necessity, that law ‘can “make up” people’³ and that identities, orientations and proclivities remain the domain of legal intervention par excellence. We can then proceed with a brief critical assessment of human rights, sexual rights, sexual orientation, gender identity and some taxonomies relevant for sexually diverse and gender-variant Muslims. When interrogating sexual orientation and gender identity, a focus on the definitions of these notions offered in the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity (Yogyakarta Principles)⁴ is in order, especially since they have arguably come to occupy a rather exceptional place in the language and ‘instruments’ of international law. Finally, a brief ontological and epistemological insight into the world of meanings and designations constructed around sexually diverse and gender-variant Muslims should reveal some of the most dramatic social, political and legal clashes of discourses, including those of (anti-)Orientalism⁵ and (post-/anti-)colonialism.

Law and Identity

The Lebanese-French author Amin Maalouf relates that a life spent writing has taught him to be wary of words: ‘Those that seem clearest are often the most treacherous. “Identity” is one of those false friends’.⁶ For him, identity resembles a panther: ‘Why “panther”? Because a panther kills if you persecute it and kills if you leave it alone, and the worst thing you can do is to leave it alone after you've wounded it. But also because a panther can be tamed’.⁷ Indeed, one can observe on a daily basis the unrelenting attempts by states, religious elites and other power centres to tame this perfidious notion and thus exert some control over those aspects of human self-defining that they deem dangerous. It is precisely this imaginary danger that propels persecution and sanctions against those who ‘differ’; that is, who identify outside the prescribed, socially and politically fixed notions of the self.

Identities are perceived as exceptionally powerful (and dangerous) because they ‘provide what we might call scripts: narratives that people can use in shaping their life plans and in telling their life stories’.⁸ Yet the mere existence of certain ‘mainstream’ scripts does not ipso facto guarantee that the power structures they perpetuate will remain unchallenged. In the continuous process of self-constitution, human beings ‘tend to prioritize different forms of “community” as spaces of self-accomplishment, no matter if the community is real or imaginary, self-selected or simply imposed’.⁹ Identities migrate, develop and transform, thereby inevitably remoulding the communities they inform. The dominant scripts – the identities prescribed by ruling elites – need to be constantly reiterated to sustain themselves.

Unsurprisingly, the imposition of the dominant identity-construing narratives is commonly facilitated by law. Critical legal studies have disclosed and widely debated juridical and disciplinary powers of law, whereby ‘[j]uridical power refers to the enforcement of forms of behaviour and disciplinary power refers to the normalizing, production and colonization of forms of identity’.¹⁰ Legal rhetoric and stipulations are therefore employed not only to classify the behaviours that are either permissible or prohibited but also to identify the types of people under the rule of law. This inevitably means that, as Sara Ahmed argues, ‘to become a subject under the law one is made subject to the law that decides what forms lives must take in order to count as lives “worth living”’.¹¹ Such ‘quality judgment’ necessitates an enquiry of primarily moral(ising) nature in which human identities, orientations and proclivities are negotiated and categorised in order to support the dominant value system.

Given this powerful and problematic role of law in human lives, it is understandable why the tenets of identity politics as well as their critiques are so often framed in legal terms. As much as it can be the principal site of systemic oppression of certain ‘outlawed’ identities, the judicial realm seems to be perceived, at least by some, as a tour de force of positive social changes. This seemingly ambiguous role of law and legality is perhaps best reflected in the paradox of human rights.

Human Rights

The idea of human rights has been explained, inter alia, as a two-part claim: first, it proposes that human beings are ‘special’ because they possess an ‘inherent dignity’ and they are endowed with ‘equal and inalienable rights’;¹² second, because they are ‘special’, ‘certain choices should be made and certain other choices rejected; in particular, certain things ought not to be done to any human being and certain other things ought to be done for every human being’.¹³ These choices are generally categorised as rights in international law and universally promoted and protected via the international human rights system.

International law has thus become ‘the official language of human rights, quite distinct from customary or even constitutional rights regimes’.¹⁴ As such, it has dramatically reformed the international legal domain: what had been known as a ‘gentle civiliser of nations’¹⁵ had, seemingly, gradually evolved into an international mechanism for the protection of the individual both by and from the State.¹⁶ Yet, ‘rights language’ as epitomised in international law is a paradox. On the one hand, its avowed legal strength derives from an articulated ambition to be binding erga omnes, thus cutting across the political, cultural and religious differences of the today's world. On the other hand, this purported lingua franca is a product of continuous negotiations and political compromises, the most insidious of which are dealt under the ideological banner of neo-liberalism.¹⁷

It is beyond the scope of this book to engage with numerous historical and contemporary critiques of human rights. But, even if it is taken for granted that the concept of human rights is an indispensible socio-legal reality, there are at least three underlying discourses that need to be critically examined, since they are continuously deployed in the heated pro et contra debates on sexual and gender pluralism. The three discourses concern (1) the origins of human rights; (2) the human rights debate between cultural relativist and universalist camps; and (3) the critique of human rights as an ‘anti-emancipatory’ project.

Despite the fact that ‘[m]odern human rights law derives primarily from Western philosophical thought dealing with the relationship between those who govern and those who are governed’,¹⁸ human rights as an ethico-legal concept can well be traced into antiquity. Most notable examples include the Neo-Sumerian Code of Ur-Nammu (c.2050 BCE);¹⁹ the Buddhism-inspired edicts promulgated by Aśoka the Great (304–232 BCE), an Indian emperor of the Maurya Dynasty;²⁰ the philosophical works of Socrates, Plato and Aristotle on φυσικόν δίκαιον (natural justice/right);²¹ as well as numerous human rights reforms enacted by the Prophet Muhammad²² and his four immediate successors, who established the first Muslim caliphate (632–61 CE).²³

Yet, the variety of historical and present-day social justice claims pronounced via the ‘rights language’, and their wide geopolitical distribution, do not make that discourse immune to neo-imperialist ideological usurpations that serve the political and class elites. As Gayatri Chakravorty Spivak has observed, the ‘idea of human rights […] may carry within itself the agenda of a kind of social Darwinism – the fittest must shoulder the burden of righting the wrongs of the unfit – and the possibility of an alibi […] for economic, military, and political intervention’.²⁴ The narrative of the ‘fittest’ providing for the ‘unfit’ resuscitates the colonial vision of Euro-American supremacy, cloaked in the veneer of an illusionary model of human rights. Cunningly informed by what is indeed a kind of²⁵ social Darwinism, this narrative is duly preached to the ‘underdeveloped’ societies of the global south by the new local classist elites, which now include many domestic non-governmental organisations (NGOs). As Spivak explains, this emerging elite representing the ‘fittest’, ‘although physically based in the South […], is generally also out of the touch with the mindset – a combination of episteme and ethical discourse – of the rural poor below the NGO level’.²⁶ This malicious phenomenon renders subaltern²⁷ all those below the exclusivist reach of certain civil society structures formally devoted to the promotion and protection of human rights. The post-colonial critique of human rights²⁸ is, therefore, an apt mechanism for disclosing and resisting the exploitative narratives and deployments of the ‘rights language’, especially in the ‘developing’ post-colonies of the world.

In a similar vein, universalist and relativist stands on rights are often defended as two opposing and mutually exclusive epistemological categories²⁹ – two distinct parallel ‘truths’ about human nature – in the language of human rights. Universalist claims are based on the assumption of universal human nature,³⁰ since we are all ‘born free and equal in dignity and rights’.³¹ Th...

Table of contents

• Front Cover
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgements
• Introduction
• 1. A Critique of Terminological Conundrums
• 2. Sexual and Gender Diversity in International Human Rights Law and Its Originatory Milieux
• 3. Sexual and Gender Diversity in Islamic Law and the Muslim World
• 4. Muslim Sexual and Gender Diversity in Contemporary Pakistan
• Conclusion
• Notes
• Bibliography