Deconstructing Traditional Muslim Sexual Morality: Approaches to a New Understanding of Legal and Illegal Sex in Muslim Theology Based on the Principle of Sexual Autonomy

Abstract

This paper offers a critical analysis of traditional Muslim sexual morality and questions its validity in the present. It focuses on two elements: (1) nikāḥ as a legal marriage contract characterized by asymmetrical gender roles and (2) historically permitted sexual relations with enslaved women, as well as Muslim positions on sexual intercourse with minors. After a conceptual clarification of sexual autonomy, I examine the positions of different legal schools and contextualize their norms within broader social and intellectual histories. Building on the approach of “overcoming the text,” I argue that foundational religious texts can no longer serve as the normative basis for a contemporary sexual ethic. Instead, I redefine the notion of “illegitimate sexuality” (zinā) based on the principle of sexual autonomy and show how modern legal and social frameworks (rule of law, welfare state, medical evidence) render earlier functions of sexual regulation obsolete. The Qurʾanic concept of maʿrūf serves as a dynamic ethical reference point. The goal is a paradigm shift toward a Muslim sexual ethic that centers autonomy, equality, and human dignity while critically dismantling inherited structures.

1. Introduction

Modern societies are characterized by profound changes in the areas of sexuality, gender relations, and individual freedoms. Issues of sexual self-determination, equality, and the legal and moral regulation of sexuality are increasingly becoming the focus of public debate. While the principle of sexual autonomy is largely recognized as a normative ideal in many democracies, traditional religious moral systems often stand in tension with these developments. For Muslim communities in general, and especially those in Western societies, the question arises as to how to deal with traditional norms of sexual morality. These norms historically developed within a Muslim legal tradition that primarily regulated sexuality within the framework of marriage (nikāḥ) and legally sanctioned relationships with enslaved women. However, the legal and social conditions under which these norms emerged no longer exist today—or have themselves undergone radical transformations.

This raises the fundamental question of to what extent traditional Muslim sexual morality aligns with modern demands for autonomy, equality, and individual freedom.

This paper critically examines traditional Muslim conceptions of sexual morality, focusing on two key aspects: (1) marriage (nikāḥ) as the central model of sexual legitimacy and (2) the historical practice of sexual relations with enslaved women. My aim is first to show that many of these traditional norms are problematic from a contemporary ethical perspective and no longer align with present-day social realities. In the next step, and based on the concept of “overcoming the text”, I propose a re-theorisation of the concepts of legal and illegal sex from a theological perspective. A particular emphasis is placed on the concept of sexual autonomy: To what extent is it recognized within the Muslim tradition? To address this question, I begin with a conceptual clarification of what sexual autonomy means. The study is then structured into two main parts:

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Analysis of Traditional Norms (Section 4 and Section 5): I examine the classical positions of Muslim legal schools on nikāḥ and Sex with enslaved women and girls.

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Historical Contextualization and the Need for a Paradigm Shift (Section 6 and Section 7): I argue that the social conditions under which these norms emerged have undergone fundamental changes. From this, I derive the necessity not only for reinterpretation but for a radical rearticulation of Muslim sexual ethics.

Methodologically, I rely on a critical analysis of Muslim legal sources. My approach differs from purely theological reform efforts in that I do not merely seek a reinterpretation of inherited texts; rather, I argue that these texts can no longer serve as a normative foundation for a contemporary sexual ethic. This study positions itself as a contribution to Muslim sexual ethics in the 21st century. Fahimah Ulfat (2020, p. 94) has already emphasized in her research on the sexuality of young Muslims in Germany that a theologically grounded, humane, and egalitarian sexual morality has yet to be developed. The path to such sexual ethics is in its infancy. With this paper I seek to contribute to that endeavor by raising the necessary theological and ethical questions.

To clarify the framework of this investigation, I use the term sexual morality to describe the system of social, religious or cultural norms, values and rules that evaluate and regulate sexual behavior. It determines which sexual acts are considered morally acceptable or reprehensible and thus influences both the individual and collective perception of sexuality.

In this paper, I also use the terms “traditional Muslim sexual morality” or “Muslim sexual morality.” By this, I refer to the entirety of norms that regulate and evaluate sexual acts or define the framework of sexuality within Muslim societies, contexts, and traditions.

By “traditional,” I do not mean only the theological doctrines of the pre-modern era—i.e., those formulated before the 19th or early 20th century—but also their ideologized forms in the 20th and 21st centuries. These include, for example, the ideology of the Muslim Brotherhood or Salafism, as well as certain reform movements that employ apologetic methods. Such methods may involve the selective rejection of traditions or the projection of contemporary concepts onto the Qur’an and Sunnah. Some reinterpret the texts in ways that make them express meanings they did not originally intend. I consider all of these approaches part of the traditional discourse. Even when these currents critique tradition, they continue to rely on theological premises rooted in that very tradition—such as the centrality of the texts—without critically examining those premises themselves.

Furthermore, traditional Muslim theology does not have an independent field of sexual ethics that systematically examines sexual morality. Sexuality was scarcely, if at all, addressed in ethical-philosophical works. Even in Sufi literature, the topic played only a marginal role, with a few notable exceptions such as Ibn al-ʿArabi1 (d. 1240) (Ghandour 2023; Shaikh 2012). Instead, sexual morality has primarily been shaped particularly by Muslim law (fiqh), and secondarily by the exegesis of the Qur’an and hadiths.

Finally, I would like to highlight three important points in the introduction.

The first point concerns the scope of my analysis: My considerations apply exclusively to Muslims living in a ”Rechtsstaat”—a constitutional state based on the rule of law—and a welfare state, where certain medical advancements, such as DNA testing, are accessible. Thus, my text is specifically focused on Muslims in the so-called West. I do not argue for a universal theology that applies to all Muslims, nor do I propose a sexual morality that should be uniformly valid across all contexts.

The second point is that the principles of autonomy and self-determination serve as the normative foundation of this study. They are not chosen arbitrarily, but represent internationally recognized standards, reflected in numerous human rights conventions and legal frameworks that many states have signed in order to protect and promote these rights. This makes them the inescapable context for any contemporary ethical discourse, including theological debates. Moreover, beyond their legal and political status, there are compelling reasons from philosophy, the natural and social sciences, as well as theology, that support autonomy and self-determination as guiding principles for human flourishing. A detailed exploration of these reasons, however, lies beyond the scope of this paper and will not be undertaken here.

The third point is a trigger warning: In the first part, particularly in Section 4 and Section 5, I reference and quote passages from the Muslim tradition that describe sexual violence against enslaved persons and minors.

2. What Is Sexual Autonomy?

Over the past five decades, society’s approach to sexuality has undergone a fundamental transformation. Social movements have advocated for the right to sexual development independent of traditional moral concepts, while medical and technological advancements have created new opportunities for self-determined decision-making in matters of sexuality. These developments have led to a shift in perspective, which legal scholar Dana-Sophia Valentiner describes as a transition from sexual morality to autonomy (Valentiner 2021, pp. 55–57).

At the core of this shift is the rejection of a normative sexual morality imposed hierarchically by religion, the state, or social authorities. Instead, a consensus-based model has emerged, which Volkmar Sigusch refers to as “consensus morality” (Sigusch 2013, Kindle, chap. 76). In this framework, the moral legitimacy of a sexual act is not determined by its nature but by the manner in which it occurs—namely, through the free and informed consent of all parties involved. This means that any form of sexuality can be considered morally legitimate as long as it is not based on coercion or the exploitation of power (Valentiner 2021, p. 56).

The importance of consensual morality is particularly evident in the issue of sexual consent, which is closely linked to the concept of sexual autonomy. It is not only about whether a person consents to a sexual act, but also about the social context in which this consent takes place and which factors influence it. Shaun Miller distinguishes between three different theories of sexual consent:

Procedural Sexual Autonomy and Consensual Minimalism: This perspective defines sexual autonomy as the ability to make decisions free from external coercion or deception. As long as an individual provides voluntary and informed consent, the act is considered ethically legitimate, irrespective of social structures or personal motivations (Miller 2022, pp. 248–50).

Substantive Sexual Autonomy and Consensual Idealism: Critics of consensual minimalism argue that formal consent alone is insufficient to ensure true autonomy. West and Pineau contend that subtle power dynamics or internalized social constraints can lead individuals to make seemingly voluntary choices that are, in reality, shaped by social expectations (Miller 2022). This phenomenon, known as adaptive preferences, occurs when individuals develop preferences under conditions that reflect internalized subordination rather than genuine autonomy. Advocates of substantive sexual autonomy therefore call for higher ethical standards, emphasizing that sexual decisions should not only be based on consent but should also contribute to positive personal development (Miller 2022, pp. 250–56).

Weak Substantive Sexual Autonomy and Consensual Realism: Since the demands of substantive autonomy are often criticized as unrealistically high, a mediating approach advocates for a more graduated understanding of autonomy. In this view, autonomy is regarded as a competence that can be cultivated through reflection, emotional intelligence, and communication skills. What matters is not only the availability of choices but also the ability to critically assess them and make informed decisions (Miller 2022, pp. 256–63).

The shift from normative sexual morality to consensual morality has brought about profound social changes. While moral evaluations of sexuality used to be based on rigid, often religiously influenced norms, today free and informed consent is at the center of ethical considerations. However, this change is not without its challenges: Societal power structures and internalized constraints influence the actual scope of sexual autonomy. The debate on sexual autonomy shows that consent is far more than mere agreement—it requires critical reflection on the individual and structural conditions under which decisions are made.

Furthermore, freedom of sexual orientation and identity encompasses both sex (biological sex) and gender (social sex), which are not always clear-cut or consistent (Thiemann 2010). Sexual autonomy in this context includes the free expression of gender identity and the acceptance of sexual orientation. This affects not only who individuals choose to form relationships with, but also how they define and position themselves in terms of gender. In many societies, sexual and gender norms continue to serve as the basis for inclusion and exclusion. Recognizing sexual autonomy, therefore, also entails challenging existing heteronormative structures that shape social and legal systems according to a binary gender model (Thiemann 2010).

Based on the Declaration of Sexual Human Rights by the World Association for Sexual Health (2014), the Yogyakarta Principles plus 10 (The Second International Panel of Experts in International Human Rights Law, Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics 2017; O’Flaherty and Fisher 2008), and relevant rulings of the European Court of Justice (Valentiner 2021), the complexity of sexual autonomy can be categorized into four core areas:

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Freedom from coercion—Individuals should have the ability to choose sexual activities without pressure or force.

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Freedom of sexual orientation and identity—The right to express one’s sexual orientation and gender identity freely.

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Reproductive rights—Autonomy in matters of contraception and abortion.

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Competence and access to information—The necessity of access to information to enable informed decision-making about one’s sexuality.

These four pillars of sexual autonomy should not be viewed in isolation, but are part of a dynamic interplay. Whenever I refer to sexual autonomy in the following discussions, I am referring to the entirety of these four points.

3. State of Research on Sexual Autonomy in the Muslim Context

When discussing sexual autonomy in the Muslim context, two broad camps can be identified. On one side, there is a conservative discourse that prioritizes preserving and, above all, defending traditional norms, often as a means of safeguarding a constructed identity (Ghandour 2021). Within this camp, sexuality is understood as something that occurs exclusively within marriage and is inherently heterosexual. Sexualities that do not conform to heteronormative ideals are generally not accepted.

On the other side, there is a more diverse camp that lacks a single defining label but shares a common characteristic: the questioning of conservative sexual morality. The extent and nature of this critique vary depending on the author. This spectrum includes perspectives that range from positions close to conservatism to those advocating reform, progressivism, or even revisionism.

The discussion on sexual autonomy in Muslim societies traces its origins back to the 1970s. The Moroccan sociologist Fatima Mernissi, particularly known for her work Beyond the Veil: Male-Female Dynamics in Modern Muslim Society (Mernissi 1987), and the Egyptian women’s rights activist Nawal El Saadawi (1974) made significant contributions to this discourse. Both scholars criticized patriarchal interpretations of the Qur’an and the control of female sexuality, which they argued was reinforced by social, economic, and religious factors.

Mira Sievers has noted that the topic of gender in Muslim ethics has only recently gained scholarly attention. Over the past 15 years, research at the intersection of Muslim ethics and gender has reached a certain level of maturity (Sievers 2023, p. 185). However, the same cannot be said for studies on sexual autonomy. Research in this area remains highly fragmented and is often embedded within broader discussions on sexuality and ethics.

In this context, Abdelwahab Bouhdiba’s work La sexualité en Islam (Bouhdiba 1975) deserves mention, as it provides a historical, religious, and cultural perspective on sexuality and has been influential in later research.

It was not until 2006 that the first book specifically on Muslim sexual ethics was published. Kecia Ali’s Sexual Ethics and Islam (Ali 2006) critically examines traditional perspectives from a feminist standpoint. Ali critiques patriarchal structures in both classical Muslim jurisprudence and the Qur’an itself. She advocates for a critical, contextualized approach that considers both Qur’anic principles and contemporary realities, rather than relying on apologetic interpretations.

Another significant voice in the Arabic- and French-speaking world is the sociologist Abdessamad Dialmy. In his works Sociologie de la sexualité arabo-musulmane and Transition sexuelle (Dialmy 2014, 2017), he explores the social issues related to sexuality and sexual morality and calls for their reform. It should be noted that there are also several recent publications on this topic from a queer perspective; yet they often remain framed within reinterpretative approaches (Hendricks 2010; Kugle 2010; Zahed 2019).

4. Nikāḥ and Sexual Autonomy

Until the early 20th century, many Muslim scholars maintained that a man could have sexual relations with both his wife and his concubines (Clarence-Smith 2006). It is important to note that with the widespread abolition of slavery and the disappearance of concubinage, the scope of legitimate sexuality became restricted to marriage—more specifically, to the nikāḥ contract.

The term nikāḥ, often translated as “marriage” or “wedlock,” carries a particular nuance in Muslim law (fiqh). More precisely, nikāḥ is primarily a contract that regulates the sexual relationship between the contracting parties and establishes additional legal consequences, such as rights and obligations related to maintenance (spousal support) and inheritance.

4.1. Legal Definitions of Nikāḥ in the Classical Muslim Schools of Law

This sexual connotation is particularly evident in the definitions of the nikāḥ contract across various schools of Muslim law (fiqh). For example, in the Ḥanafī school, nikāḥ is defined as follows: “Among the scholars, it is a contract that grants the right to pleasure, i.e., permission for a man to pleasure himself with a woman.” (Ibn ʿĀbidīn 1994, vol. 4, p. 59) Ibn ʿĀbidīn (d. 1836) elaborates on this definition by quoting Ibn al-Humām (d. 1457): “One of its legal consequences is the exclusivity of pleasure. This means that the husband has exclusive privileges over the enjoyment of her vulva and all other parts of her body.” (Ibn ʿĀbidīn 1994, vol. 4, p. 59).

For the Mālikīs, it is a formal contract with the purpose of enjoying a woman sexually. In his commentary, ad-Dardīr (d. 1786) writes: “The nikāḥ in Sharia usage is a contract for the permission of pleasure, i.e., meaning the enjoyment (istimtāʿ), benefit (intifāʿ), and pleasure (talaḏḏuḏ) with a woman—through sexual intercourse, intimacy, kissing, hugging and the like.” (Aṣ-Ṣāwī 1995, vol. 2, p. 212) Ibn ʿArafa (d. 1401) also has a similar definition: “The nikāḥ is a contract aimed exclusively at the enjoyment of pleasure in a human woman, without implying [payment of her entire] value.” (Al-Ḥaṭṭāb 1995, vol. 5, p. 19)

The Shāfiʿīs understand nikāḥ as a contract that permits sexual intercourse. We read about this from the prominent Shāfiʿī jurist Al-Khatib al-Shirbini (d. 1571) in his commentary on Minhāǧ aṭ-Ṭālibīn by an-Nawawī (d. 1277): “A contract that implies permission for sexual intercourse […]. The Arabs use this term in the sense of both contract and sexual intercourse.” (Aš-Širbīnī 2000, vol. 4, p. 200) For the Hanbalīs, too, the nikāḥ is a contract behind which there is a benefit, whereby benefit means sexual pleasure (Al-Mardāwī 1955, vol. 8, p. 6).

4.2. Critique of the Traditional Definitions of Nikāḥ and the Problem of Sexual Autonomy

Feminist criticism, such as that of Kecia Ali, sees the classical nikāḥ contract as privileging men and asymmetrical in terms of gender relations, which puts female sexuality at a disadvantage. In the chapter on marriage, money and sex, Ali makes it clear that in both pre-modern and contemporary conservative literature, wives are granted only limited and conditional sexual rights. These are in contrast to the husband’s unrestricted sexual rights, which allow him to initiate sexual relations whenever he desires (Ali 2006, pp. 10, 13).

The definitions of nikāḥ across various schools of Muslim law (fiqh) emphasize the man’s sexual access to the woman, portraying her primarily as an object of pleasure. Although nikāḥ is often presented as a mutual contract, these formulations suggest that the man acquires exclusive rights over the woman’s body, leaving little room for her autonomous decision-making. Moreover, the contractual nature of nikāḥ implies that a woman’s consent is granted for the entire duration of the marriage, without the possibility of withdrawing it for each sexual act Female desire is not explicitly addressed; instead, the legal framework highlights the husband’s rights, while the wife’s sexual subjectivity remains largely absent (Ali 2006). This stands in clear contrast to the modern concept of sexual autonomy, which requires ongoing, revocable consent and acknowledges the desires and decisions of all parties involved (Miller 2022).

4.3. The Right to Sex Within Marriage: One-Sided Norms

In the Muslim tradition, legal and normative regulations concerning sexuality were predominantly formulated from a male perspective. This is particularly evident in discussions on the right to sexual intercourse. Classical scholars largely agreed that a man had the fundamental right to be intimate with his wife whenever he wished, provided there were no religious or health-related obstacles, such as menstruation (Wizārat al-awqāf 2006, vol. 44, pp. 38–39). Some scholars went so far as to consider it a serious transgression for a woman to refuse sexual intercourse without a valid reason. This position was reinforced by various statements attributed to the Prophet, warning women not to disregard their husbands’ desires, as doing so could provoke divine wrath (Wizārat al-awqāf 2006, vol. 44, pp. 38–39).

In traditional discourses, it was argued that women could not claim a comparable right to sex, as men were not physically capable of performing the conjugal act at all times. An erection was not guaranteed at every moment, while women—it was assumed—had no comparable physiological limitations. This argument can be found, for example, in the Andalusian scholar Abū al-ʿAbbās al-Qurṭubī (d. 1258), who emphasized that the man was not always ready and able to comply with his wife’s sexual desire, while the reverse was not true. (Al-Qurṭubī 1996, vol. 4, p. 161). While early scholars primarily focused on physical or ritual obstacles to sexual intercourse, there is growing recognition today that psychological factors also play a role. Nevertheless, a woman’s no often remains subject to justification and is implicitly viewed as problematic. The central question in this context is therefore: Why does a woman’s refusal of sexual intercourse require special justification, while a man’s no is taken for granted? Moreover, the perceived need to justify a woman’s refusal separately suggests that female sexual autonomy was not assumed as a given. Legal scholars—both past and present—have rarely considered the idea of an equally autonomous female subject in their discussions about sexuality.

An interesting aspect of the debate on sexual rights within marriage concerns the question of the minimum level of marital intimacy to which women are entitled. This discussion was not merely advisory but could—at least in theory—also have legal implications. Under certain conditions, a woman could demand a divorce if her husband failed to fulfill his marital duty.

The Ḥanafī school of law held that a man was legally required to have sexual intercourse with his wife only once in his lifetime. Any intimacy beyond that was considered a matter of good manners rather than a legal obligation. The Shāfiʿī school took this position even further, arguing that a man could not be legally compelled to have sexual intercourse with his wife. Accordingly, refusing intercourse was not regarded as a religious transgression, although it was considered ethically preferable for a husband not to completely neglect his wife (Wizārat al-awqāf 2006, vol. 44, p. 36)

The Ḥanbalī school took a different stance, stipulating that a husband must have sexual relations with his wife at least once every four months to fulfill his marital obligation. However, a minority opinion within this school—advocated by Ibn Taymiyya (d. 1328) and his disciple Ibn al-Qayyim (d. 1350)—argued that a fixed legal requirement was inappropriate and that priority should instead be given to the wife’s sexual satisfaction (Wizārat al-awqāf 2006, vol. 44, p. 37).

Finally, the Mālikī school adopted an even more stringent view: regular sexual intercourse was considered a binding marital duty for the husband. An interval of at least four days was recommended. If a man failed to meet this requirement, his wife could take him to court, where a judge could order him to be intimate with his wife at least once every three to four days (Al-Ḥaṭṭāb 1995, vol. 5, p. 255).

However, these regulations remained largely theoretical in nature. They were found in legal treatises, which primarily served as a reference for legal scholars and judges. Even if the question of the minimum amount of marital intercourse was in reality usually only of significance when it came to legal disputes in the context of a marital conflict, it gives us a deep insight into the understanding of sexuality in the legal and ethical discourses of Muslim theology.

4.4. Sexuality and Marriage with Prepubescent and Underage Girls

Furthermore, traditional sexual morality does not recognize a minimum age for marriage (Wizārat al-awqāf 2006, vol. 27, pp. 31–32).

This leads to the issue of sexual relations with underage girls. Such a practice is forbidden by law in most countries of the world today, even in Muslim countries. In these countries, however, we owe the ban not to critical reflection on their own theological positions or sexual morality, but to international conventions. These were sometimes enforced under pressure from the international community and ultimately ratified by the countries concerned.

The fact that sexual intercourse with little girls is permitted in traditional sexual morality is firmly anchored in the Qur’an as well as in the Sunnah, in the consensus and in the regulations of the schools of law. As with the topic of sexual relations with enslaved women, there is an extensive body of texts on this subject. Almost every fiqh work deals with the question of when a girl may marry and from what age sexual intercourse is permitted. There are essentially two main positions on this: One states that there is no set minimum age—rather, the decisive factor is whether the little girl is physically able to endure sexual intercourse, regardless of age. This means that she can be either under or over nine years old. The second position holds that sexual intercourse is permitted as soon as the girl reaches the age of nine. The Shāfiʿī Jurist an-Nawawī writes in this regard:

“As for the time of marriage of the married little girl (aṣ-ṣaġīra) and intercourse with her, if the husband and the guardian agree on something that will not harm the little girl, it will be acted upon. If they disagree, Aḥmad and Abū ʿUbaid said: A nine-year-old girl is forced to do so, but not a younger one. Mālik, aš-Šāfiʿī and Abū Ḥanīfa, on the other hand, said: The criterion is that she can endure intercourse. This differs from case to case and cannot be fixed to a specific age. And this is the correct view.”

(An-Nawawī 1930, vol. 9, p. 206)

In al-Fatāwā al-Hindiyya, a central work of the ḥanafī tradition, especially in the Mughal Empire and still widely consulted among Ḥanafīs in our time, we read:

“There are different opinions about the time of intercourse with a little girl (aṣ-ṣaġīra). It has been said that it must not take place before she reaches puberty. It has also been said that it is permissible when she is nine years old—as stated in al-Baḥr ar-Rāʾiq. However, the majority of scholars are of the opinion that age does not play a role in this matter. Rather, it is the physical condition that is decisive: if she is strong and corpulent, can endure sexual intercourse and there is no risk of damage to her health, the husband may have intercourse with her, even if she is not yet nine years old. On the other hand, if she is weak and thin, cannot tolerate sexual intercourse and there is a risk of damage to her health, the husband is not allowed to have sexual intercourse with her—even if she is older. This is the correct view.”

(Burhānpūrī 1310H, vol. 1, p. 287)

These two explanations, which I will limit myself to here, are based on the discussion of the Qur’anic verse (65:4) as well as numerous traditions of the Prophet and his companions. These report that girls were married off at a very young age. In many Muslim countries, this practice is still a reality and some societies are still struggling with this problem (El Arab and Sagbakken 2019; Gausman et al. 2019; Islam et al. 2016; Noor 2013; UN 2016). And the relevant norms regarding sex with little girls can still be found in theological books, they continue to be taught in Sharia faculties, and there are numerous fatwas that explain such acts in detail and even permit them (Islamweb 2013).

Denying these facts or using apologetic arguments to reinterpret texts from the Qur’an or reject the relevant traditions simply because we have a different moral concept today is, in my opinion, the wrong approach. Instead, we should first recognize that such problematic norms exist in our tradition and are anchored in religious texts. Only on this basis can theological and ethical reflection take place.

5. Permitted Sex Outside of Marriage

Traditional Muslim sexual morality, as formulated in theological discourse—be it in legal works or in commentaries on the Qur’an and Hadith—but also found in numerous places in the Qur’an itself and in the Hadith, contains norms that are no longer accepted in most countries in the world today, even in Muslim countries, and are sometimes even considered criminal offenses. In addition to the previously mentioned permission for sexual intercourse with young girls (aṣ-ṣaġīra), another problematic norm is the allowance of sexual relations with an enslaved woman.

Both the Qur’an and the Hadith, reinforced by the unanimous consensus of all Muslim schools of law—whether Sunni, Shi’a, or Ibadi—declared it permissible in the pre-modern era for a man to have sexual relations with his own enslaved woman. Legal texts from this period contain multiple chapters on the treatment of enslaved individuals, including regulations regarding sexual relations. Ibn al-Qaṭṭān (d. 1231), a prominent scholar who contributed to the consensus literature (kutub al-iǧmāʿ), wrote:

“And there is consensus (aǧmaʿū) that it is permissible for a free, sane, adult Muslim man who is not under guardianship to own Muslim female slaves and have sexual intercourse with them, provided that there is no kinship, milk relationship, or sisterhood between them—factors that would prohibit marriage even in the case of free women. […] Moreover, intercourse with slave women belonging to the People of the Book by the right of possession is permitted, based on the explicit wording of the Qur’an and the consensus.” (Ibn al-Qaṭṭān 2003, vol. 2, p. 12). Similar can be found in Ibn al-Mundhir’s Book on Consensus and in Ibn Qudāma’s encyclopedic work al-Muġnī, among others (Ibn al-Munḏir 1999, p. 190; Ibn Qudāma 1997, vol. 14, p. 580).

There are numerous passages in the Qur’an that permit sexual relations with a female slave without a nikāḥ contract. One such example is the verse: “… and those who guard their chastity, except with their wives or those whom their right hands possess, for then they are not to be blamed” (Qur’an 23:5–6; 70:29–30). Not only is sexual intercourse with an enslaved woman permitted, but also with a woman captured in war, even if she is already married. In verse 4:24, which lists the women a man is prohibited from marrying, it states: “And [forbidden to you are] married women, except those whom your right hands possess. This is God’s decree for you.” The term muḥṣanāt, translated here as “married women,” has been interpreted in various ways in Tafsīr literature, sometimes even contradictorily. Two of these interpretations are particularly relevant to this discussion.

The first interpretation states that a Muslim may engage in sexual intercourse with a married woman as soon as she is enslaved in war—regardless of whether her husband is still alive. A tradition recorded by aṭ-Ṭabarī, which also appears in Ṣaḥīḥ Muslim, supports this view:

“Abū Saʿīd al-Ḫudrī reported: The Messenger of God—may God bless him and grant him peace—sent an army to Awṭās on the day of Ḥunayn. They encountered the enemy, fought them, defeated them, and took captives, including women. However, some of the Companions of the Messenger of God—may God bless him and grant him peace—hesitated to engage in intercourse with them because they still had husbands among the idolaters. Thereupon, God—exalted and mighty is He—revealed the verse in this context: ‘And the honorable women, except those whom your right hands possess.’ This means: They are permitted to you as soon as their waiting period (ʿidda) has expired.”

(Aṭ Ṭabarī 2001, vol. 6, p. 564)

In other traditions, it is explicitly mentioned that the Companions asked the Prophet directly whether sexual relations with these women were permissible. He is said to have granted them permission based on this verse (Aṭ Ṭabarī 2001, vol. 6, p. 564). This interpretation was upheld by both Sunni and Shi’a schools of law (Ibn Rušd 1982, vol. 2, p. 45; Al-Ardabīlī 1421H, vol. 2, pp. 248–49).

Shi’i tradition further holds that a master may have sexual intercourse with his female slave even if she is married to his male slave. A narration from Ǧaʿfar aṣ-Ṣādiq states:

“If a man marries his slave to his female slave and then desires her himself, he should say to the slave: ‘Stay away from her.’ As soon as she has menstruated, he may have intercourse with her and then, if he wishes, return her to him.”

(Al-Kulaynī 1988, vol. 5, p. 481)

Another tradition from the Shi’a corpus conveys a similar ruling:

“I asked al-Bāqir about the statement of God—exalted and mighty is He—‘And the honorable women, except those whom your right hands possess.’ He said: This means that a man orders his slave, who is married to his female slave, ‘Stay away from your wife and do not approach her.’ Then he restrains her until she has menstruated, after which he may have intercourse with her.”

(Al-Ardabīlī 1421H, vol. 2, pp. 248–49)

In the second interpretation of the verse, the focus is not on women and girls enslaved in war but on enslaved women and girls who were bought or sold. In this context, muḥṣanāt refers to married women and girls—unless the woman or girl in question is an enslaved person who has been sold by her master. In such cases, she becomes permissible for her buyer, as the sale by her master annuls her previous marriage, for instance, to another slave. This view is attributed to several Companions of the Prophet and scholars of the second generation, including Ibn ʿAbbās, Ǧābir b. ʿAbdallāh, Ubayy b. Kaʿb, ʿAbdullah b. Masʿūd, and al-Ḥasan al-Baṣrī (Aṭ Ṭabarī 2001, vol. 6, pp. 265–68).

In today’s neo-traditional circles, permission to have sex with a slave is not ethically questioned. Instead, it is simply said that slavery no longer exists today and that these norms are therefore no longer applicable. A critical examination of these norms within one’s own tradition remains largely taboo (IslamQA 2002; Islamweb 2007; ʿAbd al-Ġaniyy Ḥamza 1984).

A good example of this apologetic approach is the work of Jonathan C. Brown in Slavery and Islam (Brown 2019, ebook, chap. 7). Brown’s argument is based on the assumption that sexual relationships between masters and enslaved women were historically normalized. This leads to several problematic implications.

First, Brown commits a naturalistic fallacy: just because a phenomenon was historically widespread does not mean it is morally acceptable. Second, he ignores the fact that moral progress is not merely a cultural development but rather the result of ethical reflection and societal discourse. In this context, he attempts to deconstruct the modern emphasis on consent by highlighting its supposed “arbitrariness,” particularly criticizing legally established age limits as arbitrary. However, legal standards must be generalizable and are now based on findings from various scientific disciplines, such as medicine, developmental psychology, sociology, and evolutionary biology.

Furthermore, Brown constructs a straw man by implying that consent is the sole moral criterion for sexual relationships nowadays, when in reality, it is a necessary but not sufficient condition. Ultimately, his argument serves to exonerate premodern sexual norms. To further support his thesis, Brown employs apologetic strategies, drawing historical comparisons that portray sexual relationships between masters and enslaved women as widespread. However, this strategy relativizes the moral issue by suggesting that historical normality equates to moral legitimacy.

Additionally, he relies on a form of historical determinism that systematically undermines the possibility of moral critique. Another apologetic strategy he employs is pointing to “Western” double standards to deflect criticism of premodern Muslim norms—a rhetorical tactic that shifts focus away from the core issue.

From a theological perspective, the discussion of this topic is central. Is it theologically possible to argue that sex with enslaved women is morally wrong and should be rejected under all circumstances? Such an assessment would mean that the Qur’an permits something that, from our perspective and based on our knowledge, is ethically unacceptable today. It would also suggest that the Prophet engaged in an act that we find problematic today. Furthermore, it would indicate that the former consensus of all Muslim schools of law—namely, that sex with an enslaved woman was permissible—was a consensus on a false sexual ethical norm. This would open a kind of “Pandora’s box.” After all, the Qur’an, the Prophet, and the consensus (al-iǧmāʿ) are considered the foundations of Muslim theology and its discourse. There is no way around a critical examination of these foundations—but not by relativizing and reinterpreting the texts, as has often been done in the past.

These pressing questions will now occupy us in the following sections. I will attempt to provide answers, though they should be understood merely as attempts rather than definitive conclusions. For theological and ethical reflection is an ongoing process—one that must remain open to new insights, historical reevaluations, and evolving moral considerations.

6. The Historical Conditionality of Traditional Muslim Sexual Morality and Overcoming the Text

So far, we have examined how the nikāḥ contract is defined across various schools of Muslim law (fiqh) and what gender-specific asymmetries arise from it. We have also established that principles such as sexual autonomy are difficult to reconcile with this model of relationship. Additionally, we have explored other aspects of Muslim sexual morality, including the minimum age for a sexual relationship between an adult and a minor, as well as the permissibility of sexual intercourse with enslaved women.

My intention here is not to construct a straw man. I fully acknowledge that the Muslim tradition also contains positive perspectives on sexuality, which I have discussed in detail in my two monographs (Ghandour 2017, 2019). However, critically engaging with the negative aspects—particularly if one finds them objectionable—should serve as a basis for questioning and, if necessary, reassessing the entire framework of traditional Muslim sexual morality. After all, if this moral system contains problematic elements, it must be legitimate to subject it to thorough scrutiny in its entirety.

A critical examination reveals that traditional Muslim sexual morality is neither timeless nor divinely ordained but has developed historically. When we look at neighboring religions and cultures in the Mediterranean, Mesopotamia, or other agrarian societies, it becomes evident that many, if not most, aspects of Muslim sexual morality can also be found in other ancient traditions—both within the so-called Abrahamic religions and in other belief systems (Leick 2003; Parrinder 1998; Fisher 2017; Hersch 2023; Ghandour 2019).

Muslim scholars have largely failed to recognize this aspect for a long time, particularly before the 20th century. Their argumentation has primarily relied on traditional texts, which they interpret in a highly philological manner without considering socio-cultural, political, or socio-economic factors. By this, I do not mean ʿurf (customary law). I refer instead to these factors as part of a broader meta-level of analysis.”. The fuqahāʾ operated within a closed intellectual cosmos—an approach that was understandable given the state of knowledge at the time. This was largely due to their assumption that the Sharia possessed a unique status, with its rulings deriving directly from God or being legitimized through divine revelation. This belief in Sharia as a singular and divinely sanctioned source led scholars to focus on textual exegesis rather than contextual analysis, reinforcing a framework in which historical contingency and external influences were largely overlooked.

But what excuse do Muslims have today? Anyone who relies exclusively on religious texts without questioning their origins cannot answer the question: Why is a certain sexual norm mentioned in the Qur’an or the Hadith in the first place? A traditional answer such as “Because God wanted it that way.” remains insufficient—especially when one considers that the same norms of sexual morality also existed in cultures that worshiped Baal, Amon or Zeus.

If we accept, in a moment of honesty and without apologetics, that norms such as sexual intercourse with enslaved women and girls, the lack of a clear age limit for sexual relations or the objectification of female sexuality are anchored in the Qur’an, in prophetic statements and in practice, then the question inevitably arises as to what theological consequences this concession has.

Various approaches can be formulated here that enable different paths of theological reflection. A first suggestion would be to understand these norms as specific to the addressees of the time. The regulations of the Qur’an and the Prophetic tradition could therefore be interpreted as context-bound responses to the social and economic reality of 7th century Arab society. However, the fact that a universal sexual morality for all Muslims and for all times was constructed from this is a theological step that only took place later in the course of the emergence of fiqh and the systematic formation of norms. In fact, neither the Qur’an nor the prophetic tradition contains any clear statement that explicitly prescribes that all norms derived from the Qur’an or set by the Prophet must remain unchanged in every era.

The idea that a particular revelation was elevated to a universal norm for all people is therefore a later subsequent construct of theological traditions.

One could take this approach even further and argue that, although the Qur’an is divinely inspired, it was profoundly shaped by the Prophet’s personal experiences and historical context. Theories of prophethood and philosophical accounts of revelation, as developed by Ibn Sīnā, al-Fārābī (Rahman 2011) and Ibn al-ʿArabī (Ghandour 2020), could provide a foundation for such a position. All of them share the assumption that revelation involves an act of translation between what the Prophet experiences and what he subsequently communicates. This implies that the text he conveys is formulated by him, a view also shared by certain Ashʿarites (Al-Bāğūrī 2002, p. 162).

If this perspective is combined with the idea that prophets are human beings shaped by their historical and intellectual environment, then the transmitted text—in this case, the Qur’an—could be understood as follows: the normative statements should not be read as transhistorical truths, but as situational responses to the specific needs of a given society. In this sense, the humanity of the Prophet becomes theologically significant, for acknowledging that he was shaped by the cultural and social conditions of his time—and that these influences also left their mark on the text—does not contradict belief in him.

This insight opens up the possibility of understanding his role model function not only as an inspiration for the further development of moral values, but also of critically questioning them. Does imitation mean that every single aspect of his life must be adopted unchanged, or does it rather require a reflective consideration of what is timelessly valid and what was an expression of his historical lifeworld? An uncritical exaggeration of his actions can lead to social change being blocked, even if new ethical insights suggest an adaptation. This uncritical exaggeration can be found, for example, in Johnathan C. Brown’s book on slavery:

“If there is a moral reality ‘out there’ in the world, and if human reason is capable of grasping it, then why do some people think slavery is right and others that slavery is wrong? Why did essentially everyone in 500 ce think slavery was morally acceptable while essentially all their descendants in the year 2018 consider it inherently barbaric? These questions could only be answered if you held an evolutionary view of human moral reasoning. This would mean, however, that we had capacities for moral understanding that Moses, Jesus and Muhammad lacked. We would have no need for their guidance, and our attachment to their moral and spiritual legacies would be little more than nostalgia, like adults looking fondly at their childhood scribblings”

(Brown 2019, ebook, chap. 7)

Brown wrongly assumes that a moral reality cannot exist simply because it has not been recognized for a long time. It took humanity thousands of years to gain fundamental scientific knowledge—but that does not mean that this knowledge did not exist before then. For example, people long believed that the earth was the center of the universe until advances in astronomy showed that it moved around the sun. Similarly, the Earth was thought to be flat until more precise measurements and observations confirmed its spherical shape. According to Brown’s logic, one could just as well argue: How can the earth be round, given that there have always been people who have questioned—and continue to question—this, such as the Flat Earth movement.

In the same way that scientific truths existed long before humans were able to recognize them, moral reality can also exist independently of whether it has yet been discovered or universally accepted. Moral consciousness, therefore, can evolve without morality being reduced to mere relativity. And even if one were to adopt a relativist perspective, it would still be possible to argue that moral standards from a given historical context can be judged, from today’s standpoint, as inadequate or even wrong. This shows that acknowledging the historical relativity of moral views does not necessarily prevent us from critically evaluating them; on the contrary, it allows us to recognize moral progress over time.

Brown consciously or unconsciously ascribes moral omniscience to Moses, Jesus or Muhammad; yet they themselves never claimed such authority. Their role was to provide moral guidance in their respective contexts, not to present a final, all-encompassing, universal and definitive morality. Their teachings addressed the concrete moral challenges of their communities, using the cultural, social and intellectual resources available at the time. It was only through later theological systematization that these teachings were elevated to the status of a universal and absolute morality. In doing so, theologians projected a claim to timeless authority back onto figures who themselves never asserted such finality. This retrospective construction not only obscures the historical development of moral thought but also hinders the recognition of morality as a dynamic process that continues to unfold.

In Muslim theology—particularly in kalām with regard to the image of the Prophet and in uṣūl al-fiqh with regard to his function and actions—his example was generally reduced to a model for imitation. While some scholars drew more nuanced distinctions and acknowledged that not all of the Prophet’s actions were binding or imitable, these distinctions were applied inconsistently. In the end, the dominant view across the tradition remained that the Prophet’s sayings and actions represented universal sources of norms, to be followed as closely as possible.

One could understand following the Prophet not as the mere replication of his actions but as an effort to internalize his approach to life’s challenges—his revolutionary spirit, his dedication to justice, and his pursuit of a just community, even when his efforts did not always succeed. Precisely this imperfection renders the prophetic figures compelling. From this perspective, the Prophet and the Sunnah need not be reduced to a fixed corpus of sayings and deeds but can be approached as the expression of a deeper existential orientation: a striving toward God, a search for answers to universal questions, a reformative energy that reshapes society, and a pursuit of justice that transcends historical forms. The Prophet’s concrete words and actions thus belong primarily to his own context and to the lived reality of his first community, while for later generations their significance lies less in literal replication—or in their constant interpretation and extension through analogical reasoning—than in the horizon they open: the striving itself, the will to transform, the orientation toward truth and justice.

This approach also differs fundamentally from the well-known maqāṣid framework. While the maqāṣid theorists move beyond the surface of legal texts by inquiring into the purposes and rationalities behind revealed norms, they nevertheless remain bound to the normative framework itself. The perspective suggested here goes further: it seeks to overcome the fixation on normative sayings and actions altogether. It understands the Sunnah not as a closed catalog of past deeds but as a living orientation—an invitation to continually re-enact the prophetic striving toward God, reform, and justice in ever new historical circumstances.2

Such an alternative view becomes especially significant when compared with traditional theology, which ultimately idealized the Prophet’s image. In the dominant tradition (post-classical Sunnism and Shiism), he was regarded as faultless—or, if he erred, as immediately corrected by God. This reflects a paternalistic conception of God that underlies both kalām and the fiqh: the assumption that everything the Prophet did was correct, not only for the people of the seventh century but equally for those of the twenty-first. From this perspective, it was expected that every possible question must have an answer in the Qur’an or in the Prophet’s practice, and where none was found, analogies and other hermeneutical tools were employed until the text was interpreted as if it were saying something—in reality, it was forced to say what it never actually said, simply because everything had to be traced back to God and the Prophet, a premise that permeates the entire fiqh and a rule the fuqahā themselves had constructed.

As a result, when contemporary discussions touch upon sensitive topics such as sexual relations with enslaved women or the minimum age for marriage, they often provoke apologetic panic—precisely because such debates expose the fragility of the theological premises on which the tradition rests. For within this traditional framework, it means that God witnessed the Prophet possessing slaves, God witnessed men marrying minors, God witnessed enslaved women being forced into sexual relations against their will—and yet did not forbid it, did not reveal a prohibition, and did not reprimand the Prophet’s community for such practices. Here, then, lies the fundamental problem of a traditional understanding of the Sunnah, of the role of the Prophet, and indeed of prophecy itself: what it is supposed to mean, and how it can be understood in light of such realities.

Here, once again, the need for another perspective becomes evident. One can emphasize the humanity of the Prophet and recognize that his relationship with God was not one of constant divine control, but one of freedom and gradual development. God allows human beings—including prophets—to make mistakes, to be children of their time, and to unfold gradually within their historical context. Many of these actions are no longer justifiable from today’s standpoint. Yet this does not render the Prophet or his community “bad,” but rather human beings of their era. The solution, therefore, is not to force new interpretations of the texts in order to preserve an idealized image of the Prophet. Instead, it lies in overcoming the text, moving beyond it—recognizing the Prophet’s practice as that of a man who lived in the seventh century, in a society that is no longer ours.

Following his message in this context does not mean replicating his life in detail or treating every aspect of his existence as a foundation for normative thinking. Instead, the focus should be on the core principles of his message—particularly monotheism and the commandment to do good.

The definition of monotheism was extremely diverse in the Muslim tradition. This has given rise to very different conceptions of God and discourses, some of which differ fundamentally from one another—whether among the kalām scholars, the philosophers, the hadith scholars, the Sufis, or the ordinary believers in lived religion.

However, this diversity did not exist in the same way for “good action”. The fiqh discourse dominated theology on this point. Plurality was only conceivable within the rules of the game set by the fuqaha, which included premises that were not clearly defined either in the Qur’an or in the Prophet’s practice. These include, for example, the universalization of the text, the assumption that the Prophet’s actions are authoritative for all times, and the idea of his infallibility. Likewise, the expectation that every question must be answered primarily in or through the text—often using all possible philological and hermeneutical means. And, above all, the idea that God will judge us according to precisely the standards of the fuqahāʾ.

Overcoming the text or moving beyond the text—in this case, the normative passages in the Qur’an or the Hadith—does not mean declaring the text obsolete but rather acknowledging its limitations. It means leaving the text as it is out of respect, shielding it from constant reinterpretation and the projection of modern concepts onto it. This approach requires the courage to take responsibility for one’s own faith and theological position without relying exclusively on the text as an absolute authority.

7. Illegal Sex Beyond Traditional Sexual Morality: A Re-Evaluation of the Concept of Illegal Sex

Historically, following the agrarian revolution, the regulation of sexuality has always been closely linked to social, economic, and legal frameworks. While pre-modern societies considered marriage and other institutionalized forms of cohabitation as central criteria for the legitimacy of sexual relationships, these structures have evolved over time (Fisher 2017; Coontz 2006). In particular, the modern constitutional state and the welfare state have, in many ways, rendered the original functions of these norms obsolete.

The rule of law guarantees individual rights and protects against arbitrariness. It regulates questions of descent independently of family or religious structures and ensures that children’s rights, inheritance claims and maintenance obligations are safeguarded by a legal framework. Whereas in pre-modern societies, marriage or kinship structures were the central authority for regulating these issues, today the state assumes this function.

The welfare state has also dissolved the economic dependencies that previously formed the basis for the strict standardization of sexual relationships. In pre-modern societies, women were often economically dependent on husbands or male relatives. Men were also responsible for their offspring and for providing for the entire extended family or tribe. This interdependence meant that sexuality was strictly regulated in order to ensure social and economic stability.

Today, by contrast, individuals are largely economically independent, at least in large parts of the world, thanks to education, employment, and social security systems. This is particularly the case in societies in Western Europe and North America. At the same time, the welfare state guarantees maintenance payments and social support for children regardless of the parents’ relationship status and enforces the rights of children, even against parents unwilling to assume responsibility—a significant shift from earlier times, when such rights were only possible within the framework of marriage. This eliminates another central argument for the restriction of sexual behavior.

In addition, modern medical technologies, especially DNA tests, make it possible to establish paternity beyond doubt, which is even more certain than any contract. The former uncertainty about parentage and succession, which, as we will see, was cited by scholars as one of the main reasons for the strict regulation of sexual relationships, therefore no longer exists.

In pre-modern societies, the regulation of sexuality was closely tied to securing lineages, inheritance rights, and economic stability. Marriage—or other forms of institutionalized sexual relationships—did not primarily serve moral purposes but rather functioned as a means of maintaining social order (Fisher 2017; Ryan and Jetha 2011). This is particularly evident in Muslim legal discourse, where in addition to nikāḥ (marriage), concubinage was also considered a legally recognized form of sexual intercourse.

This makes it clear that the category of zinā cannot simply be equated with all sexual activity outside or before nikāḥ. Rather, zinā specifically refers to “illegitimate sexual intercourse,” as defined within the legal and social frameworks of the time. The question that now arises is why sexual relations with a woman with whom one has neither a nikāḥ contract nor ownership are considered zinā?

Scholars such as ar-Rāzī (d. 1209), dealt with the question of why zinā is considered something abominable (fāḥiša) and was therefore forbidden. In his commentary on the Qur’an, he writes an interesting passage from which I would like to quote at length: “And know that people are divided as to whether—when God, exalted is He, commands something or forbids something—it can be said that He does so because of a reason due to Him or not. Those who recognize the rational distinction between good and evil say that this is the case. However, those who deny this distinction say that this is not the case. The proponents of the rational distinction between good and evil base their view on the following Qur’anic verse (Qur’an 17:32). They say that God, exalted is He, has forbidden illegitimate sex (zinā) and has justified this prohibition on the grounds that it is an abomination (fāḥiša). Now, it cannot be that the abomination of illegitimate sex is merely based on the fact that it is forbidden, for otherwise this would mean that a thing is justified by itself—which is impossible. Consequently, it must be said that its abomination is an intrinsic property that arises from the fact that it is zinā. It follows that things are good or bad because of reasons inherent in them. Likewise, it follows that the divine prohibition is based on these inherent properties of things. This argument is plausible. However, it would be even more accurate to say that the property of a thing to be intrinsically useful or harmful is something that is inherent in its own nature and is not first determined by divine law. For the intake of suitable food is inherently beneficial, while painful blows are inherently harmful. These are facts that are grasped by the mind and not by divine law. If this is established, then we say: The commandments of God, exalted is He, are based on promoting the welfare of the world both in this life and in the Hereafter. This is the outwardly obvious statement, but it contains tremendous problems and profound investigations that we ask God for success in overcoming. If you have understood this, we say: Illegitimate sex (zinā) includes various kinds of harms. The first harm is the mixing and confusion of lineages. The person then does not know whether the child born to the adulteress is his or someone else’s, so he does not take care of its upbringing and does not make any further effort to raise it. This leads to the loss of the children, which in turn leads to the extinction of the offspring and the ruin of the world. The second harm is that if there is no legitimate reason why a certain man should be closer to a certain woman than another, the only way to obtain this privilege would be through violence and fighting. This would lead to the opening of the gates of chaos, disorder and wars.” (Ar-Rāzī 1981, vol. 20, p. 199).

That one of the reasons—or more precisely, one of the wisdoms and finalities—of the prohibition of illegitimate sexual intercourse is to prevent the intermingling of offspring as well as to avoid ambiguity in the lineage is also mentioned by other scholars, such as al-Qarāfī (d. 1284) (Al-Qarāfī 1994, vol. 4, p. 288).

I am aware that these scholars did not consider this wisdom (ḥikma) to be the actual reason (ʿilla). However, there is a view in uṣūl al-fiqh that norms can be justified not only by their ratio legis, but also by their finality—a position that ar-Rāzī, for example, advocates (Ar-Rāzī 2000, vol. 5, p. 287). If the finality of a norm is no longer given, the norm loses its validity or relevance. The finality of the prohibition of zinā was to avoid uncertainty regarding paternity and to prevent the loss of rights that could arise if sexual intercourse took place outside the institution of nikāḥ (marriage). If it is shown that this original finality no longer applies, the former prohibition could either be lifted or, as I argue, the term “illegitimate sexual intercourse” could be redefined in our current context.

The argument that we read in ar-Rāzī, among others, is not only evident in the Muslim tradition, but also in the development of sexual norms in other cultures. Anthropological and evolutionary psychological studies show that many pre-modern societies developed strict rules to control sexuality in order to ensure social order (Ryan and Jetha 2011; Borneman 2015).

In this context, a meta-question arises that theology is expected to address: Do norms—specifically in the realm of sexual morality—create their own reality, or do they refer to an already existing reality and seek to regulate it as justly as possible? More concretely, this means: If norms permit sexual relations only with a wife or an enslaved woman, could this lead to a society in which only these two forms are socially accepted? Or are these norms rather a response to an existing social reality, without fundamentally ruling out the possibility that other constellations might also be considered legitimate contexts for sexual relations? Muslim theology and its traditional sexual morality emerged in a society shaped by an agrarian context. This structure had existed for thousands of years and continued for at least another millennium after the appearance of the Prophet. Since no radical societal changes occurred during this period, the illusion arose that institutions such as nikāḥ (marriage) and slavery—and thus sexual relations within these frameworks—were the only legitimate forms of cohabitation.

Against this background, the question arises: What happens when new relationship models emerge in our time that were unknown in the premodern agrarian societies of the past? One example is the widely practiced form of a committed relationship today that is not formally registered as a marriage but nonetheless fulfills all the conditions of a partnership—and even most of the requirements of the nikāḥ contract. These include, for instance, mutual consent and public recognition of the relationship.

If two people live in a state where all individuals are equal before the law and where the rights of men, women, and children are protected—regardless of their family structure or the circumstances of a child’s conception—there is little reason to consider their relationship illegitimate.

First, they are engaged in a consensual relationship and take responsibility for one another. Second, their relationship, at least in an ideal modern context, is not based on social or economic dependence but rather on personal autonomy. Third, if children are born from this relationship, they are legally protected and enjoy the same rights as children from registered marriages. Fourth, and most importantly, such a relationship is not considered illegal by society and state.

This last point is particularly crucial in determining whether a relationship is seen as legitimate or illegitimate. Throughout history—whether in Muslim sexual morality, Christian traditions, or other cultural contexts—what was considered objectionable was often not only certain relationships or practices explicitly condemned in religious texts but also those that were socially stigmatized. I would even argue that religions are deeply influenced by the prevailing cultural and societal norms of their time, even when they seek to intervene and regulate society.

This brings us to an important point highlighted by Kevin Reinhart: the significance of the term maʿrūf, meaning what is commonly known and accepted (Reinhart 2017).

The Qur’ān employs the term maʿrūf—literally “what is commonly recognized”—thirty-nine times, almost all in Medina-period passages, yet never defines it with precision. Kevin Reinhart’s close reading shows that this deliberate vagueness forces listeners to consult the moral knowledge already present in their society: the text instructs believers to “enjoin the maʿrūf” without spelling out what, obliging them to identify the content through reasoned deliberation and prevailing custom (Reinhart 2017).

In pre-modern societies, relationships between unmarried individuals as we understand them today were neither institutionally established nor socially accepted. Encounters outside marriage were kept secret as clandestine romances or simply ignored by the wider community. Sexual relations with enslaved women were an exception, yet concubinage was less a mutual relationship than a form of exploitation—nonetheless, that arrangement counted as maʿrūf for its time. The crucial point is that maʿrūf is not a fixed concept: what a society recognizes as acceptable serves as an important normative standard. This fact is often overlooked when later jurists transformed historically conditioned social practices from the 7th and 8th centuries of a particular group of Muslims (each school of law pursued a very selective approach here) into seemingly timeless law.

Because the Qur’ān never states how maʿrūf is to be determined, the term fulfills two pivotal ethical functions. Openness and adaptability: its content can evolve as collective moral insight grows—just as today’s near-universal Muslim rejection of slavery reflects a new consensus on human dignity.

Maʿrūf provides a criterion for distinguishing legitimate from illegitimate practices without freezing seventh-century social arrangements (Reinhart 2017). Where once maʿrūf encompassed hierarchical marriage or concubinage, contemporary societies may now recognize informed consent, equal agency, and personal dignity as the “known good,” relegating acts that violate autonomy (such as sex with enslaved or under-age persons) permanently to the realm of munkar, That is, what is recognized as morally reprehensible in a particular socio-cultural context.

For a modern Muslim sexual ethic, this means the classical nikāḥ framework represents only one historical embodiment of maʿrūf. When present-day communities regard mutual consent, parity, and bodily integrity as self-evident goods, relationships that honor these principles—whether formalized by a contract or not—can credibly be deemed as maʿrūf. At the same time, the maʿrūf/munkar dichotomy offers a basis for rejecting any conduct, old or new, that infringes autonomy and dignity. Thus maʿrūf functions as a bridge between revelation and evolving moral understanding, enabling a shift toward a Muslim sexual ethic grounded in contemporary notions of freedom and human worth.

The reason I emphasize the aspect of sexual relations with an enslaved woman so strongly in this text lies in a central premise on which my subsequent argumentation is built.

If we agree today that sexual relations with an enslaved woman are no longer acceptable and that slavery has been abolished, this means that a norm once legitimized by the Qur’an, the Sunna, and the consensus of all legal schools is now considered forbidden by Muslims—at least on the grounds that slavery no longer exists.3 No one would seriously consider reintroducing slavery or deeming it permissible simply because it was once religiously legitimized—unless they belong to an extremist organization like ISIS.

The very theological reasoning that leads us to say that sexual relations with an enslaved woman are no longer permissible today—despite clear texts and unequivocal scholarly consensus—can likewise lead us to recognize new forms of relationships. These are relationships that are not mentioned in the Qur’an, the Sunna, or by early scholars, and that did not exist in premodern societies, yet they are now an undeniable part of our reality.

These include long-term relationships outside marriage, which are deeply rooted in modern societies. The same principle that allows us to recognize that former norms are no longer valid can also lead us to recognize that these new forms of relationship are legitimate and acceptable.

The criterion for this assessment is not the text itself, as it does not address such contexts. We must refrain from retroactively projecting justifications for current social realities onto the text. Instead, it must be acknowledged that the text is silent on these contexts, in fact that it is not even aware of them.

Rather, we must turn to other principles to determine whether these relationships are legitimate, for instance, the right to sexual autonomy, the protection of those involved, or the preservation of human dignity.

In particular, sexual autonomy provides an ethical standard that considers the changed social conditions. According to this principle, a sexual relationship is legitimate if it is based on consent, equality, and mutual respect. The decisive factor is not whether it takes place within a marriage, but whether it respects the autonomy of the individuals involved and does not infringe upon the rights of third parties.

This leads to a fundamental reassessment of what should be considered illegitimate sexual intercourse. Consensual sex between adults can no longer be deemed illegitimate per se, as the original social reasons for its restriction no longer exist. Sexual acts that disregard sexual autonomy are morally unacceptable, regardless of whether they occur within or outside of marriage. This means that even previously tolerated practices, such as marital rape or child marriages, must now be classified theologically as illegitimate sex.

8. Conclusions

This paper examined specific aspects of traditional Muslim sexual morality, focusing in particular on the definitions of nikāḥ and the permissibility of sexual relations with enslaved women and minors. The goal was to demonstrate that key elements of the traditional framework are ethically indefensible today. These examples were not selected at random; rather, they represent central, legally sanctioned forms of sexual relationships within classical Muslim theology and jurisprudence. They also highlight how traditional norms often prioritized male sexual access while sidelining the concepts of consent, mutuality, and bodily autonomy.

By analyzing these cases, the study aimed to uncover more than just isolated ethical concerns. It sought to expose the underlying structural logic that shaped traditional sexual morality, a logic grounded in patriarchal assumptions and the socio-legal realities of pre-modern agrarian societies. While these norms were once embedded within a coherent legal-theological system, they cannot withstand contemporary ethical scrutiny, particularly when evaluated against the standards of autonomy, equality, and human dignity.

As a constructive alternative, the paper proposed a methodological approach termed overcoming the text. This approach does not attempt to reinterpret ethically problematic norms in a more favorable light, nor does it seek to deny or obscure their existence. Instead, it begins with the honest recognition that the Qur’an and other foundational texts emerged within a specific historical context. These texts reflect the worldview and anthropological assumptions of seventh-century Arabian society and thus cannot be presumed to hold universal moral authority.

Efforts to uphold the tradition’s authority through selective reinterpretation or apologetic denial of these norms may offer psychological or communal reassurance, but they come at the expense of moral clarity and intellectual honesty. Such strategies ultimately defer the necessary theological task of confronting the ethical implications of the tradition.

In contrast, concepts like maʿrūf (the socially recognized good) and sexual autonomy provide a more viable ethical framework. These concepts align more closely with contemporary human rights discourses and lived experiences, and they open up space for moral reasoning that is not wholly dependent on textual validation. While maʿrūf historically derived its content from prevailing social conventions, its openness makes it a dynamic ethical category, capable of evolving through collective moral insight. Similarly, sexual autonomy foregrounds the principles of consent, equality, and self-determination, values that are indispensable to any ethical system committed to human dignity.

Yet, any attempt to rethink Muslim sexual morality cannot remain confined to theoretical theological or legal debates. It must also address the lived realities of Muslim communities, where remnants of traditional norms continue to exert a profound social and psychological impact. Among these is the stigmatization of women who have had multiple relationships, often subjected to defamation and moral judgment in ways men rarely experience. The right to explore one’s sexuality, to form and dissolve relationships, and even to fail without being publicly shamed is still unequally distributed.

Moreover, notions of honor and shame, tightly bound to female sexuality, continue to reproduce oppressive structures that limit women’s autonomy and can even lead to deep crises of faith. A renewed Muslim sexual ethic, therefore, must not only move beyond the textual premises of the past but also confront these cultural and communal patterns head-on. Only by dismantling both the theological and the social mechanisms that restrict autonomy can an ethic emerge that is truly committed to justice, dignity, and human flourishing.