Have you heard those modernists who say,
“According to the Sharia, people can engage in whatever sexual behavior they want in the privacy of their homes.”
They want to present a liberally inclined notion of Sharia. This is wrong for several reasons.
First, according to the Sharia, Muslims (and people in general) CANNOT engage in whatever sexual behaviors just because they do so privately. Allah knows what we do, whether in public or private, and the prohobitions and commands of the Sharia related to sex apply regardless of whether others can see you or not. We will all be judged by Allah according to our conformity with His deen, and sinning unrepentantly is not acceptable according to the Sharia just because it is done “in private.”
Now, what people mean when they say, “According to the Sharia, people can engage in whatever sexual behavior they want in the privacy of their homes,” is:
“The Sharia does not allow authorities to police and punish people for the sexual behaviors they engage in the privacy of their own homes.”
This is also false.
If someone is engaged in zina in the privacy of his home and passerbys can see that from the street through a window while walking by, four of them can testify against the zani and the judge would admit that as evidence in order to prosecute. Something like this happened in the time of Umar (radiyAllahu `anhu), where the wind blew a sheet covering a window and witnesses saw zina take place in a person’s home and testified.
What people mean when they make the statement is that authorities cannot spy into people’s homes. This is based on the Quranic command in Surat al-Hujarat: wa la tajassasu. And do not spy.
But if something is apparent, then it doesn’t matter if it’s in the home or not. If someone invites guests to his home and he commits zina in front of them or in view of them, then obviously they can and should report that to authorities (assuming there are four male sane witnesses, there is an Islamic governing authority, etc., etc.).
So to recap, the question of whether the Sharia regulates something is separate from the issue of whether Islamic authorities can police it. Second, the question of whether the Islamic authorities police and adjudicate something does not depend on the modern legal public/private distinction, though the prohibition of spying does come into play depending on the circumstance, which will vary on a case by case basis.
(Regarding the modern legal discourse on privacy, there is a huge body of literature in legal theory on this topic. And even within Western legal thought, very little consensus exists on the boundaries of privacy, the moral basis of privacy, and how the state can balance law enforcement with privacy in light of new technologies and social realities. Uncritically tying the Sharia to this discourse has led to confusion in some explanations and expressions, such as the above.)
The impulse to mitigate the force of the Sharia and its moral authority with respect to people’s sex lives is coming from modern attitudes about freedom and sexual autonomy. We should not play into that discourse with sloppy, unqualified statements that misrepresent the Divine law in an attempt to bridge the gap or appeal to liberal secular intuitions.
Who are we to tell people, essentially: Don’t worry, the Sharia doesn’t apply in the privacy of your home”? Who are we to mitigate, explicitly or implicitly, the threat of Divine wrath? We should be telling people to fear Allah and even if they hide from others, they can’t hide evil deeds from their Creator. Through that fear we can feel shame and seek forgiveness so that Allah will rectify us and turn our evil deeds into good ones:
“Those who repent, believe and do righteous work. For them Allah will replace their evil deeds with good. And ever is Allah Forgiving and Merciful.” (Q 25:70)
NB- In the midst of the #Metoo movement let’s not overlook the inconsistency of those Muslims who try to mitigate and limit the scope of the Sharia and it’s enforcement power when it comes to zina, liwat, etc., i.e., behaviors that are acceptable according to liberalism, but at the same time want to expand the scope of liability, policing, and prosecution when it comes to behaviors that are unacceptable according to liberalism.