Before Homosexuality in the Arab-Islamic World, 1500-1800 (48 page)

The view that looking at youths was prohibited to adult men was a minority opinion within the Shāfi‘ī school of law, apparently first formulated by the jurist Yaḥā al-Nawawī (d. 1277), and hence often referred to as “the way of al-Nawawī” (
ṭarīqat al-Nawawī).
It was a controversial view, and most Shāfi‘ī scholars seem to have followed “the way of al-Rāfi‘ī,” named after another prominent jurist of the school, ‘Abd al-Karīm al-Rāfi‘ī (d. 1226), who, more conventionally, held that looking at youths was permitted in the absence of lust. Ibn Hajar al-Haytamī and ‘Alwān al-Ḥamawī were two prominent exponents of the position of Nawawī in the early Ottoman period. They were, however, not unique. The Meccan scholar Muhammad ‘Alī ibn ‘Allān (d. 1648), for instance, quoted approvingly the verdict of al-Nawawī:

It is prohibited to look at a beardless boy if he is handsome, whether [the onlooker] fears temptation or not. That is the correct view held by those who examine the question thoroughly ... because he is as a woman, for he is desired as she is desired, and his beauty is similar to a woman’s beauty, and indeed many of them [beardless boys] are more attractive than many women. Indeed they are more worthy of prohibition, since it is easier to gain access to vice in their case than in the case of women.
¹⁵

Similar views were also voiced in the lifetime of ‘Abd al-Ghanī al-Nābulusī (d. 1731), who devoted a virulent polemic to refuting an unnamed contemporary jurist who would prohibit outright looking at beardless youths.
¹⁶Nābulusī insisted that the basic position of religious law as regards looking at humans in general was permission
(ibāḥah)
, and that this general principle should be circumscribed only when there were clear indications in the Qurʾan or Sunnah (i.e., the sayings and doings of the Prophet Muhammad) that something was taboo
(‘awrah),
or when looking was associated with illicit lust. The face of a male youth was, by common consent, not taboo, and hence the proposed prohibition would be based on the second point. The criteria for establishing the presence or absence of lust was, to be sure, a problematic matter, on which jurists themselves did not agree. But, said Nābulusī, in any case no one was in a better position to judge than the onlooker himself, and it was not permissible to claim that one knows whether others look with lust or not. Rather, one was obliged to think well of one’s fellow Muslims unless there was weighty evidence to the contrary. Several jurists, Nābulusī added, had taken to the reprehensible practice of issuing general prohibitions—whether on the question of listening to music, of looking at youths, of drinking coffee, or smoking tobacco—that were not based on sound juridical principles, but merely out of a moralistic conviction that wickedness and depravity was widespread. In fact, Nābulusī specifically mentioned both Ibn Hajar al-Haytamī and ‘Alwān al-Ḥamawī as examples of this kind of scholar.
¹⁷His opinion of them, though concealed beneath outward manifestations of respect, is apparent from his advice to a student who wanted to study some of the works of ‘Alwān al-Ḥamawī with him. Nābulusī advised the student to study the works of Ibn ‘Arabī instead. The works of ‘Alwān al-Ḥamawī, Nābulusī said, with their focus on reprehensible customs and practices, would induce the young student to adopt a disparaging and faultfinding attitude toward his fellow Muslims.
¹⁸

The weakness of the argument of Nābulusī was that it also applied to looking at women. Many jurists held that women’s faces were
not
taboo.
¹⁹Hence, the very same argument used by Nābulusī to establish that looking at beardless youths was in principle permissible would also establish that looking at “foreign” women was in principle permissible. To a majority of scholars at the time, such a conclusion would not have been acceptable. Even within Nābulusī’s own Ḥanafī school of law, which did not regard a woman’s face as taboo, jurists nevertheless asserted that “in the present age,” with the prevalence of immorality and depravity, young women especially were obliged to veil themselves in the presence of men.
²⁰A scholar who wished to maintain the permissibility of looking at youths would have to argue for a basic difference between looking at youths and looking at women. Indeed, Nābulusī alludes to such a difference on more than one occasion: looking at the opposite sex was more likely to give rise to lust than looking at the identical sex; a man’s sexual desire for a woman was “natural” (
ṭabī‘ī)
, whereas his desire for a beardless boy—by implication—was not.
²¹Such statements look deceptively like modern assertions to the effect that “homosexuality” is “unnatural,” and it ought to be remembered that Nābulusī was an outspoken defender of the passionate love of boys, and obviously did not regard sensitivity to the beauty of beardless youths as abnormal. The appeal to nature should be seen within the context of the overall controversy. As in the case of the realist and idealist perspectives on love, both sides in the juridical dispute were appealing to propositions which separately were regarded as truisms, but which were potentially in conflict with one another. On the one hand, it was widely believed that sexual intercourse, and the attraction leading to it, ought in principle to occur between a male and a female, and that sexual attraction or intercourse between men or between women was at variance with the divinely sanctioned order of things. In the juridical literature, it was repeatedly asserted that neither the anus nor the male was created for the purpose of being sexually penetrated. The (false) supposition that homosexual intercourse is unknown among animals, repeatedly heard in Western history from antiquity to the present, was also not foreign to the premodern Middle East. According to Ibn Hajar al-Haytamī: “We do not find a male animal who copulates with his like:”
²²On the other hand, there was an equally widespread conviction that beardless youths posed a temptation to adult men as a whole, and not merely to a small minority of deviants. Perhaps the most striking evidence for this belief is the ruling of the Mālikī school of law concerning minor ritual ablution (
wuḍū’
). One of the items that negate the state of ritual purity and necessitate
wuḍū’
is, according to authoritative manuals of the school, touching with lust the flesh of that “which is normally the object of lust (
mā yushtahā ‘ādatan)”
or that “which normally gives rise to pleasure
(yaltadhdh ṣāḥibuhu bihi ‘ādatan).”
Thus, commentators of the manuals explained, a man would negate his state of ritual purity if he touched with lust the skin of an unrelated woman, but not an animal, a child, a corpse, or another bearded man. Mālikī scholars of the early Ottoman period repeatedly confirmed that a man would negate his state of ritual purity if he touched with lust the skin of a beardless or downy-cheeked youth, since they fell under the category of that “which is normally the object of lust.”
²³

To be sure, it is not logically inconsistent to hold that a phenomenon is “unnatural” and yet common. But by emphasizing one rather than the other of these claims, diametrically opposed positions could be reached on a specific issue. Scholars who wished to prohibit looking at boys emphasized their feminine attractiveness, thus assimilating their case to that of women: “and that is because he is a suspected source of temptation like women”; “because he is a suspected source of temptation, for he is as women when talk is of the beautiful of face and the tender of body.”
²⁴Alternatively, those who insisted that looking at boys was permitted as long as it was not linked to lust emphasized the masculine gender of the boy and thus assimilated him to the bearded adult: “because he is a male similar to the bearded”; “and a man may look at another man, even a handsome beardless youth, except for what is between the navel and the knees.”
²⁵

Most jurists in the early Ottoman period dissented from the view that looking at youths was prohibited. The dominant position, even among Shāfi‘īs, was to permit it in the absence of lust.
²⁶To that extent, the beardless youth was to be treated as an adult male. However, traces of anxiety remained, and the permission was often qualified. Ibn ‘Ābidīn, after discussing the issue of looking at youths and concluding that it is permissible in the absence of lust, nevertheless added that “it is clear that it is more circumspect not to look at all.”
²⁷The Egyptian Ḥanbalī jurist Manṣūr al-Buhūtī (d. 1641) cited the ruling of his school that “it is permissible ... for a man to look at what is not taboo [i.e., what is between the navel and the knees] of another man, even a beardless boy,” but almost immediately added: “but if the beardless boy is beautiful and temptation is to be feared from looking at him, it is not allowed to make a habit of looking at him.”
²⁸The qualifications sometimes explicitly ruled out notions of an aestheticist appreciation of boyish beauty. The Egyptian-based Ḥanbalī scholar Mar‘ī ibn Yūsuf al-Karmī (d. 1624) quoted the prominent and controversial Ibn Taymiyyah (d. 1328) as stating that “he who repeatedly looks or gazes at the beardless boy and says ‘I am not looking with lustʾ is lying.”
²⁹The Egyptian Shāfi‘ī scholars Shams al-Dīn Muḥammad al-Ramlī (d. 1596) and Ibrāhīm al-Bājārī (d. 1860), two representatives of “the way of al-Rāfi‘ī,”both cited a fourteenth-century jurist of their school as saying: “Many people look at the beautiful beardless boy while delighting in his beauty and loving him, and think that they are free from sin since they confine themselves to looking without desiring fornication
(al-fāḥishah),
and they are not free [from sin].”
³⁰In the same vein, the Egyptian Mālikī jurist ‘Abd al-Bāqī al-Zurqānū (d. 1688) quoted an authority of his school as saying: “And they [scholars] have agreed upon the prohibition of looking at him [the beardless boy] with the intention of obtaining pleasure and delighting the eye with his charms.”
³¹Adult men’s interaction with boys was the object of juridical restrictions that were absent in the case of interaction between adult men. The prominent Palestinian jurist Khayr al-Dīn al-Ramhī (d. 1671) opined that a father could force his legally mature son to reside with him, and restrict his freedom of movement, if the son was still a handsome youth (
ghulām ṣabih)
.
³²Several Ḥanafī scholars deemed that it was disapproved
(makrūh)
for a comely beardless or downy-cheeked youth to function as leader (
imām
) of communal prayer.
³³As has been mentioned, the Mālikī school ruled that touching a beardless or downy-cheeked youth with lust negated a man’s state of ritual purity. Shāfi‘ī jurists of the period asserted that, even if looking at boys was not prohibited, touching them or being alone with them was, again by analogy with unrelated women. Thus the Egyptian jurist ‘Alī al-Zayyādī (d. 1615) said: “Being alone with him [the beardless boy] or touching a part of his body is prohibited even according to the way of al-Rāfi‘ī.”
³⁴Mar‘ī ibn Yūsuf al-Karmī cited the opinion that “being alone with, and sleeping next to, a handsome beardless youth is [prohibited] as in the case of a woman.”
³⁵Though it seems to have remained a minority view among jurists, the idea that looking at, and being alone with, a beardless boy was prohibited was influential enough to be reflected in the belles-lettres of the period. One of the “arguments” attributed to the downy-cheeked youth in ‘Alī al-Dabbāgh al-Mīqātī’s literary disputation—discussed in the previous chapter—is that “looking at him [the beardless boy] is prohibited while looking at me is permitted ... being alone with him is prohibited as in the case of the unrelated woman.”
³⁶Indeed, the controversy over looking seems to have been echoed outside scholarly circles. The Aleppine biographer Ibn al-Ḥanbalū mentioned a local maker of
sanbūsak
(i.e., small meat pies) who was “inclined to loving youths, so if it was said to him: Are you a Rāfi‘ī or a Nawawī? he would answer: Rāf‘i.”
³⁷

Liwāṭ
in Islamic Law

The apprehensions concerning looking at, touching, or being alone with women or youths was in large part due to these acts being considered “preliminaries” (
muqaddimāt
) of what was, by common agreement, one of the “major sins” (
kabā’ir
). Fornication (
zinā
) was indeed considered to be inferior only to unbelief (
kufr
or
shirk
) and murder (
qatl
) in gravity. Islamic law treats it as a transgression against “a right of God” (
ḥaqq Allāh
)—as opposed to transgressions against the rights of other humans (
ḥaqq ādamī
)—for which a prescribed punishment, a
ḥadd,
had been revealed in the Qurʾan or the Sunnah.
³⁸In juridical works on positive law (
furū‘
), anal intercourse between men
(liwāṭ)
was invariably discussed within this context. The four acknowledged schools of law in the Ottoman Empire differed somewhat in their assessment of the penalty for
liwāṭ
, and it is therefore appropriate to discuss each of them separately.

Ḥanafī

The Ḥanafī school of law occupied a special position by virtue of being the official school of the Ottoman Empire.
³⁹Predominant in Turkey, the school also had adherents among the Arabic-speaking Sunnī Muslims of the Empire, the majority of whom, however, were Shafi‘ī. Of the four Sunnī schools of law, the Ḥanafī was unique in that it did not consider
liwāṭ
to be a variety of fornication, and thus not liable to
ḥadd
at all. The rationale behind the ruling was in part definitional: the school simply defined
zinā
as vaginal intercourse between two persons legally forbidden to each other. Anal intercourse, between two men or between a man and a woman, was different, argued the jurists of the school, both in that the desire leading to it (usually) came only from the active party, and in that it did not have the same consequences for which
zinā
had been forbidden. Furthermore, the punishment for
zinā
was specified by revelation, while the punishment meted out to
lūṭīs
by the Companions of the Prophet varied: some burned them alive, others threw them off the highest building in the city, others demolished a wall above them, etc. Though such examples suggest a more severe punishment for
liwāṭ
than for
zinā
, the somewhat scholastic conclusion of Ḥanafī jurists was that
liwāṭ
should then be punished by discretionary chastisement (
ta‘zīr
), and this was usually less severe than
ḥadd.
For instance, if chastisement took the form of whipping, the number of lashes should not exceed thirty-nine, which is one less than the lowest number of lashes in a case of
ḥadd.
The form of chastisement was in principle left to the discretion of the presiding judge. The punishment most often suggested by the jurists of the period was whipping and/or imprisonment, with the proviso that repeat offenders could—and according to others should—be put to death. In the various Ottoman codes of law
(qānūn),
which in theory constituted the basis for the rulings of state-appointed judges within the Empire, the punishment for active sodomy tended to be a fine, the heaviness of which depended on the perpetrator’s marital status (married men were punished more severely than unmarried) and his economic condition. Passive sodomy usually merited a discretionary number of whip lashes, and a fine.
⁴⁰

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