Before Homosexuality in the Arab-Islamic World, 1500-1800 (49 page)
shāfi‘ī
Followers of the Shāfi‘ī school of law were predominant in Syria, Lower Egypt, Western Arabia (the Hijaz), and amongst the Sunnīs of Iraq.
41
The school considered
liwāṭ
a variant or subtype of
zinā,
but the punishment prescribed was somewhat peculiar. In the case of illicit vaginal intercourse, the offender, if
muḥṣan—
that is, if he or she was in a state of
iḥṣān,
having once consummated a legally valid marriage—was liable to death by stoning. If not
muḥṣan
, the punishment was one hundred lashes (fifty for the slave) and banishment for a year. In the case of anal intercourse, whether between two men or between a man and a woman (who was not his wife or concubine), the punishment was the same, except that the passive, penetrated partner was never liable to stoning. The somewhat peculiar reason given was that the anus is not included in the state of
iḥṣān.
The Egyptian scholar Sulayman al-Bujayrimī (d. 1806) explained that “the state of
iḥṣān
is irrelevant to he who is penetrated in his anus, since there is no conceivable way of licitly inserting a penis into an anus in order for the state of
iḥṣān
to effect a difference in the punishment prescribed for him [the passive partner].”
42
The implicit reasoning seems to have been the following: the state of
iḥṣān
means that one has had access to licit vaginal intercourse, and this should satisfy the normal “phallic-insertive” urges of the man and the “vaginal-receptive” urges of the woman. A man who is
muḥṣan
and yet assumes the “active” or “insertive” role in an illicit sexual relationship is therefore being particularly willful and merits a harsher punishment than he who is not
muḥṣan
. However, in the case of voluntary subjection to anal intercourse, it is questionable whether being
muḥṣan
similarly makes the transgression any more willful and hence more heinous.
Shāfiʿī jurists of the period sometimes mentioned, but did not adopt, a different ruling based on a tradition attributed to the Prophet: “Those whom you find committing the act of the people of Lot, kill the active and the passive partner.” The tradition was considered to be sound (
ṣaḥīḥ
)
,
and was included in three of the six collections of traditions that Sunnī Muslims considered especially authoritative. However, there was no straightforward connection between a particular sound tradition and the ruling of a school of law. Jurists could, for instance, explain away one tradition by appealing to another. They could also press the point that a tradition which would legitimate the execution of Muslims had to be not only sound but also impeccable, and the tradition calling for the execution of the active and passive partner was not included in the two most authoritative collections of
ḥadīth
(by Bukhārī and Muslim).
43
The ruling of the Shāfiʿī school was based partly on analogy with heterosexual fornication, and partly on other traditions. One such tradition had the Prophet Muhammad say: “If a man has intercourse with a man, the two are [to be considered] fornicators,” and another had the third caliph of Islam, ‘Uthmān, acting upon the advice of the Prophet’s son-in-law ʿAlī, ruling that a
Lūṭī
who was not
muḥṣan
was liable to a hundred whip lashes. These latter traditions were, however, not included in a comparably authoritative collection.
44
In the late nineteenth and early twentieth centuries, the Salafī movement in the Islamic world would launch an attack on juridical scholasticism and call for a return to the textual sources of Islamic law. The movement was inspired by earlier scholars such as Ibn Taymiyyah (d. 1328) and his disciple Ibn Qayyim al-Jawziyyah (d. 1350), and the Yemenis Muhammad ibn Ismāʿīl al-Amīr (d. 1768) and Muhammad al-Shawkānī (d. 1834). From the perspective of such “purist” critics of legal scholasticism, the explaining away of the
ḥadīth
calling for the killing of both the active and the passive sodomite was wrong-headed.
45
Ḥanbalī
In the early Ottoman Arab Middle East, the Ḥanbalī school was numerically of less importance than the Shāfiʿī or the Ḥanafī.
46
There were followers of the school in various parts of geographic Syria, such as Baʿalbak, Nablus, and Damascus. However, the major concentration of Ḥanbalīs was in the central Arabian highlands of Najd, which was outside effective Ottoman control and which in the eighteenth century became the center of the revivalist Wahhābī movement. According to the ruling of the school,
liwāṭ
was to be punished as illicit vaginal intercourse: if the offender was a
muḥṣan
the punishment was stoning to death, otherwise one hundred lashes (fifty for a slave). As in the case of the Shāfiʿī school, a more severe punishment based on the above-mentioned tradition was sometimes cited. However, it was again overruled by reference to the same traditions on which the Shāfiʿī ruling rested. All the major Ḥanbalī juridical works produced in the early Ottoman period expounded the rule that
liwāṭ
should be punished as illicit vaginal intercourse. This applies to the works of the Egyptian-based jurists Mar‘ī ibn Yūsuf al-Karmī (d. 1624), Mansur al-Buhūtī (d. 1641), and ʿUthmān al-Najdī (d. 1686), and the Damascene-based Mūsā al-Ḥajjāwī (d. 1560) and ‘Abd al-Qādir al-Taghlibī (d. 1723). The works of these jurists are still considered authoritative by present-day Ḥanbalīs, but some modern scholars of the school, presumably influenced by Ibn Taymiyyah, Ibn Qayyim al-Jawziyyah, and the later Salafī movement, seem to have departed from their ruling concerning
liwāṭ
and to have adopted the more severe punishment, according to which offenders are to be executed regardless of marital status.
47
Mālikī
The Mālikī school was predominant in North Africa and Upper Egypt.
48
It was unique among the four Sunnī schools in distinguishing between the punishment of anal intercourse between a man and a woman (who is not his wife or concubine) and between two men. The former was to be punished as illicit vaginal intercourse, while the latter made the offenders liable to unconditional stoning. Contrary to the assertions of the article “Liwat” in the
Encyclopaedia of Islam,
it was thus the Mālikī school and not the Ḥanbalī that had the most severe ruling on sodomy between men among the Sunnī schools of law, at least in the early Ottoman period.
49
Imāmī Shīʿī
The Imāmī or “Twelver” Shī‘ī school of law was not recognized within the Ottoman Empire.
50
There were nevertheless followers of the school in Iraq, eastern Arabia, Jabal ʿĀmil in what is today southern Lebanon, and (as a clandestine minority) in the Holy Cities of Mecca and Medina. The Imāmī Shīʿī school of law is more severe than even the Mālikī school when it comes to
liwāṭ.
It prescribes the death penalty (the manner of death is left open) for both partners, regardless of marital status. Non-anal intercourse between men, which all the Sunnī schools regard as a minor sin punishable by discretionary chastisement, is considered a major sin and is punishable by one hundred lashes, and four-time offenders are to be executed. Though this was the considered position, Shīʿī jurists often mentioned and discussed even more severe punishments. It is perhaps natural to ask why the Shīʿī school of law is more severe on this point than the Sunnī schools. It is, however, difficult to answer such a question. Shīʿī jurists, like their Sunnī counterparts, simply appealed to the opinions of previous jurists of their school, and to the traditions they recognized as authoritative. However, simply citing these factors as an explanation of the different rulings is clearly not very satisfying, since this merely invites the further question of why the traditions recognized by the Shīʿī school are more severe than those recognized by the Sunnī schools. In any case, the Shīʿī ruling on
liwāṭ
goes back at least to the thirteenth century, when the scholar al-Muḥaqqiq al-Ḥillī (d. 1277) composed the influential law-manual
Sharāʾiʿ al-Islām.
To pursue the origins of the comparative severity of the rulings is thus well beyond the scope of the present study.
The cited rulings of authoritative Islamic jurists on
liwāṭ
offer a corrective to the view, expressed for instance by V. Bullough in his
Sexual Variance in Society and History,
that “Islam” regards homosexual sodomy as a less serious crime than heterosexual fornication, and that the punishments it lays down for the activity are “ambiguous.”
51
Bullough’s opinion seems to have been based on a few translated manuals of Ḥanafī law, and he supported it by claiming that the only passage in the Qur‘an which could be interpreted as specifying the punishment for homosexual conduct was: “If two of you commit it, then hurt them both; but if they turn again and amend, leave them alone, verily, God is easily turned, compassionate” (4:16). The phrase “the two of you” translates the Arabic
al-ladhān,
which is the dual masculine form of the relative pronoun. In the immediately preceding verse (4:15), the Qur’an speaks of “those of your women who commit adultery.” This has led some Islamic commentators to interpret Qur‘an 4:15 as referring to sexual intercourse between two women, and Qur’an 4:16 to sexual intercourse between two men. Bullough pointed out that the stipulated sentence seems to be both ambiguous and mild, repentance on the part of the perpetrators apparently relieving them of punishment. However, the Qurʾanic passage he invoked was simply not considered by Islamic scholars to be the basis for legal opinions on the punishment for sodomy. First, as Bullough himself acknowledged, not all scholars understood the verse as applying to homosexual intercourse. In fact, even Ḥanafī commentators, whom one might expect to have exploited the verse in defense of their school’s peculiar ruling on
liwāṭ,
interpreted the verse as applying to fornication between a man and a woman.
52
Second, even the Qurʾanic commentators who did hold that the verse originally applied to
liwāṭ
quickly added that the punishment mentioned had been abrogated (
mansūkh
) by later passages which called for the flogging or stoning of fornicators, including sodomites.
53
Legal conviction of unlawful intercourse presupposed either voluntary confession, or witnesses to the act of penetration. The minimum number of witnesses required for conviction of
liwāṭ
was four according to the Shāf‘ī, Hanbalī, Mālikī, and Imāmī Shī°ī schools, and two according to the Hanafī school (since it did not regard
liwāt
as a case requiring
hadd.
The witnesses were to be
ʿadl
(“of good character”-that is, not to have committed major sins themselves, or persevered in minor ones), free (as opposed to slaves), male, and Muslim. They had to testify to having seen the genital contact; having seen the couple together under a blanket, for instance, is not enough. It has often been remarked that the stipulated preconditions make conviction for unlawful intercourse practically impossible. However, this was not regarded by jurists as regrettable. According to the Medinese-based scholar ‘Alī al-Qāri’ al-Harawī (d. 1614): “It is a condition that the witnesses [necessary for a conviction of fornication] are four ... and this is because God the Exalted likes [the vices of] his servants to remain concealed, and this is realized by demanding four witnesses, since it is very rare for four people to observe this vice.”
54
Far from encouraging people to denounce their fellows, the jurists explicitly upheld the ideal of “overlooking” or “concealing” (
sat
) the vices of others, except in cases of repeated and unabashed transgressions. The Egyptian scholar and mystic ‘Abd al-Wahhāb al-Shaʿrānī (d. 1565), for example, thanked God that he was able to fulfill his obligation to regularly “conceal” the vices of his fellow Muslims who were not ostentatious in their transgressions of divine law.
55
It was thus generally agreed that witnessing in a case of
zinā
was “contrary to what is most appropriate” (
khilāf al-awlā
).
56
The same applied to confession; it was best for the offender to refrain from publicizing his misdeed, and to repent in silence.
57
The Islamic jurists also operated with the principle that the scope of
hadd
punishments should be reduced as much as possible by evoking the possibility of unintentional transgression caused by a confusing “resemblance” (
shubhah
). The principle was based on a saying attributed to the Prophet: “Ward off
hadd
punishments as much as you can,” or according to a different version, “Ward off
hadd
punishments with resemblances (
shubuhāt
).”
58
Shubhah
could arise, for example, if a slave claimed that he or she had been forced to commit fornication by his or her master; when a recent convert to Islam or a Muslim from an isolated or outlying area claimed that he was unaware of the prohibition; or if a man had sexual intercourse with his father’s female slave, or anal intercourse with his own wife or concubine. A few jurists even held that prostitution constituted a
shubhah,
since paying a woman for sex might be taken to “resemble” the dowry paid by the groom to his bride.
59