Homosexuality in the Mohammedan Law

June 05, 2019

Homosexuality in the Mohammedan Law

In the name of God (who is) the beneficent (and) the merciful

Peace be upon our Master Muhammad and his purified progeny

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Homosexuality was considered to be a paraphilia, a psychological disorder, before the ‘70s. Though the West has changed its perception of same-sex relations after the studies made by APA led the American scientists to believe that homosexuality was a normal sexual orientation practiced by both humans and other animals and could be traced back to the earliest forms of civilization. Islam, as a religion, rejects the permissibility of homosexuality or any other perverted sexual inclination (such as bestiality, pedophilia, incestuous orientations etc.) as only post-marital heterosexual intercourse is the legal form of intercourse in the Mohammedan Law. It has become evident from the major/minor sources of hidayah of Islam that homosexuality is an offensive sin unto the eyes of the Lord and LGBTQ activists who have permitted Muslims to engage in homosexual relations or believe in the permissibility of non-heterosexual encounters in Islam, have erred; there must be not a single shred of doubt that a Muslim is forbidden from engaging in homosexual relation with another person and anyone who preaches otherwise maligns, misinterprets misjudges Islam. A proper Muslim – one who actually wishes to follow the Mohammedan Law – must not uphold or personally practice homosexuality. However, how homosexuals should be treated is indeed a matter of controversy among Muslims. Traditional, fundamental and ultra-conservative Islam believes that homosexuality is a crime that deserves capital punishment in the Mohammedan Law. However, they have been many jurists – and I do emphasize on my usage of the adjective “many” – who have insisted that homosexuality is not a recognized crime in the Mohammedan Law and there is no hadd for its perpetrators. Thus, the Hanafi and the Dhahiri (alternative transliteration: Zahiri) jurists have unanimously agreed that homosexuals don’t deserve capital punishment i.e. gay people cannot be executed by an Islamic government. Moreover, liberal and moderate Muslims have grown quite tolerant of same-sex relations, especially those Muslims who reside in Europe/America. Outspoken Muslim celebrities such as Mehdi Hasan and Jonathan A. C. Brown – though they still consider homosexuality as a sin, an impressible act for Muslims to commit – reject homophobia in all forms and manners and preach that Islam is not a homophobic religion. I believe I don’t need to show koranic instructions to prove that homosexuality is a sin because Qur’an, rephrasing the Bible, has condemned Qaum-e-Lut (“the Lot’s People”) or the residents of Sodom and Gomorrah (however, these cities are not named in Qur’an) for their homosexual engagements and their preference for sodomy instead of vaginal intercourse with their women (Q. 7:80-84). It can be argued that the Lot’s People were not merely condemned and later punished by Allah for their same-sex relations instead they had gone to extreme lengths in order to satisfy their carnal desires. We see that, when Lot was visited by angels incarnated as young males, the Lot’s People demanded that the males must be handed over to them (Q. 12:77-79). It implies rapist tendencies of the Lot’s People. Furthermore, we see that, in ancient times, pederasty was the dominant form of homosexuality-pedophilia in which an adult male sodomized a young male. It must be noted that homosexuality caused the same problems and was abhorred the same way as pedophilia in modern times. But the subject of this paper is not to disprove the permissibility of homosexuality but to show that there is abundant evidence against capital punishment for gay people in the Mohammedan Law.

It must be a matter of quite interest for some and remorse for others that al-Sh’arani (d. 1565 CE) and al-Kawakibi (d. 1685 CE) have spoken of (but mentioned no names) certain jurists who have permitted sodomy (anal sex) with one’s male slaves on the basis that Qur’an allows sexual relations with one’s slaves (however, all Muslim jurists have unanimously agreed that what Qur’an means by ma malakat aymanuhum [Q. 23:6] are slave-girls). While there’s the unique verdict of the Shafi’i scholar Abu Sahl Ahmad al-Abi Wardi (d. 995 CE) that one who sodomizes his male slave doesn’t deserve hadd rather t’azir (discretionary punishment). However, Ibn Hajar al-Haythami asserts that jurists don’t differentiate between sodomy with a free man and sodomy with a male slave.

How the act of liwat (sodomy) must be punished? Maliki scholars prescribe the severest punishment for homosexuality i.e. death by stoning. They argued that the Prophet instructed to execute both the active and the passive partners in an act of sodomy (as recorded by al-Bayhaqi in his Sunan al-Kubra). Hanbali and early major Hanafi scholars (i.e. Shaybani, Abu Yusuf and Tahawi) compared homosexuality with zina (adultery) and prescribed the same punishment for it i.e. an unmarried homosexual will receive lashes and be exiled (temporarily) but a married (muhsan) homosexual will be stoned to death. Shafi’i jurists argued that only the active partner will be killed (with a sword) but the passive partner will receive lashes and be exiled (temporarily). Hanafi scholars believe that sodomy deserves t’azir and not hadd but the ruler of an Islamic government reserves his right to execute a mukarrar (continuous) offender of sodomy in order to main public order. It is believed that this opinion of the Hunafa (Hanafi jurists) has been derived from Abu Hanifah’s own personal opinion regarding sodomy’s legal status (as recorded by Kashmiri).

Some (i.e. Ibn Humam) have argued that, as the Companions of the Prophet had differed regarding the punishment of homosexuality, all the ahadith regarding capital punishment for homosexuality must be rejected as unreliable and unauthentic. However, this opinion as untrue for the Companions had differed indeed but they differed not about executing homosexuals but about the method of execution i.e. stoning, burning or throwing them off from a lofty building. However, there are incidents in which homosexuals received t’azir instead of had for committing the crime of sodomy. Ibn Humam (d. 1457 CE) had concluded after studying the difference of opinion among the Companions regarding the method of execution of homosexuals that all such ahadith attributed to the Prophet were either unreliable or must be interpreted not as a general principle. But Ibn Humam had – and I agree with this theory – derived that sodomy didn’t deserve hadd penalty. Later Hunafa followed the reasoning of Ibn Humam and maintained t’azir penalty for sodomy. I personally believe that the ahadith attributed to the Prophet regarding the execution of those who commit apostasy, homosexuality or incest imply two things:

1) The hadd penalties prescribed in Qur’an and Sunnah represent the maximum form of punishment that can be given to a certain criminal i.e. the penalty for murder is capital punishment in Qur’an but it doesn’t necessarily mean that every murderer can be executed, because he can also pay diyah (blood money) to compensate the victim’s heirs.

2) The hadd penalties are not general in nature rather prescribe capital punishment only when the crime causes public disorder.

3) The Prophet has been quoted declaring (in Sahih al-Bukhari and Sahih al-Muslim) that a Muslim can be executed only in three conditions i.e. (a) if he murders another person, (b) if she commits adultery while married (muhsan) or (c) leaves the Muslim community (major riddah [apostasy]). Qur’an explains (Q. 5:32) that God allowed the right to execute a person only in conditions i.e. when a person kills another one or when a person causes fitnah (mischief). So, in light of these proofs, we can argue that the penalty for sodomy is to counter mischief and the Prophet wasn’t prescribing a general punishment for all homosexuals.

Those jurists who have identified certain flaws in the ahadith regarding the execution of sodomites – some have criticized its narrators and others have defined these ahadith as akhbar-e-wahid (singular reports) – don’t just belong to the Hanafi or the Dhahiri schools rather Ibn Hajar al-‘Asqalani (a Shafi’i jurist) has also, in his Fath al-Bari, admitted that these ahadith are insufficient to provide evidence in favor of the execution of sodomites.

If we refer to the ahadith regarding the execution of sodomites, the most famous one is narrated by Ibn ‘Abbas -> Ikrimah -> ‘Amr ibn Abi ‘Amr. This hadith has been declared sahih by almost all hadith doctors in Islam and the reliability of the narrators is out of question. There is only a slight problem i.e. doctors have doubted whether ‘Amr ibn Abi ‘Amr could be relied upon when he narrates from Ikrimah. Bukhari and Ibn Ma’in have frowned upon his report regarding bestiality i.e. the one ‘Amr narrates from Ikrimah. Al-‘Ijli has also stated that, though ‘Amr’s reliability is beyond question, his report regarding liwat and bestiality is unacceptable and unauthentic. Bukhari even suggested that ‘Amr never heard anything from Ikrimah. Moreover, the hadith regarding sodomy involving ‘Amr loses its credibility – a phenomenon duly noted by Bukhari, Tirmidhi, Abu Da’ud and Tahawi – when compared to another report attributed to Ibn ‘Abbas regarding bestiality. Also, instead of ‘Amr ibn Abi ‘Amr, other narrator such as ‘Abbas ibn Mansur and Da’ud ibn Husayn have also narrated from Ikrimah who narrated from Ibn ‘Abbas that the Prophet instructed to execute sodomites. But Ibn ‘Abbas has been also reported saying:

As we can see, Abu Da’ud believes that ‘Asim’s report contradicts and thus weakens ‘Amr’s report. Ibn ‘Abbas has been also recorded saying, as evident from the narration quoted above, that there is no prescribed punishment for bestiality and, thus, by extent of this report, the hadith regarding the execution of sodomites also weakens and loses its reliability. Moreover, another report suggests:

This tradition also weakens ‘Amr’s report regarding sodomy. However, this method of reasoning has been criticized by al-Bayhaqi who insisted that these anti-‘Amr reports are not stronger in reliability than pro-‘Amr ones.

Suyuti has dedicated a treatise to defend the hadith regarding the execution of sodomies against Ibn Hajar’s criticism of it. One can find Ibn Hajar’s criticism is his Bulugh al-Maram. In Fath al-Bari, Ibn Hajar states that ‘Ali’s report regarding the stoning of the sodomites is weak. Moreover, the status of Ikrimah as a reliable hadith narrator has also been disputed, mainly due to his khariji beliefs and his close ties with the rulers of his time. He is also accused of transmitting lies. The most criticized of his narrations is the famous hadith of Sahih al-Bukhari regarding ‘Ali’s execution of some atheists by burning then which seems quite disturbing because one cannot expect ‘Ali to execute someone by burning when the Companions agreed upon the impermissibility of burning of criminals.

After studying all the ahadith regarding the execution of sodomites, Abu Bakr al-Jassas (d. 981 CE) and Scott Siraj Kugle (alive) reached the same conclusion i.e. these ahadith are not fabrications but they are of solitary/singular nature thus they cannot be relied upon to prescribe capital punishment for the crime of homosexuality; these reports are not reliable enough to show that liwat deserves hadd penalty.

Another explanation for this hadith regarding the execution of those who “commit the act of Lot’s People” that can be presented by those Sunni Muslims who haven’t been convinced that these ahadith are either forgeries or authentic but legally unreliable, will be: The Prophet didn’t prescribe any punishment for sodomy but prescribed hadd penalty for those who imitate the Lot’s People and the Lot’s People were actually male rapists and pedophiles (as most homosexuals were actually child-molesters in ancient times, one might argue, by committing pederasty). This is another explanation suggested by Kugle.

Jonathan A.C. Brown notes that most ahadith describing fanatical penalties for sodomy appear many centuries after the Prophet’s demise. The earliest hadith sources, such as Musannaf ‘Abd al-Razzaq, record reports describing sodomy just like adultery. His report shows that a married (muhsan) sodomite is stoned to death while an unmarried one is lashed and then banished. One can argue that this represents the maximum punishment that can be given to a sodomite and doesn’t necessarily mean that homosexuals deserve capital punishment. In his Musannaf, Abu Bakr ibn Abi Shaybah also records a tradition (Ibn Jurayj -> ‘Ata ibn Abi Rabah) which clarifies that the punishment of a male who arrives in another male is that of a male who arrives illegally in another female.

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