Homosexuality in Islamic Law PDF

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Homosexuality: Islamic Law
Islamic law deals with homosexuality under the category of liwÁÔ/lÙÔiyya, a vice attributed in
the Qur’Án (7:81-2; 26:165; 27:55; 29:29) to the inhabitants of Sodom. The Qur’Án does not
specify the exact nature of the acts of the "people of Lot" (qawm LÙÔ), but Muslim jurists as a
rule interpret liwÁÔ as anal intercourse, or sodomy. The jurists conceive of liwÁÔ as a type of
action, not as a fixed sexual identity. Acts of lesbianism (saÎq/siÎÁq/musÁÎaqa) receive
somewhat less attention in the literature, as also historical information about the practice of
saÎq is scarce.
The Qur’Án does not prescribe a particular punishment for liwÁÔ. In Sunn! Islam, the
strongest textual support for punishing sodomy is 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"
(Tirmidh!, Sunan, ÍudÙd 24; Ibn MÁja, Sunan, ÍudÙd 12; AbÙ DÁwÙd, Sunan, ÍudÙd 28; Ibn
Íanbal, Musnad, I, 269). However, the authenticity of this tradition is disputed (most notably
by the Íanaf!s, cf. Ibn al-HumÁm, FatÎ al-qad!r, ed. 1938, V, 264). Other relevant traditions
include: "Stone the one who is on top and the one who is below!" (Ibn MÁja, Sunan, ÍudÙd
12); "If a man penetrates another man they are fornicators" (Bayhaq!, al-Sunan al-kubrÁ, ed.
M.‘A. ‘AÔÔÁ, VIII, 233). Similary, a Îad!th subsumes saÎq under the category of fornication
(zinÁ). However, these latter traditions are considered to be even less well-attested than the first
one. In Sh!‘! law, ‘Al!, the first of the imÁms, reportedly expressed the view that if someone
deserved to be stoned twice, it would be the sodomite.
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Most schools of law base punishment of the sodomite on the assumption that sodomy is
to be analogized to the offence of fornication (zinÁ). Accordingly, only a muÎÒan sodomite,
that is, one who once consummated a legally valid marriage, is liable to death by stoning; the
sodomite who is not muÎÒan receives one hundred lashes (fifty for the slave). The ShÁfi‘!s
elaborate that the passive, penetrated partner must not be considered under the aspect of iÎÒÁn
and therefore is liable only to lashing. However, some ShÁfi‘!s, a majority of modern-day
Íanbal!s, and all MÁlik!s insist on the validity of the "kill both the active and the passive
partner"-tradition and therefore call for unconditional stoning. Also the ImÁm! Sh!‘!s prescribe
the death penalty regardless of marital status. Sh!‘! law is especially harsh, also threatening
other homosexual acts short of anal penetration (for example, takhf!dh, or intercourse between
the thighs) with execution (MunÔazir!, ÍudÙd, 144f.). It should be noted, however, that the
rules of evidence for zinÁ are strict to the degree of making condemnation of the sodomite
extremely difficult, or almost impossible, except in the case of willfull confession (see Crime
and Punishment; Procedure).
The Íanaf! school of law, the official school of the Ottoman empire, differs from the
other schools in significant respects. One of the Íanaf!s' principles in legal theory (uÒÙl al-
fiqh) is the rejection of analogical extension of the divinely ordained punishments (Îadd, pl.
ÎudÙd). This is on the basis of the Prophetic injunction to "ward off Îadd punishments on the
strength of doubts" (Ibn MÁja, Sunan, ÍudÙd 5). Since analogy constitutes a mode of reasoning
that yields only probable results, but never certain knowledge (‘ilm yaq!n!), the Íanaf!s judge
that sodomy must not be punished in analogy to fornication, which counts as one of the Îadd
offences. However, the Íanaf!s discuss whether liwÁÔ can be thought to be a fortiori implied
(bi-Ôar!qat al-dalÁla) in the concept of zinÁ. While some Íanaf!s, following the early
2
authorities AbÙ YÙsuf (d. 182/798) and al-ShaybÁn! (d. 189/805), answer this question in the
affirmative, a majority rejects the notion, arguing that liwÁÔ is different from zinÁ because (1)
the term "fornication" refers exclusively to forbidden vaginal intercourse with a woman
(KÁsÁn!, BadÁ’i‘ al-ÒanÁ’i‘, VII, 33); (2) man's "natural desire" (al-mushtahÁ Ôab‘an) is
directed towards the vagina, never the anus; (3) while in fornication, initiative is with both
partners, in sodomy only the active partner solicits the act; (4) unlike fornication, sodomy is
devoid of the danger of confusion of lineages.
The Íanaf!s conclude that sodomy is punishable only by the (usually) less severe
"discretionary punishment" (ta‘z!r) of the judge. Ta‘z!r is a category in Islamic criminal law
that is notoriously difficult to define. Arguably, ta‘z!r is applied only when an otherwise
tolerated vice is carried into the public arena (see Privacy in Islamic Law). An influential
11th/17th-century collection of legal responsa (fatÁwÁ, sg. fatwÁ) stipulates that sodomites must
be punished with ta‘z!r if they come to the attention of the authorities repeatedly (al-FatÁwÁ
al-"Álamg!riyya, ed. al-Maktaba al-Maymaniyya, II, 150:26)—that is, if they "come out". As
with other private sins, acts of sodomy perpetrated inside the house carry no legal weight: If a
landlord discovers that his tenant engages in sodomy within the confines of the house, he has
no right to expel him (ibid., IV, 463:11). Ta‘z!r punishments for sodomites, as is related from
the Prophet's companions (ÒaÎÁba), include burning, throwing from the highest building in
town, imprisonment, banishment and lashing. Historical examples of such practices can
sometimes be found in ‘AbbÁsid, MamlÙk and Ottoman chronicles.
The death penalty remains the maximum punishment for sodomy in the penal codes of
Saudi Arabia, the United Arab Emirates, Yemen, Mauritania, Sudan, Nigeria (in the shar!‘a
courts) and Iran. The penal codes of most other Islamic countries speak of imprisonment up to
3
three, five or fifteen years. The Iranian Penal Code of 30 July 1991 (§§ 138-165) is
representative of the most severe trends within the Sh!‘! tradition, stipulating execution for
liwÁÔ and for repeated takhf!dh, and ta‘z!r for kissing and lying under the same sheet (al-ijtimÁ‘
taÎta izÁrin wÁÎid).
Bibliography:
El-Rouayheb, Khaled. Before Homosexuality in the Arab-Islamic World, 1500-1800. Chicago:
University of Chicago Press, 2005
al-KÁsÁn!, ‘AlÁ’ al-D!n AbÙ Bakr b. Mas‘Ùd (d. 587/1189). BadÁ#i" al-ÒanÁ#i‘ f! tart!b al-
sharÁ’i‘. Cairo: al-MaÔba‘ah al-JamÁliyya, 1910. Repr. Beirut: DÁr al-KitÁb al-‘Arab!,
1982. Vol. VII, pp. 33-35
MunÔazir!, Íusayn ‘Al!. ÍudÙd f! mabÁÎith al-zinÁ wa-l-liwÁÔ wa-l-ÒaÎq wa-l-qiyÁda. Qum:
DÁr al-Fikr, [198-]
Schmitt, Arno. "LiwÁÔ im Fiqh: Männliche Homosexualität?" Journal of Arabic and Islamic
Studies 4 (2001-2), pp. 49-110
Christian Lange
Harvard University

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958/1000

Homosexuality: Islamic Law

action, not as a fixed sexual identity. Acts of lesbianism (saÎq/siÎÁq/musÁÎaqa) receive

deserved to be stoned twice, it would be the sodomite.

to be analogized to the offence of fornication (zinÁ). Accordingly, only a muÎÒan sodomite,

and Punishment; Procedure).

devoid of the danger of confusion of lineages.

sometimes be found in ‘AbbÁsid, MamlÙk and Ottoman chronicles.

taÎta izÁrin wÁÎid).

El-Rouayheb, Khaled. Before Homosexuality in the Arab-Islamic World, 1500-1800. Chicago:

University of Chicago Press, 2005

1982. Vol. VII, pp. 33-35

DÁr al-Fikr, [198-]

Studies 4 (2001-2), pp. 49-110

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