The Shariah, Homosexuality & Safeguarding Each Other’s Rights in a Pluralist Society
by Jonathan Brown on 18 June 2016
Jonathan Brown is the Alwaleed bin Talal Chair of Islamic Civilization in the School of Foreign Service at Georgetown University, and he is the Associate Director of the Alwaleed bin Talal Center for Muslim Christian Understanding. He received his BA in History from Georgetown University in 2000 and his doctorate in Near Eastern Languages and Civilizations from the University of Chicago in 2006. Dr. Brown has studied and conducted research in countries such as Egypt, Syria, Turkey, Morocco, Saudi Arabia, Yemen, South Africa, India, Indonesia and Iran.
In recent days there has been much debate over Islam’s position on homosexuality. Anyone who has read any Persian poetry, read a forthright travel guide to the Gulf or heard Pakistanis or Afghans joking knows that same-sex attraction and activity has not been unusual in Muslim societies. A wealth of top quality scholarship has demonstrated that Islam, Muslim societies and the Shariah tradition did not conceive of ‘homosexuality’ as an identity. But they did acknowledge that same-sex attraction occurred, often for ‘natural’ reasons (e.g. it was considered normal for men to be attracted to beardless youths, who shared feminine beauty). It is only specific actions, such as sodomy (in Arabic, Liwat)[1], that show up on the Shariah radar as sins or punishable offenses. It is not same-sex attraction or desires that the Shariah prohibits. It is acting on them.
In the wake of the Orlando shooting, however, Islam’s disapproval of same-sex acts has come under renewed scrutiny. Some critics have argued that any disapproval of homosexuality is homophobic, and that any indulgence of homophobia lays fertile ground for violence against the LGBTQ community. Others have made more specific objections, namely that the death penalty for sodomy (Liwat) in the Shariah creates a particularly slippery slope towards violence against gays. If the Shariah prescribes death for homosexuality, they contend, then wasn’t the Orlando shooter just executing God’s will? Isn’t that a huge problem?
Disagreement over the Punishment for Sodomy in the Shariah
In response, some Muslim scholars have presented arguments that, though certain same-sex actions are prohibited in Islam, there is no death penalty for homosexuality in the Shariah. The problem with this argument, however, is that, far from uncovering a popular misconception about Islam or discovering some long-hidden true teaching of the religion, it simply reproduces millennium old debates within the Shariah tradition. Yes, the main position in the Hanafi school of law for many centuries was that someone convicted of sodomy (which in all the schools required four witnesses to the act of penetration) was not executed but only given a milder punishment or perhaps only disciplined by a judge. But the other three Sunni schools of law did consider sodomy to be a death-penalty offense (at the very least for the active partner). This disagreement exists because of how different schools of thought in the Shariah weighed evidence from the Quran and the Prophet’s precedent and how they interpreted it. For the schools of law that upheld the death penalty for sodomy, their evidence was 1) several Hadiths of the Prophet in which he states that those who commit ‘the act of the people of Lot’ should be killed, the main one being the Hadith of Ibn ‘Abbas[2]; 2) an analogy between sodomy and Zina (heterosexual fornication or adultery), which was often punishable by death; and 3) the rulings of many Companions of the Prophet and other early Muslim scholars. The Hanafi school differed with this position because 1) the school did not permit declaring something to be a Hudud crime (see below) by analogy (sodomy might be analogous to Zina, but God and the Prophetﷺ had commanded Muslims to seek the most minimal possible application of Hudud laws, so extension by analogy was indulging) [3]; 2) Hanafis argued that the Hadiths asserting the death penalty for Liwat were of debatable authenticity[4]; and 3) there was far too much disagreement over the proper punishment for sodomy amongst early Muslim scholars to suggest that death was the clear conclusion.[5]
Respecting the Law of the Land
There is another problem with the ‘no death penalty for homosexuality in Islam’ argument in the context of debate since the Orlando shooting. Although there has been great disagreement amongst Muslim scholars over the appropriate punishment for Liwat in Islam, there has been no disagreement over Liwat being prohibited in Islam.[6] So the objection of critics remains: Islam’s disapproval of same-sex acts is homophobic, and homophobia is a slippery slope towards violence against gays.
Lost in this discussion is something that should be obvious to everyone: your personal morality is not the law, and you don’t take the law into your own hands. Regardless of what law one lives under, it is the job of the recognized organs of justice to apply it. Regardless of how vile you consider an act to be, it is the law of the land that determines if that act is a crime and what its punishment should be.
According to the Shariah, Muslims living in the West (or other non-Muslim states) are essentially visitors from the perspective of the sacred law. The standard definition amongst Muslim scholars for the Abode of Islam (Dar al-Islam) was those lands where the Shariah reigns.[7] Muslims outside that space reside in lands and countries as guests of whatever legal or religious system reigns there. If the law of the land were to prohibit Muslims from carrying out a duty required by the Shariah, such as prayer, or require them to do something clearly forbidden in Islam, such as drinking alcohol, the standard opinion amongst classical Muslim scholars was that Muslims could no longer reside there (a second opinion was that they should remain so that the religion of Islam would not vanish there). Otherwise, Muslims must respect the law of the land. Their decision to reside in those lands represents their agreement to a contract with the governments ruling them. As the Quran commands Muslims, “be true to your agreements” (Quran 5:1), and as the Prophetﷺ taught, “Muslims are bound by the conditions [of their agreements].”[8] The Shariah continues to govern Muslims’ private worship and whatever areas of law the local system leaves open (such as contracts, inheritance and marriage in the US), but Muslims must respect and abide by the restrictions, duties and regulations placed upon them.
'Kill the one who has committed sodomy' & The Rule of Law in the Shariah
How do Muslims reconcile the principle of the rule of law with the commands of their sacred scriptures? The Quran echoes the Bible in its tone regarding justice. ‘A life for a life, an eye for an eye…’ (Quran 5:45) has an immediacy about it, as does the Prophet’s Hadith (contested, as mentioned above) ‘Whoever you find committing the act of the people of Lot, kill the active and passive partners.’ Aren’t commands like this directed at us as individuals?
This question was posed to the most famous scholar of thirteenth-century Cairo (and Damascus, for that matter). Ibn ‘Abd al-Salam was asked whether a person who had committed a grievous crime or mortal sin was allowed to take the law into his own hands and kill himself. The answer was no, ruled the scholar. If the person wants to be punished, he should confess before a judge so that he could be dealt with ‘in the legal manner (‘ala al-wajh al-shar’i).’ Scriptures like the Bible and the Quran address mankind at the level of conceptual default, as individuals unmediated by governments. At that level, Ibn ‘Abd al-Salam explained, it was indeed individuals who sought justice for wrongs done them, who exacted ‘an eye for an eye.’ But, he continued, the Shariah delegated this power and role to governments because of the serious risk of abuse.[9]
This became the standard position of Muslim scholars regarding punishing people for the Hudud crimes as well as for handling crimes like murder. In the Hanbali school (my school), the position has been clear: “For us the principle is delegating the Hudud to the authority (imam), because it is right of God, so it should be delegated to His deputy [on earth].” A later Hanbali scholar explains that this is because enforcing such laws “requires exercising discernment and reason (ijtihad)” to make sure that justice is being done.[10] In the case of murder, the family of the victim has a God given (even natural) right to see justice done and to see the killer punished. But if a family member kills the murderer himself, without permission from the ruler or judge, he can be seriously punished. If someone kills the murderer when the judge has explicitly ordered they not be touched, then the vigilante will themselves be charged with murder. There can be no execution of a murderer, even one whose guilt is known, without permission from the ruling authority (these are examples from the Hanafi and Shafi schools of law).[11] As summed up by the late, great Muslim jurist Wahba al-Zuhayli, “It is an agreed upon principle that applying the punishments of the Hudud and Qisas (eye-for-an-eye crimes) as well as other discretionary punishments falls under the special purview of the authorities (imam).”[12]
by Jonathan Brown on 18 June 2016
Jonathan Brown is the Alwaleed bin Talal Chair of Islamic Civilization in the School of Foreign Service at Georgetown University, and he is the Associate Director of the Alwaleed bin Talal Center for Muslim Christian Understanding. He received his BA in History from Georgetown University in 2000 and his doctorate in Near Eastern Languages and Civilizations from the University of Chicago in 2006. Dr. Brown has studied and conducted research in countries such as Egypt, Syria, Turkey, Morocco, Saudi Arabia, Yemen, South Africa, India, Indonesia and Iran.
In recent days there has been much debate over Islam’s position on homosexuality. Anyone who has read any Persian poetry, read a forthright travel guide to the Gulf or heard Pakistanis or Afghans joking knows that same-sex attraction and activity has not been unusual in Muslim societies. A wealth of top quality scholarship has demonstrated that Islam, Muslim societies and the Shariah tradition did not conceive of ‘homosexuality’ as an identity. But they did acknowledge that same-sex attraction occurred, often for ‘natural’ reasons (e.g. it was considered normal for men to be attracted to beardless youths, who shared feminine beauty). It is only specific actions, such as sodomy (in Arabic, Liwat)[1], that show up on the Shariah radar as sins or punishable offenses. It is not same-sex attraction or desires that the Shariah prohibits. It is acting on them.
In the wake of the Orlando shooting, however, Islam’s disapproval of same-sex acts has come under renewed scrutiny. Some critics have argued that any disapproval of homosexuality is homophobic, and that any indulgence of homophobia lays fertile ground for violence against the LGBTQ community. Others have made more specific objections, namely that the death penalty for sodomy (Liwat) in the Shariah creates a particularly slippery slope towards violence against gays. If the Shariah prescribes death for homosexuality, they contend, then wasn’t the Orlando shooter just executing God’s will? Isn’t that a huge problem?
Disagreement over the Punishment for Sodomy in the Shariah
In response, some Muslim scholars have presented arguments that, though certain same-sex actions are prohibited in Islam, there is no death penalty for homosexuality in the Shariah. The problem with this argument, however, is that, far from uncovering a popular misconception about Islam or discovering some long-hidden true teaching of the religion, it simply reproduces millennium old debates within the Shariah tradition. Yes, the main position in the Hanafi school of law for many centuries was that someone convicted of sodomy (which in all the schools required four witnesses to the act of penetration) was not executed but only given a milder punishment or perhaps only disciplined by a judge. But the other three Sunni schools of law did consider sodomy to be a death-penalty offense (at the very least for the active partner). This disagreement exists because of how different schools of thought in the Shariah weighed evidence from the Quran and the Prophet’s precedent and how they interpreted it. For the schools of law that upheld the death penalty for sodomy, their evidence was 1) several Hadiths of the Prophet in which he states that those who commit ‘the act of the people of Lot’ should be killed, the main one being the Hadith of Ibn ‘Abbas[2]; 2) an analogy between sodomy and Zina (heterosexual fornication or adultery), which was often punishable by death; and 3) the rulings of many Companions of the Prophet and other early Muslim scholars. The Hanafi school differed with this position because 1) the school did not permit declaring something to be a Hudud crime (see below) by analogy (sodomy might be analogous to Zina, but God and the Prophetﷺ had commanded Muslims to seek the most minimal possible application of Hudud laws, so extension by analogy was indulging) [3]; 2) Hanafis argued that the Hadiths asserting the death penalty for Liwat were of debatable authenticity[4]; and 3) there was far too much disagreement over the proper punishment for sodomy amongst early Muslim scholars to suggest that death was the clear conclusion.[5]
Respecting the Law of the Land
There is another problem with the ‘no death penalty for homosexuality in Islam’ argument in the context of debate since the Orlando shooting. Although there has been great disagreement amongst Muslim scholars over the appropriate punishment for Liwat in Islam, there has been no disagreement over Liwat being prohibited in Islam.[6] So the objection of critics remains: Islam’s disapproval of same-sex acts is homophobic, and homophobia is a slippery slope towards violence against gays.
Lost in this discussion is something that should be obvious to everyone: your personal morality is not the law, and you don’t take the law into your own hands. Regardless of what law one lives under, it is the job of the recognized organs of justice to apply it. Regardless of how vile you consider an act to be, it is the law of the land that determines if that act is a crime and what its punishment should be.
According to the Shariah, Muslims living in the West (or other non-Muslim states) are essentially visitors from the perspective of the sacred law. The standard definition amongst Muslim scholars for the Abode of Islam (Dar al-Islam) was those lands where the Shariah reigns.[7] Muslims outside that space reside in lands and countries as guests of whatever legal or religious system reigns there. If the law of the land were to prohibit Muslims from carrying out a duty required by the Shariah, such as prayer, or require them to do something clearly forbidden in Islam, such as drinking alcohol, the standard opinion amongst classical Muslim scholars was that Muslims could no longer reside there (a second opinion was that they should remain so that the religion of Islam would not vanish there). Otherwise, Muslims must respect the law of the land. Their decision to reside in those lands represents their agreement to a contract with the governments ruling them. As the Quran commands Muslims, “be true to your agreements” (Quran 5:1), and as the Prophetﷺ taught, “Muslims are bound by the conditions [of their agreements].”[8] The Shariah continues to govern Muslims’ private worship and whatever areas of law the local system leaves open (such as contracts, inheritance and marriage in the US), but Muslims must respect and abide by the restrictions, duties and regulations placed upon them.
'Kill the one who has committed sodomy' & The Rule of Law in the Shariah
How do Muslims reconcile the principle of the rule of law with the commands of their sacred scriptures? The Quran echoes the Bible in its tone regarding justice. ‘A life for a life, an eye for an eye…’ (Quran 5:45) has an immediacy about it, as does the Prophet’s Hadith (contested, as mentioned above) ‘Whoever you find committing the act of the people of Lot, kill the active and passive partners.’ Aren’t commands like this directed at us as individuals?
This question was posed to the most famous scholar of thirteenth-century Cairo (and Damascus, for that matter). Ibn ‘Abd al-Salam was asked whether a person who had committed a grievous crime or mortal sin was allowed to take the law into his own hands and kill himself. The answer was no, ruled the scholar. If the person wants to be punished, he should confess before a judge so that he could be dealt with ‘in the legal manner (‘ala al-wajh al-shar’i).’ Scriptures like the Bible and the Quran address mankind at the level of conceptual default, as individuals unmediated by governments. At that level, Ibn ‘Abd al-Salam explained, it was indeed individuals who sought justice for wrongs done them, who exacted ‘an eye for an eye.’ But, he continued, the Shariah delegated this power and role to governments because of the serious risk of abuse.[9]
This became the standard position of Muslim scholars regarding punishing people for the Hudud crimes as well as for handling crimes like murder. In the Hanbali school (my school), the position has been clear: “For us the principle is delegating the Hudud to the authority (imam), because it is right of God, so it should be delegated to His deputy [on earth].” A later Hanbali scholar explains that this is because enforcing such laws “requires exercising discernment and reason (ijtihad)” to make sure that justice is being done.[10] In the case of murder, the family of the victim has a God given (even natural) right to see justice done and to see the killer punished. But if a family member kills the murderer himself, without permission from the ruler or judge, he can be seriously punished. If someone kills the murderer when the judge has explicitly ordered they not be touched, then the vigilante will themselves be charged with murder. There can be no execution of a murderer, even one whose guilt is known, without permission from the ruling authority (these are examples from the Hanafi and Shafi schools of law).[11] As summed up by the late, great Muslim jurist Wahba al-Zuhayli, “It is an agreed upon principle that applying the punishments of the Hudud and Qisas (eye-for-an-eye crimes) as well as other discretionary punishments falls under the special purview of the authorities (imam).”[12]
CAIR approved propaganda...Where is this Amazing Pluralism and respect for human rights in most [NON SECULAR] Islamic societies today
That's not in the Q'ur'an.
some plurality of laws they have here...
Key words, Kafir.
Seeing as the author is in support of gay civil marriage and unequivocally repudiates Omar Mateen's actions as illegal in both Islamic law and civil law, no, I don't think he's defending the death penalty for homosexuality. In fact, his point was that Islamic societies have traditionally made it very difficult for homosexuality to be punishable by death. He points to the fact that there have always been undertones of homosexuality in Islamic writing and culture, and it's been more or less tolerated but swept under the rug.