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Liwāṭ in Islamic Jurisprudence

By:
Junaid Jahangir, Hussein Abdullatif
Source:
Oxford Islamic Studies Online What is This? Online-only content developed by noted scholars is continuously added to the site, part of our ongoing efforts to expand our coverage of the Islamic world.

Liwāṭ in Islamic Jurisprudence

Homosexual sex between men is predominately reduced to and understood as the act of liwāṭ, which is expressly defined as “inserting the tip of the penis into the anus of a male” (Islam Q&A 2009, par. 10). Traditionally, it has been viewed as resulting from excessive desire or disease. Being outside the folds of a legal contract, defined through nikāḥ (marriage) or mulk yamin (legal authority/ownership), homosexual sex is deemed prohibited. However, it stands to reason that if same-sex nikāḥ were to be accommodated in jurisprudence, then homosexual sex would become permissible and regulated in ways similar to those set for heterosexual couples (Jahangir and Abdullatif, 2016). For example, heterosexual sodomy is not permitted between a husband and wife in Sunnī jurisprudence, but the enjoyment of the anus without penetration is. Enjoyment of the anus without penetration in a legal heterosexual coupling is deemed licit in Muslim jurisprudence as in the work of al-Nawawī (d. 1278) (Haddad, par. 9). Likewise, al-Zabīdī (d. 1790) opined that “to enjoy the backside without entering the rectum is permissible, because with that exception, all parts of a woman’s body may be enjoyed by the husband” (Maqsood, par. 19). According to Habeeb Alli, this includes rimming (Alli 2011, pp. 41–44).

In Shīʿī jurisprudence, according to one text, Jaʾfar al-Ṣādiq opined that there is no problem with anal intercourse if the wife agrees, and recited the verse of tilth (2:223) to substantiate this position (Rizvi, footnote 54). Shīʿī authorities including al-Mufīd (d. 1022), Shaykh Ṭūsī (d. 1067), al-Murtaḍā (d. 1044) and al-Ḥillī (d. 1325) deem the act makrūh (detestable) but not sinful (Shia Pen). Based on the widely held Shīʿī opinion, Ayatollah Lankarānī (d. 2007) (Lankarani, par. 3) and Ayatollah Sistānī ruled that while the act is strongly undesirable, it is permissible based on the wife’s agreement (Alul Bayt, Q42).

Liwāṭ

According to Muslim scholars, based on verse 7:80, homosexual sex is associated with the people of Lūṭ and predominantly viewed as an exploitative act, in the context of pederasty and assault. Commentaries by Ibn Kathīr (d. 1373; par.1), al-Bayḍāwī (d. 1286; 2009), al-Qurṭubī (d. 1273), and al-Ṭabarī (d. 923; 1986, pp. 112–118) suggest that the people of Lūṭ invented homosexual sex and this is the common understanding among classical Sunnī jurists. Likewise, a Shīʿī Tafsīr suggests that the people of Lūṭ were the founders of the deed at least in public meetings where they sometimes revealed their private parts (Imani, 2005, pp. 395–396, 487–488). Similarly, Egyptian jurist Ibrāhīm al-Bājūrī (d. 1860) stated that the people of Lūṭ were the first to sodomize men (El-Rouayheb, 2005, pp. 17, 115). However, al-Rāzī (d. 1209) claimed that verse 7:80 might allude to the collective action of the people of Lūṭ rather than individual conduct (al-Rāzī, 2009).

Capital Punishment

Referencing the Medinese scholar Shihāb Zuhrī, Mālik (d. 795) opined that both the active and receptive partner in liwāṭ should be killed irrespective of their marital status (Ibn ʿAbd al-Barr, 2009, p. 493). However, Ibn Ḥazm (d. 1064) critiqued scholars for referring to Shihāb Zuhrī’s opinions without providing arguments rooted in the Qurʾān and the ḥadīth texts. He indicated that such scholars would accept Shihāb Zuhrī’s opinions, whenever his opinions corresponded with their own (Adang, 2003, p. 26).

Al-Shāfiʿī (d. 820) and Ibn Ḥanbal (d. 855) also supported capital punishment by referencing texts that depict the opinions and conduct of the Companions including Ibn ʿAbbās (d. 687). However, the Ibn ʿAbbās texts were not considered authentic enough to allow his students like Mujāhid Ibn Jabr (d. 722) to prescribe the same punishment (Ibn ʿAbd al-Barr, 2009, p. 493). The opinions of tābiʿūn (successors) like Mujāhid indicate that either the texts that depict the opinions and conduct of the Companions are not trustworthy or alternatively the tābiʿūn felt that the opinions of the Companions on liwāṭ are not binding.

Ibn Ḥazm (d. 1064) refuted the rulings that prescribe death by burning, stoning, or by sword of both the active and receptive partners, irrespective of their marital status. Based on the verses on Lūṭ’s people, he argued that the proponents of capital punishment would be inconsistent in their methodology by prescribing death for liwāṭ but not for disbelieving in God’s Prophet, for abetting the act and by not blinding those who accosted others for liwāṭ. Critiquing such inconsistencies, he opined that people who tamper with weights and measure should also be burned, and people who wound another person’s she-camel should be executed because the people of Shuʿayb and Ṣāliḥ were destroyed respectively for those reasons as mentioned in the Qurʾān (Ibn Hazm, 2009).

Punishment of Liwāṭ as Zinā

Al-Shāfiʿī and Ibn Ḥanbal are better known to have prescribed the punishment of zinā for liwāṭ. This position is substantiated by texts which indicate that Ibn Zubayr (d. 692) meted out the punishment for zinā for liwāṭ (Al-Bayhaqī, 2009, p. 233). However, Ibn Ḥazm contends that texts from Ibn Zubayr and other Companions are traced through unknowns in the transmission chain and suggests that it would be inappropriate to accept any opinion attributed to the Companions on liwāṭ. Likewise, the ḥadīth, which define the perpetrators of liwāṭ as perpetrators of zinā or which equate siḥāq (tribadism) with zinā are considered weak by several ḥadīth experts (Adang, 2003, pp. 21, 27).

Several Shāfiʿī and Ḥanbalī jurists and a minority of Ḥanafī jurists used qiyās khafī (hidden analogy) to equate liwāṭ with zinā by reasoning that both acts involved penetration and the pursuit of sexual desire. However, Muʿtazilah, Ẓāhirī, Shīʿī, and some Ḥanbalī scholars have critiqued the methodology of qiyās to determine the causes and objectives of divine injunctions (Kamali, 2005, p. 265). Furthermore, Ḥanafī jurists reject the use of qiyās in divinely ordained punishments, including zinā, and attribute a legal maxim in this regard to Abu Ḥanīfa. Likewise, the Mālikī jurists have rejected the use of qiyās of liwāṭ to zinā. Given such disagreements, the Ḥanafī jurist Ibn al-Humām (d. 1457) stated that everybody disagreed on the analogy (Lange, 2008, pp. 181, 183).

Jurists who disagreed with this analogy indicated that there were sufficient differences between the two acts. Ḥanafī jurists like Abu Yūsuf (d. 767) and Shaybānī (d. 805) defined zinā as the penetration of a farj (genital) by another farj in a legally prohibited manner to satisfy carnal desire in a desired object (Lange, 2008, p. 208). However, past scholars including Abu Ḥanīfa did not consider the anus to be farj (al-Rāzī, 2009). Ḥanafī jurists like Samarqandī (d. 1144) and Kāsānī (d. 1191) clearly defined zinā as the insertion of the penis into the vagina (Lange, 2008, p. 208), as did Ibn Ḥazm. Several scholars argued that had the Companions equated liwāṭ with zinā, they would not have differed in their opinions on liwāṭ (al-Rāzī, 2009).

Abū Yaʿlā al-Farrāʾ (d. 1066) opined that liwāṭ is worse than zinā as the vulva can become lawful through a legal contract (Juferi, 2007, footnote 8). Al-Nawawī stated that the prohibition of male youths is more worthy as access to vice in their case is easier than with women (El-Rouayheb, 2005, p. 114) and Zaylaʿī (d. 1342/43) indicated that liwāṭ occurs as often or more frequently than zinā (Lange, 2008, p. 211). However, Ibn Ḥazm invalidated the Mālikī position that liwāṭ is worse than zinā (Adang, 2003, p. 24).

Several jurists opined that zinā was more morally reprehensible in that it led to confusion of lineages, and that since people are more zealously protective of females, they may venture to kill the one who commits fornication with them (El-Rouayheb, 2005, p. 128). Additionally, they argued that liwāṭ was half as widespread as zinā as there was only one solicitor in the act, for males generally do not desire to be penetrated and therefore deterrence through punishment was not warranted to the same extent as for zinā (Lange, 2008, p. 212).

Discretionary Punishment

The majority of Hanafis supported discretionary punishment. Jurists like Sarakhsī (d. 1096) and Kāsānī (d. 1191) stated that liwāṭ did not have a legally prescribed punishment, whereas according to Ibn al-Humām (d. 1456) there is no legally prescribed injunction against liwāṭ based on the Qur’an, Hadith or any ijmāʿ (consensus) on the issue. In fact, Kāsānī passed over the Hadith on liwāṭ as he deemed such evidence not even worthy of refutation (Lange 2008, 202, 205). Given, the absence of any legally prescribed punishment, some Ḥanafī jurists stated that any whipping should not exceed 39 lashes, one less than the lowest Ḥadd punishment of 40 lashes. However, while prescribing the taʿzīr penalty for liwāṭ that comprised of beatings and imprisonment, the Ḥanafī jurists ruled that repeat offenders warranted the capital punishment (El-Rouayheb 2005, 119).

No punishment for liwāṭ with male slaves

While a majority of jurists deemed sexual use of male slaves as prohibited, a Ḥadd penalty was not implemented on the basis of semblance with lawful conduct with female concubines (Ali 2010, 182). The Ḥanafī al-Kawākibī (d. 1685) clearly stated that based on the phrase “what their right hand possesses” verses 23:6 and 70:30, which generally alluded to female concubines, there were those who deemed liwāṭ with male slaves permissible (El-Rouayheb 2005, 124). According to Ibn al-Humām (d. 1456), based on ijmāʿ (consensus), there was no Ḥadd penalty on a man who had liwāṭ with his male slave (Omar 2012, 251). In fact, only the Ḥanbalī jurists were unambiguous in their condemnation of sodomizing male slaves (Schmitt 2001-2). While, male slaves did not have much legal recourse in cases of liwāṭ, jurists like Ibn al-Qayyim (d. 1350) ruled that the male slave was justified in running away from his master to avoid liwāṭ (Rose 2000, 27).

Decriminalization

Ḥanafi jurist Kāsānī (d. 1191) indicated that given the rationale of punishment as deterrence, if the offender persists with the crime even after the ḥadd punishment then no further punishments may be warranted (Ramadan 2006, 55). Likewise, al-Qarāfī (d. 1285) argued that sins whose secular harms were inconsequential enough did not merit any legal punishment, as a severe penalty would be disproportionate relative to the harm of the sin, whereas a proportional penalty would be insufficient to deter the commission of such sins (Fadel 2007, 83). According to the Universalist school traced back to Abu Ḥanīfa, law is required to punish crimes that violate people’s rights or disrupt social order, whereas sins that do not harm others or disrupt the social order are not required to be punished (Senturk 2006, 30, 38). As such, differentiating between a sin and crime and alluding to the absence of a Qur’anic punishment, prominent Sunnī and Shia scholars in India like Asghar Ali Engineer (d. 2013), Maulana Nadvi and Maulana Rizvi have favored the decriminalization of “homosexuality” (The Times of India 2009, par. 7). Their views have a precedent in the Tanzimat Ottoman reforms, which decriminalized homosexuality in 1858 (Hussain 2011, 10).

Same-Sex Acts in Shī‘ī Jurisprudence

One of the greatest authorities in Shī‘ī jurisprudence, Ja‘far al-Ṣādiq (d. 765) indicated that the prohibition of liwāṭ is one of the necessary factors of religion (ShiaPen, n.d.). He opined that anal intercourse with males is a greater sin than fornication, as a whole nation was destroyed for the former. Likewise, Dastghaib Shīrāzī (d. 1981) opined that anyone who deems liwāṭ to be permissible is a kāfir (unbeliever) because deeming the act illegal is a requirement of faith (Shīrāzī 1998). Similarly, the contemporary commentator ‘Ali Akbar Ghefari opined that the act is equivalent to kufr (disbelief) in terms of its punishment in the Hereafter, and is deemed equivalent to blood shedding (ShiaPen, n.d.).

Dastghaib Shīrāzī indicated that since the Qur’an described three kinds of punishment for the people of Lūṭ—terrible scream, shower of stones and turning the earth upside down—any of these may be inflicted on those who commit similar acts (Shīrāzī 1998). According to Ja‘far al-Ṣādiq, the active partner is to be struck with a sword if he penetrates the male anus and is lashed if he does not, but the receptive partner is punished with death irrespective of his iḥṣān status. However, other texts deem the punishment contingent on the iḥṣān status of the receptive partner as well (Tashayyu, n.d.).

While such opinions are similar to those in Sunni jurisprudence, Shī‘ī jurisprudence takes a stronger stance even on acts falling short of liwāṭ. Some texts indicate Ja‘far al-Ṣādiq’s opinion that pressing the penis between thighs also constituted liwāṭ (Shīrāzī 1998). Both al-Mufīd (d. 1022) and al-Hakim (d. 2002) specified 100 lashes for both the il and the maf‘ūl bih for tafkhīdh (intercrural intercourse), a punishment that is replaced by death if the perpetrators are caught for a third time.

The revival of ijtihad (independent reasoning)

In summary, every Companion, tabi’i (successor) and jurist who equated the punishment of liwāṭ to that of zinā, essentially reflected the understanding that the analogy of zinā better explained liwāṭ rather than the story of Lūṭ. Furthermore, every tabi’i and jurist who prescribed the taʿzīr punishment reflected the understanding that it was problematic to explain liwāṭ through the story of Lūṭ or through the analogy of zinā. Additionally, there is a strong case for the decriminalization of liwāt.

Legal inertia prevents contemporary Muslim jurists from taking a renewed approach on the issue, as past Muslim jurists in the age of taqlīd (imitation) denounced social changes by deeming them as aberrations (Kamali 2005, 519). Likewise, ijmāʿ (consensus) has been abused to silence opponents even when there is no ijmāʿ on the definition of ijmāʿ, as many scholars do not even restrict the definition to the ijmāʿ of the Companions (Farooq 2006). The Grand Mufti of Zambia, Sheikh Assadullah Mwale, has asserted on LGBTQ Muslims that, “you were created the way you are” and therefore “everyone is allowed in Islam and very much welcomed” (E-Motive, 2015). Such a declaration follows from the juristic reasoning of al-Ghāzālī (d. 1111) who opined that the three roots of belief (or of being Muslim) are belief in God, the Apostle and the Last Day and anything else is a branch of belief on which the charge of unbelief cannot be imputed (Kamali 1997, 220). Such an approach provides backing to independent reasoning on the issue of male homosexuality.

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