Before Homosexuality in the Arab-Islamic World, 1500-1800 (50 page)
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Hanafī jurists, who were well aware that the other schools held
hadd
punishments to be applicable to
liwāṭ
, nevertheless claimed that there existed a consensus to the effect that discretionary chastisement (
ta ‘zīr
) rather than
hadd
was applicable in case a man had anal intercourse with his male slave, because of a mitigating
shubhah
.
60
Thus, the Hanafī Mufti of Aleppo Muhammad al-Kawākibī (d. 1685) wrote:
hadd
punishments to be applicable to
liwāṭ
, nevertheless claimed that there existed a consensus to the effect that discretionary chastisement (
ta ‘zīr
) rather than
hadd
was applicable in case a man had anal intercourse with his male slave, because of a mitigating
shubhah
.
60
Thus, the Hanafī Mufti of Aleppo Muhammad al-Kawākibī (d. 1685) wrote:
If, however, he commits
Liwāzṭ
with his male slave, or female slave, or wife, then he is by consensus (
ijmā
‘) not liable to
ḥadd
, since there are those who deem it is permissible [to do so] on the basis of the saying of the Exalted [Qurʾan 23 : 6 and 70 : 30]: “Except for their wives or what their right hands possess.”
61
This was contradicted, however, by the jurists of the other schools who asserted that
shubhah
did not apply to male slaves.
Liwāṭ
with a male slave was consequently to be considered as equivalent to
Liwāṭ
with any other man.
62
It was often underlined that there was a binding consensus (
ijmāʿ
)among scholars that the Qurʾanic verses that allow a man to have sexual intercourse with his slaves only applied to female slaves.
63
The very fact that the jurists were eager to point this out suggests that the interpretation that they wished to disallow had, at one time or other, been voiced, and was possibly still advanced outside of scholarly circles. The Ḥanafī jurist Ḥaṣkafī asserted that a person who interprets the relevant Qur‘anic verses as legitimizing
liwāt
with a male slave was to be regarded as an apostate
(murtadd)
.
Yet, other jurists of the same school, such as Ibn ‘Ābidīn, stated that a person who claims that
liwāṭ
with a male slave is permissible is not thereby to be considered an unbeliever.
64
This would make
liwāṭ
with a male slave equivalent, from a Sunnī point of view, to “temporary”
(mutʿah)
marriage (which is allowed by the Shī‘ī school oflaw): both were prohibited, but a person who upholds its permissibility is not an unbeliever. Other Ḥanafī jurists specified that it is anal intercourse with a female slave or wife that could be claimed to be permitted without falling into unbelief.
65
In any case, this whole line of thought was said to be one of the things that are “known [by scholars] but should not be made known [to people in general]”
(yuʿlam wa lā yuʿlam).
shubhah
did not apply to male slaves.
Liwāṭ
with a male slave was consequently to be considered as equivalent to
Liwāṭ
with any other man.
62
It was often underlined that there was a binding consensus (
ijmāʿ
)among scholars that the Qurʾanic verses that allow a man to have sexual intercourse with his slaves only applied to female slaves.
63
The very fact that the jurists were eager to point this out suggests that the interpretation that they wished to disallow had, at one time or other, been voiced, and was possibly still advanced outside of scholarly circles. The Ḥanafī jurist Ḥaṣkafī asserted that a person who interprets the relevant Qur‘anic verses as legitimizing
liwāt
with a male slave was to be regarded as an apostate
(murtadd)
.
Yet, other jurists of the same school, such as Ibn ‘Ābidīn, stated that a person who claims that
liwāṭ
with a male slave is permissible is not thereby to be considered an unbeliever.
64
This would make
liwāṭ
with a male slave equivalent, from a Sunnī point of view, to “temporary”
(mutʿah)
marriage (which is allowed by the Shī‘ī school oflaw): both were prohibited, but a person who upholds its permissibility is not an unbeliever. Other Ḥanafī jurists specified that it is anal intercourse with a female slave or wife that could be claimed to be permitted without falling into unbelief.
65
In any case, this whole line of thought was said to be one of the things that are “known [by scholars] but should not be made known [to people in general]”
(yuʿlam wa lā yuʿlam).
The condemnation of
liwāṭ
and most probably the word itself, may be traced to the Qur‘an.
66
On several occasions, the Qurʾan refers to the peculiar vice of the people of Sodom to whom the Prophet Lot (
Lūṭ
) had been sent (translations by E. H. Palmer):
liwāṭ
and most probably the word itself, may be traced to the Qur‘an.
66
On several occasions, the Qurʾan refers to the peculiar vice of the people of Sodom to whom the Prophet Lot (
Lūṭ
) had been sent (translations by E. H. Palmer):
7 : 81 - 82 - and Lot, when he said unto his folk, “Will ye commit abomination such as no creature ever did before you? Lo, ye come with lust unto men instead of women. Nay, but ye are wanton folk.”26 : 165—when their brother Lot said to them ... “Do ye approach males of all the world and leave what God your Lord has created for you of your wives? nay, but ye are people who transgress.”27: 55—And Lot when he said to his people, “Do ye approach an abominable sin while ye can see? do ye indeed approach men lustfully rather than women? nay! ye are a people who are ignorant.”29:29—And Lot when he said to his people, “Verily, ye approach an abomination which no one in all the world anticipated you in! What! do ye approach men? and stop folks on the highway? and approach in your assembly sin?”
The Qur‘an (II: 77ff.; I5: 6Iff.) also relates that God sent “messengers” (traditionally interpreted as angels in human form) to Lot, and that the inhabitants of the town “hurried” to the host, presumably to rape his guests. Lot offered his own daughters to the aggressive townsmen instead but was rebuffed. Thereafter God destroyed the people of Lot with a rain of “stones of baked clay,” and by “making their high parts their low parts”; the latter was usually interpreted to mean that their land had been raised up to the sky and then turned upside down. Both forms of divine punishment were reflected in the otherwise peculiar above-mentioned penalties for
liwāṭ:
burning the perpetrators alive, throwing them down from the highest part of a city, or demolishing a wall over them. Interestingly, the relevant passages of the Qurʾan do not specify which sexual acts had been committed by the people of Lot. Nevertheless, from an early period, Muslim jurists identified “the act of the people of Lot” (
fiʿl qawm Lūṭ
) with anal intercourse, to the extent that in juridical terminology
liwāṭ
could be used to refer to anal intercourse between a man and a woman.
liwāṭ:
burning the perpetrators alive, throwing them down from the highest part of a city, or demolishing a wall over them. Interestingly, the relevant passages of the Qurʾan do not specify which sexual acts had been committed by the people of Lot. Nevertheless, from an early period, Muslim jurists identified “the act of the people of Lot” (
fiʿl qawm Lūṭ
) with anal intercourse, to the extent that in juridical terminology
liwāṭ
could be used to refer to anal intercourse between a man and a woman.
Several sayings (
ḥadīth
) attributed to the Prophet Muhammad are also severely condemnatory of
liwāṭ.
Two of these have already been mentioned, one demanding the death penalty for both partners and the other classifying
liwāṭ
as
zinā.
In addition, one may cite the following:
67
ḥadīth
) attributed to the Prophet Muhammad are also severely condemnatory of
liwāṭ.
Two of these have already been mentioned, one demanding the death penalty for both partners and the other classifying
liwāṭ
as
zinā.
In addition, one may cite the following:
67
That which I fear most for my people
(ummatī)
is the act of the people of Lot [variants of this tradition ascribe this status to other vices such as fornication or drinking wine].If sodomites
(al-lūṭiyyah)
become common, God, the Glorious and Exalted, will wash his hand of mankind and not care in which abyss they perish.May God curse he who commits the act of the people of Lot.God, the Glorious and Exalted, has no regard for a man who has intercourse with a man or a woman in her anus.Four will face the anger of God and witness the wrath of God: men who adopt the antics of women; women who adopt the antics of men; he who commits bestiality; and he who sodomizes men.
As regards the last tradition, it is noteworthy that “men who adopt the antics of women” and “he who sodomizes men”
(al-ladhī ya‘tī al-rijāl)
are assumed to belong to different categories. The vices that tradition ascribed to the people of Lot were numerous, and a few sources did include the vice of “using henna and adorning themselves like women.”
68
Yet their dominant image as presented by commentators of the Qurʾan was not one of effeminacy but rather of aggressive masculinity. The objects of the Sodomites’ desires were, on one account, said to be strangers passing through their areas. In the popular fifteenth-century commentary of “the two Jalāls” (Jalāl al-Dīn al-Mahallī and Jalal al-Dīn al-Suyūtī), the phrase “stop folks on the highway”
(taqṭa‘ūn al-sabīl)
was interpreted as sexual assault on travelers.
69
Some commentators explicitly stated that the people of Lot only sodomized strangers
(kānū lā yaf ʿalūna dhālika illā bi-al-ghurabāʾ).
70
According to other traditions, the people of Lot were pederasts. Qurʾanic commentators of the period apparently agreed that the angels who visited Lot and whom the Sodomites wanted to rape had assumed the form of handsome, beardless youths.‘
71
Abū al-Suʿūd Efendī (d. 1574), the Ottoman Grand Mufti, explained that the Qurʾan spoke of the people of Lot having intercourse with “men”
(rijāl)
rather than “youths”
(ghilmān)
by way of emphasizing the despicable nature of their deed, and not—one may infer—because the sodomized were actually adults.
72
The traditions according to which “the people of Lot” raped strangers and sodomized boys were, of course, not irreconcilable. According to one much-cited tradition, they started to sodomize strangers as a way of driving visitors and immigrants from their prosperous land, and then started to become addicted to the vice after having raped handsome, beardless youths. Some accounts had Satan assume the form of a wise old man recommending sodomy as a way of getting rid of strangers; other accounts had him assume the form of a very handsome youth who was the first “victim” of the policy and who thereby corrupted the tastes of the Sodomites; and yet other accounts had him play both roles.
73
(al-ladhī ya‘tī al-rijāl)
are assumed to belong to different categories. The vices that tradition ascribed to the people of Lot were numerous, and a few sources did include the vice of “using henna and adorning themselves like women.”
68
Yet their dominant image as presented by commentators of the Qurʾan was not one of effeminacy but rather of aggressive masculinity. The objects of the Sodomites’ desires were, on one account, said to be strangers passing through their areas. In the popular fifteenth-century commentary of “the two Jalāls” (Jalāl al-Dīn al-Mahallī and Jalal al-Dīn al-Suyūtī), the phrase “stop folks on the highway”
(taqṭa‘ūn al-sabīl)
was interpreted as sexual assault on travelers.
69
Some commentators explicitly stated that the people of Lot only sodomized strangers
(kānū lā yaf ʿalūna dhālika illā bi-al-ghurabāʾ).
70
According to other traditions, the people of Lot were pederasts. Qurʾanic commentators of the period apparently agreed that the angels who visited Lot and whom the Sodomites wanted to rape had assumed the form of handsome, beardless youths.‘
71
Abū al-Suʿūd Efendī (d. 1574), the Ottoman Grand Mufti, explained that the Qurʾan spoke of the people of Lot having intercourse with “men”
(rijāl)
rather than “youths”
(ghilmān)
by way of emphasizing the despicable nature of their deed, and not—one may infer—because the sodomized were actually adults.
72
The traditions according to which “the people of Lot” raped strangers and sodomized boys were, of course, not irreconcilable. According to one much-cited tradition, they started to sodomize strangers as a way of driving visitors and immigrants from their prosperous land, and then started to become addicted to the vice after having raped handsome, beardless youths. Some accounts had Satan assume the form of a wise old man recommending sodomy as a way of getting rid of strangers; other accounts had him assume the form of a very handsome youth who was the first “victim” of the policy and who thereby corrupted the tastes of the Sodomites; and yet other accounts had him play both roles.
73
The jurists’ discussion of
liwāṭ
sometimes included brief considerations on whether it was more or less grave a sin than
zinā
between a man and a woman. Given the rulings of their school, the opinion of Mālikī and Imāmī Shīʿī jurists could not be in doubt. To jurists of the other schools the question was in principle open, though most of them seem to have agreed that
liwāt
was the more abominable of the two. It should be emphasized that what was being compared was not “homosexuality” and “heterosexuality,” but “anal intercourse between men” and “illicit vaginal intercourse between men and women.” Non-anal intercourse between men was, at least for all the Sunnī schools of law, not as grave a sin as illicit vaginal intercourse between a man and a woman. The arguments adduced in discussions of the relative gravity of the two acts tend to fall into the following three types:
liwāṭ
sometimes included brief considerations on whether it was more or less grave a sin than
zinā
between a man and a woman. Given the rulings of their school, the opinion of Mālikī and Imāmī Shīʿī jurists could not be in doubt. To jurists of the other schools the question was in principle open, though most of them seem to have agreed that
liwāt
was the more abominable of the two. It should be emphasized that what was being compared was not “homosexuality” and “heterosexuality,” but “anal intercourse between men” and “illicit vaginal intercourse between men and women.” Non-anal intercourse between men was, at least for all the Sunnī schools of law, not as grave a sin as illicit vaginal intercourse between a man and a woman. The arguments adduced in discussions of the relative gravity of the two acts tend to fall into the following three types:
(i) Appeal to religious tradition: The Egyptian scholars ‘Abd al-Wahhāb al-Sha‘rānī (d. 1565) and ʿAlī al-ʿAzīzī al-Būlāqī (d. 1658) both emphasized that the Qurʾanic verses and the sayings of the Prophet which condemn
liwāṭ
are, on the whole, more severe in tone than those which condemn
zinā
.
74
The Hanbarī Mar‘ī ibn Yusuf al-Karmī also considered
liwāṭ
more reprehensible than
zinā
, and based his judgment on the fact that “some” scholars held that the former should be punished more severely than the latter.
75
A tradition related by the Shīʿī scholar Muhammad al-Hurr al-‘Āmilī (d. 1693) said: “The inviolability
(ḥurmah)
of the anus is greater than the inviolability of the vagina, and God destroyed a people because of the inviolability of the anus and did not destroy anyone because of the inviolability of the vagina.”
76
(ii) Appeal to the repulsiveness of
liwāṭ:
Several scholars asserted that
liwāṭ
is “contrary to natural disposition”
(muharram tab‘an),
in the sense that it is repulsive to people of “sound character”
(al-tabʿ al-salim)
, whereas
zinā
is not.
77
The same belief would seem to be presupposed by several commentators of the Qur‘an when they stated that the act pioneered by the people of Lot was something that was so abominable that it had not occurred to humans before that time. Abū al-Suʿūd Efendī explained the absence of
liwāṭ
in the pre-Sodomite era in terms of its “completely abominable character, for the agreement of all individuals of mankind in shunning it [until then] is only because it is what disgusts dispositions and repels inclinations.”
78
Again, it bears emphasizing that it is
liwāṭ
and not “homosexuality” that was said to be contrary to “sound character.” In accordance with juridical terminology,
liwāṭ
would not include instances of non-anal intercourse between men, but could easily apply to anal intercourse between a man and a woman. The statement that
liwāṭ
is repulsive to someone of “sound character” is therefore most safely interpreted to mean that anal intercourse is repulsive to those of “sound character,” regardless of whether two men or a man and a woman were involved. Such an assumption does not, however, by itself imply that the people who committed the act were thought to be pathologically abnormal. The term “sound character” is hardly a purely descriptive medical term. Like the term
dāʾ
discussed in chapter I,it can often be used in an almost purely evaluative sense. The Egyptian scholar ʿAbdal-Ra‘ūfal-Munāwī(d. 1622) explicated the claim that
liwāṭ
is contrary to sound character in the following manner: for the passive partner the inducement to commit the act was either effeminacy or a pathological itch in the rectum; for the active agent, it was the rational faculty’s subservience to animal desires.
79
In the latter case, the failing was thus clearly of a moral rather than pathological character. The idea that the people of Lot behaved “animalistically”
(bahīmiyh)
in pursuing sexual pleasure with no regard to the divinely sanctioned purpose behind intercourse-progeny and “fortification” against fornication—was repeatedly asserted in the Qurʾanic commentaries of the period.
80
To be sure, there was a potential tension in condemning an act as unnatural and hence absent from the animal kingdom, and condemning its perpetrators as “animalistic.” Presumably, we are dealing with another expression of the above-mentioned tension between believing that
liwāṭ
is contrary to the natural order of things, and that
liwāṭ
is a common temptation to be kept in check by reason and religion (which animals lack).
liwāṭ
are, on the whole, more severe in tone than those which condemn
zinā
.
74
The Hanbarī Mar‘ī ibn Yusuf al-Karmī also considered
liwāṭ
more reprehensible than
zinā
, and based his judgment on the fact that “some” scholars held that the former should be punished more severely than the latter.
75
A tradition related by the Shīʿī scholar Muhammad al-Hurr al-‘Āmilī (d. 1693) said: “The inviolability
(ḥurmah)
of the anus is greater than the inviolability of the vagina, and God destroyed a people because of the inviolability of the anus and did not destroy anyone because of the inviolability of the vagina.”
76
(ii) Appeal to the repulsiveness of
liwāṭ:
Several scholars asserted that
liwāṭ
is “contrary to natural disposition”
(muharram tab‘an),
in the sense that it is repulsive to people of “sound character”
(al-tabʿ al-salim)
, whereas
zinā
is not.
77
The same belief would seem to be presupposed by several commentators of the Qur‘an when they stated that the act pioneered by the people of Lot was something that was so abominable that it had not occurred to humans before that time. Abū al-Suʿūd Efendī explained the absence of
liwāṭ
in the pre-Sodomite era in terms of its “completely abominable character, for the agreement of all individuals of mankind in shunning it [until then] is only because it is what disgusts dispositions and repels inclinations.”
78
Again, it bears emphasizing that it is
liwāṭ
and not “homosexuality” that was said to be contrary to “sound character.” In accordance with juridical terminology,
liwāṭ
would not include instances of non-anal intercourse between men, but could easily apply to anal intercourse between a man and a woman. The statement that
liwāṭ
is repulsive to someone of “sound character” is therefore most safely interpreted to mean that anal intercourse is repulsive to those of “sound character,” regardless of whether two men or a man and a woman were involved. Such an assumption does not, however, by itself imply that the people who committed the act were thought to be pathologically abnormal. The term “sound character” is hardly a purely descriptive medical term. Like the term
dāʾ
discussed in chapter I,it can often be used in an almost purely evaluative sense. The Egyptian scholar ʿAbdal-Ra‘ūfal-Munāwī(d. 1622) explicated the claim that
liwāṭ
is contrary to sound character in the following manner: for the passive partner the inducement to commit the act was either effeminacy or a pathological itch in the rectum; for the active agent, it was the rational faculty’s subservience to animal desires.
79
In the latter case, the failing was thus clearly of a moral rather than pathological character. The idea that the people of Lot behaved “animalistically”
(bahīmiyh)
in pursuing sexual pleasure with no regard to the divinely sanctioned purpose behind intercourse-progeny and “fortification” against fornication—was repeatedly asserted in the Qurʾanic commentaries of the period.
80
To be sure, there was a potential tension in condemning an act as unnatural and hence absent from the animal kingdom, and condemning its perpetrators as “animalistic.” Presumably, we are dealing with another expression of the above-mentioned tension between believing that
liwāṭ
is contrary to the natural order of things, and that
liwāṭ
is a common temptation to be kept in check by reason and religion (which animals lack).
(iii) Appeal to consequences: The Egyptian Shāfi‘ī jurist ʿAlīal-Shabrāmallisī (d. 1676) judged
liwāṭ
to be less reprehensible than
zinā
since it did not result in the confusion of fineages.
81
The Hanbalī scholar Muhammad al-Saffārīmī(d. 1774) considered
liwāṭ
tobe more heinous than
zinā
if the two acts were compared in isolation, but added that
zinā
was the graver sin in respect of the consequences, since it led to the confusion of lineages.
82
Ḥanafī jurists also referred to this difference between
liwāṭ
and
zina
in their arguments for their school’s position that the former sin was to be punished by discretionary chastisement rather than
ḥadd
. The same point was cited by Sha‘rānīas a possible argument in favor of the superior gravity of
zinā,
though he himself adopted the contrary conclusion. Another remark by Shaʿris interesting in that it allows a glimpse of a more concrete difference in the respective consequences of
liwāṭ
and
zinā
: “People are not as zealously protective of the male, and do not venture to kill the one who sodomizes him, as they are zealously protective of free women if someone commits fornication with them.”
83
Sodomy might have been considered more reprehensible than fornication by a majority of jurists, but it could very well have been both easier and safer in a premodern, gender-segregated society in which private vengeance was possibly a more immediate threat than state action.
liwāṭ
to be less reprehensible than
zinā
since it did not result in the confusion of fineages.
81
The Hanbalī scholar Muhammad al-Saffārīmī(d. 1774) considered
liwāṭ
tobe more heinous than
zinā
if the two acts were compared in isolation, but added that
zinā
was the graver sin in respect of the consequences, since it led to the confusion of lineages.
82
Ḥanafī jurists also referred to this difference between
liwāṭ
and
zina
in their arguments for their school’s position that the former sin was to be punished by discretionary chastisement rather than
ḥadd
. The same point was cited by Sha‘rānīas a possible argument in favor of the superior gravity of
zinā,
though he himself adopted the contrary conclusion. Another remark by Shaʿris interesting in that it allows a glimpse of a more concrete difference in the respective consequences of
liwāṭ
and
zinā
: “People are not as zealously protective of the male, and do not venture to kill the one who sodomizes him, as they are zealously protective of free women if someone commits fornication with them.”
83
Sodomy might have been considered more reprehensible than fornication by a majority of jurists, but it could very well have been both easier and safer in a premodern, gender-segregated society in which private vengeance was possibly a more immediate threat than state action.
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