liwāṭ — English summary

Despite widespread acceptance by (male) society, Islamic juris­prud­ence condemns anal inter­course—and this is the meaning of liwāṭ, not “homo­sexuality,” or “(male) homo­­sexual behaviour”. The Arab con­quest had changed neither the modes of pro­duction nor the patriarchal order or sexual mores of Egypt, Syria, Iraq and Iran. In Hellenistic societies the main gender division runs not bet­ween male and female, and hetero- and homo­­sexual, but rather between pene­trator and penetrat­able (women, boys, slaves, Jews, eunuchs and dancers alike). To penetrate was normal male desire, but to suffer or to allow penetration was shameful, and to enjoy it worse. Islamic law, on the other hand, pre­scribes the death penalty for extra­marital inter­course – with male or female and whether as pene­trator or pene­trated. Consider­ing the sources of Islamic law, this paper reasons that neither the Holy Book nor the most authentic and earliest apost­olic sayings impose a death sentence for sod­omy in this life. But Ismāʿīlīs, Zaidīs, most Ǧaʿfarīs and Šāfiʿīs and many Ḥan­balites punish liwāṭ with the penalty for zinā; the Mālikīs and some Ḥan­balīs and Šāfiʿīs decree the death penalty even for the ġair muḥṣan. Leaving the ġulāt aside, who, if one is to believe Imāmī heresio­graphies, did allow liwāṭ, some viewing it as a way to trans­mit holi­ness, only the rather marginal Ẓāhirīya and most Ḥana­fites argue that there is no ḥadd – they impose only taʿzīr. Although in the classical period some Ḥanafīs believed it to be allowed in para­dise, later the Ḥana­fīya narrowed the gap with the other maḏāhib, either by imposing ḥadd az-zinā, or by removing all con­straints from taʿzīr. As to sod­om­izing one’s slaves, only the Ḥanbalīs were un­ambi­guous in their con­dem­nation. The solution to the tension between societal attitude and the šarīʿa is found in strict require­ments of evidence: together with general rules of moral conduct, the pro­cedural law makes the execution of the death penalty almost impossible – as long as the sinful and shameful acts take place in private and are denied by the per­petrators.