The death penalty for homosexual acts is a violation of Shari‘a

o What follows is a brief and updated discussion based on a section I wrote in 2014 in my report published by Penal Reform International as part of an ongoing international campaign to abolish the death penalty. In February 2015, I was invited by the Albert Kennedy Trust in London to discuss Faith and Sexuality. I was joined on the panel by the Rt Rev Alan Wilson (the Bishop of Buckingham, in the Diocese of Oxford), my friend and former student Rabbi Danny Rich (chief executive of Liberal Judaism in the United Kingdom), Stonewall’s Ruth Hunt (who represented the Roman Catholic tradition) and Baroness Barker, Liberal Democrat member of the House of Lords, who chaired the discussion.
The Albert Kennedy Trust provides much needed support to young LGBT aged between 16-25 years old who are made homeless or are living in a hostile environment. After the panel discussion, I was approached by a group of young Muslims, one of whom told me that his devout Muslim friend had contemplated suicide on numerous occasions because he was struggling to reconcile his sexuality as a gay and practising Muslim with what he studied in some Islamic legal texts (fiqh) which prescribe the death penalty for homosexual acts as a form of “atonement” (kafara).
As scholars living in democratic societies, we enjoy the intellectual freedom to critically examine and debate religious texts which produce, disseminate and sustain homophobia, including the legal homophobia in some modern fiqhi interpretations. This important intellectual freedom is denied to fellow scholars living in Muslim countries which apply the death penalty for homosexual acts. Any attempt to challenge the legal status quo on the criminalisation of sexuality is a dangerous exercise that can lead to imprisonment or the death penalty on grounds that one is challenging “divine law”. This precisely why it is important to examine whether such a claim has any foundational basis in Shari‘a itself.

Whatever one’s position as a Muslim is on homosexuality, whether one considers it to be a sin or to be part of God’s diverse creation as argued by LGBTQI Muslims and others whose reading of Quran 49:13 includes and celebrates diversity in sexual orientation,

Unlike the Bible (Leviticus 20:13) which stipulates the death penalty “If a man lies with a male as with a woman”, the Qur’an does not mention any punishment for homosexual acts.

As I will demonstrate in this article, such punishments contravene the Islamic legal principle that hudud laws can only be instituted and applied when derived from and supported by incontrovertible textual sources (i.e. the Qur’an and authentic hadith transmitted through multiple reliable sources). Moreover, many authorities of Islamic law and legal theory from as early as the classical period of Islamic history rejected the application of the death penalty for homosexual acts on grounds that such a penalty had no foundational basis either in the Qur’an or authentic teachings of Prophet Muhammad. A strong case can therefore be made today, from the point of view of the Shari‘a and Islamic legal theory, for the total abolition of such laws.

 

What is meant by hudud?

The term hudud (singular: hadd) refers to forms of punishment believed to be pre-established and mandated in the Qur’an or authentic hadith which can be traced back directly to the Prophet Muhammad. According to many traditionalist Muslim scholars, hudud offences have a fixed punishment because they are deemed to be ‘the most serious crimes’; effectively, offences committed directly against God. This, however, is not the case. There exists no textual evidence from Islam’s primary sources to support this theory. There is no rational way the consumption of alcohol, slander or theft, and other hudud offences, can be deemed to be more serious than murder, for example, which is not classified under hudud punishments but qisas. Moreover, if it is true that they are offences committed directly against God, then they fall under the category of huquq Allah (‘rights due to God’). Islamic theologians and jurists are in almost universal agreement that huquq Allah are less serious than the huquq al-‘ibad (‘rights due to fellow human beings’) since human beings are not quick to forgive those who wrong them, while God says in numerous places in the Quran that he is quick to forgive.

Perhaps it is due to the fact that hudud penalties are not tailored to the offence and there appears to be no room for mitigation that some Muslims have assumed that they are ‘the most serious crimes’ under Shari‘a. Another misconception is that their application is ‘mandatory’. Numerous traditions attributed to the Prophet suggest that this is not the case. For example, in a tradition recorded in Sunan al-Tirmidhi under the chapter on hudud, the Prophet Muhammad said:

“Do your best to avoid applying hudud punishments. If you can find a way out for the accused, let them go. It is better for the ruler to err in granting a pardon than to err in enforcing a punishment.”

(Sunan al-Tirmidhi, Bab ma ja‘a fi dar’ al-hudud).

In another statement (hadith) attributed to Prophet Muhammad, he is reported to have said:

“Avert/reject the institution and application of hudud laws when in doubt.”

Various versions of this hadith were reported and recorded in a number of hadith collections within both the Sunni and Shi‘a traditions, including in Sunan al-Tirmidhi (Hadith No.1424); Al-Shaykh al-Saduq (d. 991 CE) in Man la yahduru-hu al-faqih; Wasa’il al-Shi‘a (28/47/25/34179); Mulla Ali al-Qari’s Sharh Musnad Abi Hanifa (Beirut: Dar al-Kutub al-Ilmiyya, 1985, p. 186). Similar statements were been attributed to senior companions (sahaba) of Prophet Muhammad such as Ali b. Abi Talib (in Al-Shaykh al-Saduq’s al-Muqni‘, an important collection of hadith within the Shi‘a tradition). In his collection entitled al-Musannaf, Ibn Abi Shayba (d. 849 CE) reported that Umar b. al-Khattab, the second caliph according to the Sunni tradition, would always say:

“It is better for me to abolish the hudud than to institute and apply them on the basis of doubtful evidence.”

(Ibn Abi Shayba, Musannaf, Cairo: Al-Faruq al-haditha, 2007, Vol. 9, p. 304.)

A collection of such statements became the foundational basis for the legal maxim in Islamic jurisprudence among both Sunni and Shi‘a jurists that hudud laws can only be instituted and applied when derived from and supported by incontrovertible textual sources (i.e. the Qur’an and authentic hadith). Nowhere should this be more applicable than in the hudud ordinances for zina (adultery and fornication) and homosexuality which form part of the legal system in a number of Muslim countries today. The application of the death penalty for homosexual acts is an example of hudud ordinances derived from and supported by doubtful Islamic sources. The single most important source for the institution of the death penalty for homosexual acts is not the Qur’an but a tradition (hadith) narrated through a solitary chain of transmission and attributed to Prophet Muhammad in which he is reported to have said:

“If you find anyone doing as Lot’s people did, kill the one who does it and the one to whom it is done.”

(Sunan Abi Dawud, Hadith No. 4465); (Sunan al-Tirmidhi, Hadith No. 1456).

This tradition is narrated on the authority of only two of the companions of the Prophet, namely Ibn Abbas and Abu Hurayra. Thus, it is classified as khabar al-wahid, which means a hadith related by a single authority or through a solitary chain of transmission. There are other versions of this tradition attributed to Jabir b. Abdullah (d. 697 CE) and Ali b. Abi Talib. Both were classified as “very weak” and unreliable. Other versions of this tradition do not mention the death penalty or any punishment. None of the traditions attributed to the Prophet Muhammad on this subject was accepted as authentic or “strong”, even by a small group of hadith scholars.

The eminent hadith scholar and jurist Jamal al-Din al-Zayla‘i (d. 1361) provided a detailed analysis of all the chains of transmission of this hadith and cited numerous renowned authorities in the field of hadith such as Yahya Ibn Ma‘in (d. 848), Al-Bukhari (d. 870), Al-Tirmidhi (d. 892), Al-Nasa’i (d. 915), Al-Dhahabi (d. 1348) and others who classified it and all its various chains of transmission as “unreliable”, “very weak”, “inauthentic” and “unfounded”. (See, Al-Zayla‘i, Jamal al-Din, Nasb al-raya: Takhrij ahadith al-Hidaya, Jeddah: Dar al-Qibla, nd. Vol.3, pp. 339-340)
The only scholar known to have classified it as authentic is al-Hakim Nisapuri (d. 1014CE) who recorded it in his collection entitled al-Mustadrak. However, al-Hakim Nisapuri acquired a reputation among hadith scholars as a careless critic of hadith whose verdicts can only be deemed credible when endorsed by the eminent scholar al-Dhahabi. As mentioned above, al-Dhahabi rejected this tradition and classified it as unreliable.

By as early as the 9th century, about two centuries after the death of Prophet Muhammad, hadith scholars were already arguing that the hadith stipulating the death penalty for homosexual acts could not be traced back to the Prophet.

It is therefore very likely that it was invented after his death in order to justify the imposition of capital punishment for homosexual acts. Ibn Hajar al-Asqalani (d. 1449 CE), a specialist in hadith criticism, dismissed it as unreliable in his Talkhis al-habir fi takhrij al-rafi‘ al-kabir (Mu’assat al-Qurtuba, 1995, Vol.4, p.102).
Even the Shafi‘i jurist and scholar from Yemen, Al-Amir Muhammad b. Isma’il al-San‘ani (d. 1789), admitted that the origin, wording and authenticity of the tradition stipulating punishments for homosexual acts were disputed by authorities of hadith (See, Al-San‘ani, Al-Amir Muhammad Ibn Isma‘il, Subul al-salam, Jeddah and Riyadh: Dar Ibn al-Jawzi, nd. Vol.7, p.121)

In his collection of traditions (hadith) entitled Dhakhirat al-huffaz, Ibn al-Qaysarani (d.1113) recorded the tradition:

“If you find anyone doing as Lot’s people did, kill the one who does it and the one to whom it is done.”

He then went on to write:

“It was narrated by Amr Ibn Abi Amr who attributed it to Ikrima who in turn attributed it to Ibn Abbas (a companion of the Prophet Muhammad). However, Amr Ibn Abi Amr is very weak (i.e. very unreliable) as a narrator. It was for this reason that Ibn Ma‘in rejected this hadith.” (Ibn al-Qaysarani, Dhakhirat al-Huffaz, Riyadh: Dar al-Salaf, 1996, Vol.4, p. 2430).

Another key point worth mentioning here which further puts doubt, at least within the Hanafi and Shi‘a Ja‘fari schools of Islamic law, in the validity of citing the above hadith in support of the death penalty for homosexual acts is that it is related by a single authority. In other words, it is based on the word of a single or a handful of narrators who claim to have heard it from the Prophet Muhammad. Such a tradition is called khabar wahid in Arabic which literally means “a report transmitted by a single narrator.” While such a tradition, if verified and classified as authentic, may be used to derive religious teachings on a wide range of topics, its use in hudud cases is highly controversial and disputed since there is still a great possibility that the narrator misheard or failed to accurately narrate what he or she heard. Thus, even assuming that the hadith narration cited in support of the death penalty for homosexual acts is indeed authentic, it would still be invalid according to the Hanafi school of Islamic law to use it to derive and support hudud laws.
It is for this reason that the Hanafi school of Islamic law concluded that although it considers homosexual acts to be a sin, no punishment was specified either in the Quran or authentic hadith. Therefore, homosexual acts should not warrant the death penalty. After citing and discussing the legal maxim that hudud ordinances cannot be derived from or supported by doubtful Islamic sources, the eminent jurist Abu Bakr Ibn Mas‘ud al-Kasani (d. 1191) went on to write in his voluminous seminal work on Hanafi jurisprudence that:

“According to Abu Hanifa, anal sex, whether done with a woman or a man, does not warrant a hadd penalty even though it may not be permissible.”

(See, his Bada’i‘ al-sana’i‘ fi tartib al-shara’i‘, Beirut: Dar al-Kutub al-Ilmiyya, 2003, Vol.9, p. 184.).

However, in spite of the agreement among all classical Islamic jurists that hudud ordinances cannot be derived from or supported by doubtful sources, and the fact that the hadith often cited to support the application of the death penalty for homosexual acts was classified by a majority of eminent hadith scholars and authorities as “doubtful”, unreliable and weak, homosexuality is still a crime punishable by death in a number of Muslim countries today.

Neither the Qur’an nor authentic hadith sources provides incontrovertible and explicit statements on hadd penalties for homosexual acts

Since neither the Qur’an nor authentic hadith sources provides incontrovertible and explicit statements on hadd penalties for homosexual acts, such laws draw upon the personal legal opinions (ijtihad) of some jurists from the Shafi‘i, Hanbali, Maliki and Shia schools of Islamic law. In his famous legal text entitled al-Muhalla, the eminent Andalusian jurist and hadith scholar Ibn Hazm (d. 1064) provided a detailed account of the Shafi‘i, Hanbali, and other jurists’ argument for the death penalty. He then went on to declare that all such arguments were based on unreliable and weak sources and that there exists no single authentic text (nass) or tradition from the Prophet to support the death penalty for homosexual acts. He questioned why some scholars were too keen to institute the death penalty on the basis of such outrageously flimsy and dodgy sources when stronger and more reliable Islamic texts warn against that. (Ibn Hazm, al-Muhalla, Cairo: Idara al-Tiba‘a al-Muniriyya, nd., Vol. 11, pp.380-385).

The Qur’an, hadith literature, and other key Islamic texts emphasise the sanctity of life

The Qur’an, hadith literature, and other key Islamic texts emphasise the sanctity of life, whether it be that of humans or animals, as a core ethical and theological principle. This is an ethical and theological principle shared, though not always observed, by all Muslims regardless of their theological affiliations (e.g. whether Sunni or Shi‘a). Sadly, it is also not reflected in the legal systems of many Muslim countries.

Michael Mumisa is a Cambridge Special Livingstone Scholar at Trinity Hall, University of Cambridge.

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