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.

5 Comments

  • And Allah is certainly most merciful,
    makes sense about how anal sex isn’t punishable by death for heterosexuals, so the same would apply for homosexuals.

    And it also makes sense that past governments used the hadith interpretation to bolster the argument for their own harsh punishments.

    This is what always happens when I see a supposedly barbaric Islamic practice, scratch the surface and I see compassion as the real Islam.

  • Shafiullah says:

    Refutation of your lies against islam :

    al-Tirmidhi (1456), Abu Dawood (4462)and Ibn Maajah (2561) narrated that Ibn ‘Abbaas (may Allaah be pleased with him) said: The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Whoever you find doing the action of the people of Loot, execute the one who does it and the one to whom it is done.”. Classed as saheeh by al-Albaani in Saheeh al-Tirmidhi.

    Ahmad (2915) narrated from Ibn ‘Abbaas (may Allaah be pleased with him) that the Prophet of Allaah (peace and blessings of Allaah be upon him) said: “May Allaah curse the one who does the action of the people of Loot, may Allaah curse the one who does the action of the people of Loot,” three times. This was classed as hasan by Shu’ayb al-Arna’oot in Tahqeeq al-Musnad.

    The Sahaabah were unanimously agreed on the execution of homosexuals, but they differed as to how they were to be executed. Some of them were of the view that they should be burned with fire, which was the view of ‘Ali (may Allaah be pleased with him) and also of Abu Bakr (may Allaah be pleased with him), as we shall see below. And some of them thought that they should be thrown down from a high place then have stones thrown at them. This was the view of Ibn ‘Abbaas (may Allaah be pleased with him).

    Some of them thought that they should be stoned to death, which was narrated from both ‘Ali and Ibn ‘Abbaas (may Allaah be pleased with them).

    After the Sahaabah, the fuqaha’ differed concerning the matter. Some of them said that the homosexual should be executed no matter what his situation, whether he is married or not.

    Some of them said that he should be punished in the same way as an adulterer, so he should be stoned if he is married and flogged if he is not married.

    Some of them said that a severe punishment should be carried out on him, as the judge sees fit.

    Ibn al-Qayyim (may Allaah be pleased with him) discussed this issue at length, and he mentioned the evidence and arguments of the fuqaha’, but he supported the first view. This is explained in his book al-Jawaab al-Kaafi’ li man sa’ala ‘an al-Dawa’ al-Shaafi, which he wrote to deal with this immoral action. We will quote some of what he said:

    Because the evil consequences of homosexuality are among the worst of evil consequences, so its punishment is one of the most severe of punishments in this world and in the Hereafter.

    The scholars differed as to whether it is to be punished more severely than zina, or whether the punishment for zina should be more severe, or whether the punishments should be the same. There are three points of view:

    Abu Bakr al-Siddeeq, ‘Ali ibn Abi Taalib, Khaalid ibn al-Waleed, ‘Abd-Allaah ibn al-Zubayr, ‘Abd-Allaah ibn ‘Abbaas, Maalik, Ishaaq ibn Raahawayh, Imam Ahmad according to the more sound of the two reports from him and al-Shaafa’i according to one of his opinions, were of the view that the punishment for homosexuality should be more severe than the punishment for zina, and the punishment is execution in all cases, whether the person is married or not.

    Al-Shaafa’i, according to the well-known view of his madhhab, and Imam Ahmad according to the other report narrated from him, were of the view that the punishment for the homosexual should be the same as the punishment for the adulterer.

    Imam Abu Haneefah was of the view that the punishment for the homosexual should be less severe than the punishment for the adulterer, and it is a punishment to be determined by the judge (ta’zeer).

    Those who favoured the first view, who are the majority of the ummah – and more than one scholar narrated that there was consensus among the Sahaabah on this point – said that there is no sin that brings worse consequences than homosexuality, and they are second only to the evil consequences of kufr, and they may be worse than the consequences of murder, as we shall see below in sha Allaah.

    They said: Allaah did not test anyone with this major sin before the people of Loot, and He punished them with a punishment that He did not send upon any other nation; He combined all kinds of punishment for them, such as destruction, turning their houses upside down, causing them to be swallowed up by the earth, sending stones down upon them from the sky, taking away their sight, punishing them and making their punishment ongoing, and wreaking vengeance upon them such as was not wrought upon any other nation. That was because of the greatness of the evil consequences of this crime which the earth can hardly bear if it is committed upon it, and the angels flee to the farthest reaches of heaven and earth if they witness it, lest the punishment be sent upon those who do it and they be stricken along with them. The earth cries out to its Lord, may He be blessed and exalted, and the mountains almost shift from their places.

    Killing the one to whom it is done is better for him than committing this act with him, because if a man commits sodomy with another man, in effect he kills him in such a way that there is no hope of life after that, unlike murder where the victim is wronged and is a martyr. They said: the evidence for that (i.e., that the evil consequences of homosexuality are worse than those of murder) is the fact that in the case of murder, Allaah gives the next of kin the choice: if he wishes he may have him executed and if he wishes he may let him off, but He enjoined executing the homosexual as a hadd punishment, as the companions of the Messenger of Allaah were unanimously agreed, and as is clearly indicated by the Sunnah of the Messenger of Allaah (peace and blessings of Allaah be upon him) and there is no evidence to the contrary; rather this is what his companions and the Rightly-Guided Caliphs (may Allaah be pleased with them all) did.

    It is narrated from Khaalid ibn al-Waleed that he found a man among one of the Arab tribes with whom men would have intercourse as with a woman. He wrote to Abu Bakr al-Siddeeq (may Allaah be pleased with him) and Abu Bakr al-Siddeeq consulted the Sahaabah (may Allaah be pleased with them). ‘Ali ibn Abi Taalib had the strongest opinion of all of them, and he said: “No one did that but one of the nations, and you know what Allaah did to them. I think that he should be burned with fire.” So Abu Bakr wrote to Khaalid and he had him burned.

    ‘Abd-Allaah ibn ‘Abbaas said: The highest point in the town should be found and the homosexual should be thrown head first from it, then stones should be thrown at him.

    Ibn ‘Abbaas derived this hadd punishment from the punishment that Allaah sent upon the homosexuals of the people of Loot.

    Ibn ‘Abbaas is the one who narrated from the Prophet (peace and blessings of Allaah be upon him) the words: “Whoever you find doing the action of the people of Loot, execute the one who does it and the one to whom it is done.” This was narrated by the authors of al-Sunan and was classed as saheeh by Ibn Hibbaan and others. Imam Ahmad quoted this hadeeth as evidence, and its isnaad meets the conditions of al-Bukhaari.

    They said: and it is narrated that he said: “May Allaah curse the one who does the action of the people of Loot, may Allaah curse the one who does the action of the people of Loot, may Allaah curse the one who does the action of the people of Loot,” and it is not narrated that he cursed the adulterer three times in one hadeeth. He cursed those who do a variety of major sins, but he did not curse any of them more than once, but he repeated the curse for the homosexual three times. The companions of the Messenger of Allaah (peace and blessings of Allaah be upon him) agreed unanimously that the homosexual is to be executed, and none of them differed concerning that. Rather they differed as to the method of execution. Some people thought that this difference means that they disagreed about executing him, so they narrated it as a matter concerning which the Sahaabah differed, but it is a matter concerning which there was consensus among them, not a matter of difference.

    And they said: Whoever ponders the words of Allaah (interpretation of the meaning):

    “And come not near to unlawful sex. Verily, it is a Faahishah (i.e. anything that transgresses its limits: a great sin), and an evil way (that leads one to hell unless Allaah Forgives him)”

    [al-Isra’ 17:32]

    and what He says about homosexuality (interpretation of the meaning):

    “And (remember) Loot (Lot), when he said to his people: Do you commit the worst sin such as none preceding you has committed in the ‘Aalameen (mankind and jinn)?”

    [al-A’raaf 7:80]

    will see the difference between them. When Allaah mentioned zina, He described it as a “great sin” (faahishah – indefinite) among other great sins, but when He mentioned homosexuality, He called it “the worst sin” (al-faahishah – definite). This suggests that it contains all the essence of evil and sin.

    End quote from al-Jawaab al-Kaafi (p. 260-263).

    Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said: With regard to homosexuality, some of the scholars said that the hadd punishment for it is the same as the hadd punishment for zina, and it was said that it is less than that. But the correct view on which the Sahaabah were unanimously agreed is that both are to be killed, the active and the passive partners, whether they are married or not. The authors of al-Sunan narrated from Ibn ‘Abbaas (may Allaah be pleased with him) that the Prophet (peace and blessings of Allaah be upon him) said: “Whoever you find doing the action of the people of Loot, execute the one who does it and the one to whom it is done.” And Abu Dawood narrated from Ibn ‘Abbaas concerning the unmarried person who commits a homosexual act that he said: He is to be stoned. And something similar was narrated from ‘Ali ibn Abi Taalib (may Allaah be pleased with him). The Sahaabah did not differ concerning the ruling that the homosexual is to be executed, but they differed concerning the methods. It was narrated from Abu Bakr al-Siddeeq (may Allaah be pleased with him) that he is to be burned, and from others that he is to be executed.

    It was narrated from some of them that a wall is to be knocked down on top of him until he dies beneath it.

    And it is said that both should be detained in the foulest of places until they die.

    It was narrated from some of them that he should be taken up to the highest place in the town and thrown down from it, to be followed with stones, as Allaah did to the people of Loot. This was narrated from Ibn ‘Abbaas. According to the other report, he is to be stoned. This was the view of the majority of the salaf. They said: because Allaah stoned the people of Loot, and stoning is prescribed for the zaani by analogy with the stoning of the homosexual. Both are to be stoned, whether they are free or slaves, or one of them is the slave of the other, if they have reached the age of puberty. If one of them has not reached the age of puberty, he is to be punished but not stoned, and none is to be stoned except one who has reached puberty. End quote from al-Siyaasah al-Shar’iyyah, p. 138.

    Secondly:

    The one to whom it is done is like the one who does it, because they both took part in the sin. So both are to be punished by execution, as it says in the hadeeth. But two exceptions may be made to that:

    1 – One who is forced into sodomy by means of beating, death threats and the like. He is not subject to any hadd punishment.

    It says in Sharh Muntaha al-Iraadaat (3/348): There is no hadd punishment if the one who has been sodomized is forced into it, such as if the one who did it overpowered him or threatened him with death or beating and the like. End quote.

    2 – If the one to whom it was done is a minor and has not reached the age of puberty. There is no hadd punishment in this case, but he should be disciplined and punished in a way that will deter him from committing this crime, as stated above in the quotation from Shaykh al-Islam Ibn Taymiyah.

    Ibn Qudaamah (may Allaah have mercy on him) narrated in al-Mughni (9/62) that there is no difference of opinion among the scholars concerning the fact that the hadd punishment should not be carried out on one who is insane or a boy who has not yet reached the age of puberty.

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