Progressive Muslims: On Justice, Gender and Pluralism (43 page)

Again, al-Rawandi asserts that the “sexual acts” of the people of Lut were acts of violence to drive away strangers, travelers, and those in need. They were not sexual acts expressing a distinct sexuality or even fulfilling the desire for sexual pleasure. They were acts of coercion expressing their miserliness, greed, and rejection of the ethic of care that was the hallmark of the Prophets. Rape is not primarily about sexual acts, pleasures, or relations. It is primarily about power and authority (as recent evidence from the war in Bosnia, involving the rape of women or police brutality cases involving anal rape of men, demonstrates).

This argument can be extended to explain why Lut offered his daughters to the crowd that rushed to his home intending to violate Lut’s guests. Many interpreters have stressed the gender difference between the daughters who were female and the guest-angels who were male, explaining this episode as confirmation that females are the appropriate sex-objects of males to the exclusion of other males. However, this episode can be explained in a different way that highlights the ethics of hospitality rather than the hetero-normative conflation of gender difference with sexual desire.

As the head of a household, Lut had the duty to protect two kinds of people: his kin and his guests to whom he had offered food and shelter. Offers of hospitality were not just a matter of sharing a meal, but also cemented a social

bond including the duty to protect guests from threats in the surrounding community. The people of Lut rejected his prophethood by violating his right to offer hospitality and protection to strangers and visitors. Their attempt to abduct his guests and rape them most graphically demonstrates this rejection. When Lut offers up his family members (who happen to be female daughters) in exchange for his guests (who happen to be male visitors), he displays in most extreme terms the sacredness of protecting guests who are elevated even above the status of offspring. The difference in gender between the female characters in the narrative and the male characters obscures the more important underlying message, that caring for those in need is a sacred duty that overrides the duty to protect one’s own family. How many of us, homosexual or heterosexual, can claim to live up to that ethical principle?

In this way, the genre of Stories of the Prophets acts as a commentary on the Qur’an, beyond the technical limitations of the
tafsir
genre. One could argue that authors of Stories of the Prophets are actually articulating the fundamental ethical principles of the Qur’an better than do the authors of
tafsir
, since they are not confined to grammatical and lexical commentary on each verse. They are freer to compare verses to come up with an intelligible narrative that does not contradict the explicit word of the Qur’anic verses that inform it. Their goal is to present each Prophet as a character who upholds ethical values in the face of rejection and opposition by their community, ethical values that can and should inform the Muslim community that strives to follow the whole line of Prophets.

JJ UU RR II SS TT SS ,, SS EE XX UU AA LL AA CC TT SS ,, AA NN DD

LL UU TT ’’ SS PP EE OO PP LL EE

There is an instructive contradiction here. In populist religious discourse (
muwa‘iza
), sexual acts between men are always condemned in reference to the people of Lut. However, in juridical discourse, there is nothing in the Qur’anic verses about Lut on which to base legal rulings. Jurists refer to Lut’s people only rhetorically, not juridically. As short-hand, they call the act of penetration of a penis in another’s anus “the act of the people of Lut.” To construct legal rulings about this act, jurists rely on either
hadith
or, more often, reports of the decisions of the early followers of the Prophet. It is to this body of textual sources for the law they we must now turn.

Let’s look closely at commentaries on the Qur’an that were written by jurists. Their concern was not to give a semantic or thematic analysis of the Qur’anic discourse, but rather to give legal rulings for the ordering of society. Their commentaries were meant to highlight those Qur’anic verses from which legal rulings could be deduced. Jurists were concerned with acts rather than intentions, and they focused rather obsessively on the act of anal intercourse between men. While gay men can rightly protest that anal sex is not the definitive feature that characterizes them, and many gay men do not practice anal penetrative sex at all, it is the case that this is how the Islamic juridical

tradition pictured all same-sex desire.
55
It will become clear that jurists in the classical period did not reach a consensus about the legal status of anal sex between men. It will become even clearer that they did not even address something called “homosexuality” in the abstract. The jurists argued over how to understand the term
fahisha
in the Lut story, and whether it was, in legal terms, equivalent to
zina
or sexual intercourse between a man and a woman who are not related by marriage, contract, or ownership.

Let’s begin with al-Qurtubi, a Maliki jurist who died in 1273
CCEE
. He wrote a detailed commentary on the Qur’an, and tried to argue that anal sex between men was a
hadd
crime requiring capital punishment. A
hadd
crime (pl.
hudud
) is a crime that is explicitly defined in the Qur’an and for which specific punishment is demanded in the Qur’an. There are five crimes with
hadd
punishments that are explicitly mentioned in the Qur’an: murder, highway robbery, theft, adultery between a man and a woman, and false accusation of adultery. Al-Qurtubi argues that anal sex between two men is also a
hadd
crime, even if this is not explicitly stated in the Qur’an, since this sexual act is the legal equivalent of
zina
.
Zina
is an act of sexual penetration between a man and a woman who are not joined by a contractual relationship or marriage, and the punishment for
zina
, under certain legal conditions, is death by stoning. To make this argument, al-Qurtubi lines up a series of assertions, all of which are open to question and critique.

In the Qur’an, Lut says to his community, “Do you approach the transgression [
a ta’tuna al-fahishata
]?” In the commentary on this verse, al-Qurtubi gives a classic example of interpretation by substitution. He is unconcerned about the semantic range of the term
fahisha
or whether it is related to wider themes. Rather, he defines the word
fahisha
in juridical terms, by substituting it with a phrase that is explicit.

Do you approach the transgression
means “sexually entering males” [
idkhal al-rijal
]. Allah mentions this act with the term
the transgression
[
fahisha
] in order to make it clear that this act is adultery [
zina
]. It is just like Allah’s statement in another verse,
Do not approach adultery
[
zina
]
for it is a transgression
[
fahisha
] (Surat al-A‘raf 7:80–84).
56

In classical Islamic law, the
hadd
punishment for adultery is either lashing (if the person is unmarried) or stoning to death (if the person is already married). This is the punishment that al-Qurtubi argues should apply to men who have anal sex with a man. He argues this despite the fact that the Qur’an does not specify this as a
hadd
crime and the Prophet Muhammad does not give any explicit example of having applied this punishment to the act in question. By offering a definition (substituting “entering males” for “transgression”) and an analogy (sexual penetration of an unmarried man by a man is equal to sexual penetration of an unmarried woman by a man), al-Qurtubi argues that this juridical decision is in reality nothing but a simple “reading” of the Qur’an.

One could argue with al-Qurtubi that his reading of the Qur’an is not just simple, but also erroneous, limited, and misleading. His reading is not attentive to grammatical subtlety or narrative context. In the verse that communicates Lut’s prohibition
al-fahisha
comes in the defi nominal form, “the transgression,” whereas the verse about adultery mentions
fahisha
in the indefinite nominal form “transgression.” This suggests that transgression is a general category including many different specific kinds of acts; one could speak of the particular transgression in specifying an act or one could speak of transgression in general to imply a whole range of acts that transgress the boundary of decency, righteousness, or legality. Not every term mentioned as “transgression” would be equivalent, morally or legally or punitively. In fact, the Qur’an often uses the term “transgressions” (
fawahish
) in the plural in the narrative sections about Lut and his conflict with his community. One would have to ignore grammar and narrative context to draw the one-for-one equivalence that al-Qurtubi has done.

Al-Qurtubi is quite bold about doing this, and insists that he knows Allah’s intention in using particular terms. However, al-Qurtubi cannot deny that other jurists have read the same passage and come to different conclusions. He admits that “jurists have differed amongst themselves over the exact punishment for this [anal sex between men] after they have come to consensus on forbidding it.”
57
The Maliki and Shafi‘i jurists insist that anal sex between men is a
hadd
crime punishable by death. This contradicts the Hanafi jurists, who argue that although it is an immoral act and is forbidden, it does not qualify as a
hadd
crime. Hanafis insist that there should be no punishment of death but rather the government authorities can punish the act as they think appropriate. As a Maliki jurist, al-Qurtubi quotes Imam Malik, for whom two contradictory judgments have been recorded: one says “He should be stoned [to death] whether he is married or unmarried,” while the other says, “He should be stoned if he is married and disciplined if he is unmarried.” Despite the contradiction, both judgments interpret anal sex between men as a
hadd
crime, equivalent to
zina,
or adultery. Imam al-Shafi‘i’s judgment makes this explicit in ways that Malik leaves implicit when he is reported to have said, “He should be punished with the
hadd
penalty to adultery
by reason of juridical analogy
.”

There is a deep problem here for those who advocate capital punishment for anal sex between men. It is primarily countries that follow the Hanbali legal method (or countries ruled by fundamentalists influenced by Hanbalism) that make a state policy of executing gay men. Hanbalis are a tiny minority in the Islamic world. Only Saudi Arabia is an officially Hanbali state, though fundamentalist regimes in Sudan, Pakistan (under General Zia ul-Haqq), and Afghanistan (under the Taliban) have been overtly influenced by Hanbali dogma. Hanbalis follow Shafi‘i juridical positions in regard to anal sex between men, though they degrade legal reason and analogy and advocate capital punishment as a “literal” reading of the Qur’an itself.
58
The state of Iran (since

the Islamic Revolution in 1978) also has a state policy of executing gay men, which they justify through the Shi‘i Ja‘fari legal school. Though Shi‘i Iranians are usually quick to distinguish themselves from their Sunni neighbors, in the case of execution of gay men the Iranian legal arguments parallel the Hanbali arguments. All these states argue (along the lines described by al-Qurtubi) that homosexual men are exclusively characterized by anal sex, which, they claim, is a crime with a “
hadd
penalty.” It is unclear whether any of these contemporary states in practice apply the legal conditions that limit
hadd
cases, such as observation of the actual act of penetration by four adult male witnesses.

Hadd
penalties are, by definition, those penalties described explicitly by the Qur’an itself. Jurists are not supposed to exercise legal reasoning and analogy in cases of
hadd
penalties. Al-Qurtubi, we noted above, had to resort to legal reasoning and analogy to argue that anal penetration between men was a
hadd
crime, since the language of the Qur’an is not explicit and exact in this case. Hanafi jurists were keenly aware of this problem, and argued that anal sex between men could not justifiably be considered a
hadd
crime.

The punishment for adultery [
zina
] is known [from the Qur’an explicitly]. Since this act is known to be different [in nature] from adultery, it should not be treated as a hadd crime equivalent to adultery

. . . This act is a kind of sexual intercourse in a bodily opening that has no relation to legal marriage and does not necessitate giving a dowry or determining parentage [as adultery does]. Therefore it has no relation to the hadd punishment for adultery.
59

The Hanafi jurists mounted a strong case against the Malikis, Shafi‘is, and Hanbalis (and also, implicitly, the Shi‘is), and accused them of applying a
hadd
penalty for an act that was not defined in the Qur’an as a
hadd
, thereby committing a grave injustice.

In his juridical commentary on the Qur’an, the Hanafi jurist al-Jassas (who died in the tenth century
CCEE
), addresses this issue. He argues that the Qur’an specifies a
hadd
punishment of death by stoning for adultery between a man and a woman and in this specificity the punishment applies only to adultery (not to anal sex between men or other types of sexual acts). He argues this position with two
hadith
attributed to the Prophet. “Whoever applies a
hadd
penalty to a crime that is not a
hadd
crime has committed injustice and oppression” and “The blood of a Muslim is not liable to be shed, except in these three cases: adultery after marriage, infidelity after adopting Islam, and murdering an innocent person.”
60
He acknowledges that certain
hadith
were in circulation, attributed to the Prophet Muhammad, that men found “doing the act of the people of Lut” should be killed. However, he notes that these reports have weak chains of transmission containing unreliable transmitters, and therefore cannot form the basis for a juridical decision to put a Muslim to death.
61