"Liwāṭ" im "Fiqh": Männliche Homosexualität?

Abstract

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 Ismaʿīlīs, Zaidīs, most Jaʿfarīs and Shāfiʿīs and many Ḥanbalites punish liwāṭ with the penalty for zinā; the Mālikīs and some Ḥanbalīs and Shāfiʿīs decree the death penalty even for the ghair muḥṣan. Leaving the ghulāt 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 sharīʿa 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.