How Does Islamic Law Address Same-Sex Relations?

Answered by Shaykh Irshaad Sedick

Question

Is it accurate that the Shafi‘i School holds the punishment for a non-muhsan (unmarried) homosexual, for the act of intercourse, as 100 lashes and one year of banishment, and for a muhsan (married) homosexual, as death?

Answer

In the name of Allah (Most High), and with blessings upon the Prophet (Allah bless him and give him peace),

Your description is accurate, and this is indeed the Shafi‘i School’s theoretical stance on this topic. [Nawawi, Minhaj] However, this theoretical position requires some contextualisation.

The Sacred Law Context

Discussing sensitive topics such as the Islamic rulings on liwat (sodomy) requires a balanced approach, one that acknowledges both the gravity of the matter and the compassion inherent in Islamic Law. It is essential to approach these rulings carefully and understand their context within the broader framework of Sacred Law, which aims to preserve moral order and avert harm.

The severity of Islam’s penal code seeks to deter would-be criminals from committing crimes, thus safeguarding them and society. With the severity of the punishment, however, comes strict, nigh impossible evidentiary standards, thereby drastically limiting the application of the law, and Allah knows best.

Scholarly Difference

The following overview outlines the scholarly opinions on this issue, reflecting the diversity of thought in Sacred Law.

1. Equivalent to the Punishment for Zina (Adultery/fornication):

According to the Shafi‘i School, as well as the Schools of Ahmad Ibn Hanbal, Abu Yusuf, and Muhammad, the punishment for sodomy mirrors that of zina. This means that an unmarried (non-muhsan) individual would be subjected to 100 lashes and a year’s exile, while a married (muhsan) individual could face the death penalty.

2. More Severe than Zina:

This position, attributed to some of the Companions and adopted by the Maliki School, holds that both parties involved in sodomy are to be executed regardless of their marital status. The rationale here is to deter what is perceived as a more grievous sin.

3. Less Severe than Zina:

The Hanafi School leans toward a discretionary punishment (ta‘zir), which could include imprisonment until repentance or death if the act is repeated. The punishment is not fixed but left to the judgment of the authorities based on the circumstances. [al-Mawsu‘a al-Fiqhiyya, vol. 35, p. 340]

The detailed rulings and their evidence can be explored in works such as the Fiqh Encyclopaedia (al-Mawsu‘a al-Fiqhiyya, vol. 35, p. 340) and various fatwa collections, where scholars delve into the complexity and the stringent conditions required for implementing such punishments.

Practical Consideration

While these rulings exist within Sacred Law, their application is governed by strict evidentiary standards, such as the requirement for four male witnesses or a clear confession. This high, and often practically impossible, standard for evidence emphasizes the seriousness of the matter and the need to protect individuals from false accusations.

In contemporary contexts, discussions around implementing these rulings often involve broader legal and ethical considerations. These discussions highlight the importance of justice, discretion, and the societal context. The application of these laws necessitates a formal state structure, including statutes, penal codes, courts, and law enforcement, all operating within the framework of Sacred Law to ensure proper implementation. No one is allowed to take the law into their own hands.

Allah knows best.

[Shaykh] Irshaad Sedick
Checked and Approved by Shaykh Mohammad Abu Bakr Badhib

Shaykh Irshaad Sedick was raised in South Africa in a traditional Muslim family. He graduated from Dar al-Ulum al-Arabiyyah al-Islamiyyah in Strand, Western Cape, under the guidance of the late world-renowned scholar Shaykh Taha Karaan.

Shaykh Irshaad received Ijaza from many luminaries of the Islamic world, including Shaykh Taha Karaan, Mawlana Yusuf Karaan, and Mawlana Abdul Hafeez Makki, among others.

He is the author of the text “The Musnad of Ahmad ibn Hanbal: A Hujjah or not?” He has served as the Director of the Discover Islam Centre and Al Jeem Foundation. For the last five years till present, he has served as the Khatib of Masjid Ar-Rashideen, Mowbray, Cape Town.

Shaykh Irshaad has thirteen years of teaching experience at some of the leading Islamic institutes in Cape Town). He is currently building an Islamic online learning and media platform called ‘Isnad Academy’ and has completed his Master’s degree in the study of Islam at the University of Johannesburg. He has a keen interest in healthy living and fitness.