Really the only way I can commemorate the Supreme Court’s Obergefell decision without looking like a complete idiot by blabbering on about something I know nothing about (seemingly not a problem for all too many commentators on television) is with a post on Islamic law and homosexuality. Specifically, I was reading a fascinating book by Christian Lange entitled Justice, Punishment and the Medieval Muslim Imagination (available for rent on Kindle for I think $8) and specifically its section on the treatment of homosexuality by premodern Hanafi jurists. To lay out the groundwork, the basic issue is that Islamic law clearly proscribes fornication, and establishes for it a severe punishment (80 lashes for one who has never been married, stoning for one who has). The evidentiary requirements are extremely high (four witnesses have to witness the act of sex itself), so the issue is not so much about realistic enforcement, so much as it is about making some sort of definitive, unchanging , and rather absolute statement about the deep abomination that nonmarital sex is supposed to represent.
Given that, precisely what qualifies as falling within the crime itself is of some importance, whether or not enforced. And the definition, within its terms, of “fornication”, was penetration of a penis by a vagina. Now for those Sunni schools that employed analogical reasoning, it was not hard to extend this to include nonmarital anal sex (which would within the contemplation of the premodern jurists mean all homosexual sex). The problem for the Hanafis is that they did not accept analogical reasoning in the context of the scriptural crimes. (Why they took that position is beyond the scope of this post). So, you might think, then homosexuality is not subject to the same punishment as fornication, right? Actually, the Hanafis were split. Some came down in that direction precisely, and Lange focusses some attention on that with justification, as it is rather remarkable that historically, there was a major Sunni school that did not think that gay sex merited automatic punishment while straight sex did, unless it was marital (or male master to female slave, but I’ll leave that aside for now).
What interests me more is the Hanafi faction that endorsed treating homosexuality like fornication. How to get there if you don’t have analogy to make use of? One way, which is the Shi’a way (Shi’ism does not have analogy either), is through finding a separate scriptural crime that penalizes fornication. In other words, even if it’s not fornication (zina in Arabic), it’s a separate crime the Prophet punished called liwat. One of the most fascinating things Lange reports is that the Hanafi jurists rejected this,and this was the position even among those who supported rendering same sex relations a crime.
That is to say, they did not believe there was any reliable authority pursuant to which the Prophet ever declared homosexual sex to be a crime worthy of punishment. A sin, yes, but a punishable crime, no. That is not the Shafi’i position, and it’s certainly not the Shi’i position (more will appear on that in an article I’m writing on the regulation of sex in Shi’i Islam, still in draft form).
Then there’s the idea that the word fornication somehow includes anal sex. I don’t think I follow this particularly well, it makes no sense to me at all, but fortunately, this is not where the real dispute lies anyway, so we move to the main point upon which folks like Shaybani and Abu Yusuf relied in asserting the claim that the obligatory punishment for homosexuality was death. While the word zina didn’t mean it literally, it had the same semantic coverage dalala, and hence it fit within the rubric of the crime of fornication. So not “analogy”, but “semantic meaning.”
And to this point I’m more or less reciting Lange’s arguments as well as I can, perhaps more reductively than is deserved, but it is here where my Realist sensibilities kick in and, reviewing just one or two of the sources cited, I start to scoff. Where Lange might earnestly relay the two sides of the Hanafi school, and their bases, I found nothing really of importance in this theoretically rich conceptual dispute. What in the name of the Holy Prophet does “semantic meaning” even signify? Somehow it’s supposed to mean, it seemed from the accounts I had seen, Kasani mainly, something broader than literal meaning, but not analogy, where the meaning is different, but the purpose of the prohibition is the same. To a conceptualist or a formalist, maybe that makes sense. One is, if one believes in the Brooding Omnipresence of the Law, identifying three independent ethereal concepts. One is a literal meaning. One is some sort of penumbra (let’s totally use that word on Obergefell day) which is semantic meaning, and one is outside the penumbra, but serves the same purpose as whatever word we’re looking at interpreting, and that, I guess, is analogy. Zina is vaginal sex literally, anal sex semantically and, I don’t know, oral sex by analogy?
The problem is that in the real world, if you actually have to answer real questions, it’s pretty hard to convince me that anyone is going to be able to keep the second and third concepts straight. They are part of this rather fuzzy and indeterminable dare we call it transcendental nonsense that somehow is supposed to have meaning on earth. Except it cannot, and what will happen, indeed what must happen, is that whatever a given judge, or jurist, does not like, they can merely claim is subsumed with the semantic meaning of some prohibition or other, and whatever they do like, lies outside of it.
So here’s my read: The faction that wanted to include homosexual sex within the prohibition against fornication despised gay people. Whatever their other considerable talents and contributions to Islamic law, and let’s credit those, they were deeply and fundamentally homophobic. (People tell me Thomas Jefferson was too when I say that. Okay? Not sure of the relevance of that, other than further demonstration of the rather silly defensiveness that infects all too much of the Muslim world). So there simply is no way that faction was going to leave the question of whether or not the idea of anal sex between two men is punishable to a caliph, if in the mood to do so. That’s the conclusion of the other faction. So the super anti gay faction was a little constrained. They could just credit reports of Prophetic punishment, but that has broader implications (credit some traditions on some bases, you have to start to credit others,and that changes more than one might expect). Say analogy is acceptable in the scriptural crimes, and you more or less cede the ground to the groups attacking you for refusing to do that before. So make something up, called “semantic meaning” and get the idea across, that we are obligated by God to kill homosexuals (when impossible evidentiary standards are met, but again, the matter is ethical) even though we don’t actually have anything saying we have to.
Hey, you might say, if you believe the pro kill side was affected by their homophobia, then why wouldn’t you as a Western educated Muslim living in Pittsburgh be similarly affected in the other direction? How do I know you’re not just as driven by ideological preferences as they are, and that’s why you dismiss semantic meaning as mere artifice and invention designed for the purpose of declaring homosexual sex worthy of death?
My answer to that is that may very well be right. My problem is not that my views are nonauthoritative. My problem is that we treat the doctrine far more authoritatively than we should, as the product of some highly refined form of reasoning that is so theoretically intricate and conceptually rich that it cannot possibly be criticized as the product of ideological and political bias. That’s the mistake.