Homosexuality or homosexuality..Is the jurisprudential perspective deficient? (1)

"Homosexuality" - according to the common name - (or sodomy according to the old term) has become a controversial topic;

For various reasons, perhaps one of them is the multiplicity of approaches to discussing this topic, as well as intellectual, cultural, and even political reasons.

We can highlight here four approaches to discussing the issue of sodomy:

• The doctrinal approach, which is usually reduced to talking about the punishment of the homosexual, and then all the sympathizers with the subject are concerned with arguing about the means of proving that punishment, and whether it is stipulated or not?!

• And the ethical approach, which varies according to the difference in the moral and cultural perspective of each people. Some people are preoccupied with this practice of “abnormality” that is contrary to human nature (such as in general religious perceptions), and some are preoccupied with it as an expression of human freedom and independence in determining what he deems appropriate for him in satisfying his desires and inclinations (perception liberal secular).

• And the legal approach, which focuses on the so-called "gay rights" (or homosexuals), which have become one of the branches of "human rights" according to the Western liberal perspective, which is based on the principle of autonomy.

• And the medical approach, which underwent several developments, eventually led to changing the description of this sexual orientation from being a disease to being a “natural” act.

These four approaches can be reduced to two approaches: the first is a jurisprudential one to which I will dedicate this article, and the second is a multidisciplinary ethical one that I will single out in a subsequent article in which I use multiple approaches to build moral arguments about the position on sodomy and discuss the so-called “gay rights”.

It is not correct, for example, to be satisfied with the legal aspect (worldly punishment) for homosexuality to nullify the importance of considering the psychological and medical level of it. Just as it is not permissible to exploit the old doctrinal controversy about the type of homosexual punishment to normalize with the act of sodomy itself.

Not all indecencies or major sins are subject to litigation, despite them being obscenities

Jurisprudential consideration is a complex view and is not as simple or formal in nature as the unexperienced person might imagine from the legal sources. Others (i.e. the mechanism for extracting and determining the penalty).

In fact, jurisprudence deals with four aspects:

Therefore, we are in front of a complex and comprehensive conception of various dimensions related to the evaluation of the act, the sources of proving its ugliness, the punishment resulting from it and how to prove it. My talk here is based on the rich jurisprudential approach and heritage, although some contemporary muftis may short-sighted; This is a different matter due to a lack of competence of the mufti himself, not to a defect in the approach to jurisprudential consideration, whose details and branches can be found in various jurisprudential sources, and in this sense there is an overlap between jurisprudence and ethics in this subject.

In terms of the method, there is nothing wrong with specialized perspectives, be they medical, doctrinal, or otherwise. Because sciences have functions imposed by their nature, and without respecting these limits, these disciplines have no meaning and there is no longer any specificity for each art of knowledge. But the problem may arise from the point of being satisfied with one specialization in dealing with complex or multidisciplinary issues, or investing one of these specializations to cancel the other. It is not correct, for example, to be satisfied with the legal aspect (worldly punishment) for sodomy; To nullify the importance of looking at the psychological and medical level of it, just as it is not permissible to exploit the old doctrinal controversy about the type of punishment for homosexuals to normalize with the act of sodomy itself; Not all indecency or major sins are subject to litigation. Although it is obscene, it is also not permissible to confuse the recognition of the freedom of individuals to choose the sin (private behavior) with the endeavor to make that sin a moral act and the imposition of its recognition in the public space (pronouncing and making the evil known).In the remainder of the article, I will discuss the four aspects of jurisprudence mentioned earlier.

With regard to the first aspect of correcting the act of sodomy, we find that homosexuality is a reprehensible act, and God Almighty called it in the Qur’an an indecency, as He called fornication an obscenity (and Lot when he said to his people, “Do you commit indecency?” (So ​​fear God and do not be disgraced in my guest), as God said on the tongue of Lot’s people that they resented their Prophet and his family because they (people purifying themselves), so he said: (Expel the family of Lot from your village, for they are people who are purifying) meaning from immorality.

The jurists have agreed that sodomy is forbidden.

Because it is one of the heaviest immoralities, and the Messenger, may God bless him and grant him peace, censured him by saying: “May God curse the one who does the deed of the people of Lot.” He said it three times.

Several hadiths have been mentioned about cursing the perpetrator of homosexuality in the books of Sunan and others, and some of the imams have corrected them, and they are many that support each other, and some of them have reached the limit of moral mutawatir, especially since they are based on a definitive order in the text and known from the religion by necessity.

Moreover, a number of scholars singled out homosexuality by classification, including: Abu Bakr Al-Ajri (d. 360 AH), who compiled a treatise on disparaging sodomy, and Al-Hafiz Ibn Hajar Al-Asqalani (d. Then he said: “Most of it is in condemning sodomy.” He had read it to Fatima bint Muhammad bin Al-Manja on the authority of her elders to Abu Sheikh. Among those who categorized the censure of sodomy was also Abu Muhammad Al-Haytham bin Khalaf Al-Douri (d. 307 AH), who wrote a letter he called “Discrimination of Sodomy and Marawi in Emphasis on and Forbidding It,” and Abu Amr Othman bin Abdullah bin Ibrahim Al-Tarsusi (d. 401 AH), who wrote a letter in “The Prohibition of Sodomy” And Ibn Qayyim al-Jawziyya referred to her in his books, in which Jamal al-Din ibn al-Mubarrad (d. 909 AH) also wrote a letter he called “The Threat of Stoning and Whips for the Perpetrator of Sodomy,” and Muhammad Ibn Tulun al-Dimashqi (d. 953 AH) wrote a letter he called “Tightening the bond in disparaging sodomy.” .

It seems that the classification in denouncing homosexuality continued until a late time. This Abu al-Fadl Muhammad ibn Salim al-Saffarini al-Hanbali (d. 1188 AH) classified his book “Kraa of the Whips in the Suppression of the People of Sodomy”, and we can read in these single works - and I did not count them here - several things:

The first:

that denouncing sodomy was part of preserving public morals that are part of enjoining good and forbidding evil, and to avoid spreading indecency, the spread and openness of which led to the destruction of all the people of Lot.

The second:

The statement prohibiting homosexuality and its ugliness was part of an ongoing scientific tradition, which was not only evident in classification, but in reading these works with chains of transmission linked to their authors, as we saw with Ibn Hajar and others.

the third:

It is not possible to deny the possibility that there is a social and moral need for this repeated classification. The practice of this immorality, even on a small scale, may have prompted these scholars or some of them to the duty to recall the provisions of Sharia in them to narrow their scope and reject them. On the side of the historical practice of this outrageous. Yet neither of these two aspects can be used to negate the other. It is one thing to cite the historical existence of the practice (the descriptive aspect), and to evaluate and condemn it (the normative aspect) is another; The practice remained within the framework of deviation and the commission of obscenity, and it was not normalized with it, unlike the new thing in our time, which is the relentless attempts to remove it from being obscene to considering it a natural and morally recognized act, but rather an attempt to impose its acceptance, and to criminalize its condemnation as well, meaning that there is something like a movement It is a struggle to normalize, publicize, and promote it, which constitutes a struggle over the ethics of the public sphere.

As for the second aspect of the four aspects, which is the weight of the act of sodomy in view of adultery and the justifications for it, the jurists differed as to which is more severe: adultery or sodomy?

Whoever sees that fornication is more severe, he said: Its evils are not achieved the same as in sodomy, and that the scholars agreed on the limit for adultery, while they differed in the limit of sodomy.

And whoever sees that sodomy is more severe, he said: His sex is never permissible, and that it humiliates the males and nullifies their magnanimity.

Imam Siraj al-Din al-Balqini favored the first opinion, while Imam al-Izz ibn Abd al-Salam launched the dispute and did not suggest it.

As for the third aspect, which is the punishment due for sodomy, the sayings of scholars can be limited to three:

The first saying:

that his punishment is the same as the punishment for adultery (flagging for a virgin and stoning for a married woman);

Because sodomy is like adultery, an image and a meaning.

This is the well-known of the two sayings of al-Shafi’i and a narration on the authority of Ahmad ibn Hanbal, and it is the saying of the students of Abu Hanifa: Abu Yusuf and Muhammad ibn al-Hasan al-Shaibani, and the sayings of al-Awza’i and Abu Thawr, and it is the doctrine of the followers such as Saeed ibn al-Musayyib, Ata ibn Abi Rabah, al-Hasan al-Basri, and Ibrahim al-Nakh’i. Qatada.

The second saying:

Ta'zir;

For two reasons: that sodomy is not fornication;

He has a name of his own, and legal names (such as fornication) are not proven by analogy.

And that the original wisdom (adultery) differs from the wisdom in the branch (sodomy);

Fornication spoils the offspring and its motives are certain;

Because it is on both sides, so homosexuality is not attached to him, neither is he nor is he measured against, and this is the doctrine of Abu Hanifa.

The third saying:

stoning is for the subject and the object of it if they are accountable: This is the school of Malik, and a narration from Ahmad bin Hanbal, and one of the two sayings of Al-Shafi’i.

It is the doctrine of the Companions such as Ali bin Abi Talib, Ibn Abbas, and Jaber bin Zaid. Rather, Judge Iyadh, Ibn al-Qassar, Ibn Qudama, Ibn Taymiyyah and others reported the agreement of the Companions on this, and it is the doctrine of some followers such as Muhammad bin Shihab al-Zuhri, Rabia al-Rai and others.

There is no disagreement about the fact that sodomy is obscene and deserving of worldly punishment as well as the hereafter, but the dispute occurred in determining the form of the worldly punishment as you see, and the reason for the dispute in determining it is due to several things:

The first matter:

looking at the evidence from the Qur’an and the Prophet’s hadith. The Qur’an told about the people of Lot in several surahs that homosexuality was permitted and openly, and how their punishment was severe by making their village high and low, and this is only for gross indecency, and the Qur’an called it obscene, and the Prophetic Sunnah described it as “fornication”, and in some narrations the matter was mentioned. Cursing the perpetrators, so the punishment for the perpetrator will be the same as the punishment of the people of Lot (stoning).

While others felt that the punishment is discretionary and can be inferred them to the outlet that went to Abu Muslim Isfahani in the verse: (and who come outrageous from your wives Va_i_hdoa them four of you, it witnessed confine them at home so do claim death or God makes them a way. And who They come from among you and harm them, then if they repent and reconcile, then turn away from them, for God is Forgiving, Most Merciful). He saw that what is meant by (women who engage in indecency from women) are lesbians, and that what is meant by (those who engage in indecency) are men with sodomy and homosexuality. Rashid Rida said: He agrees with the saying of those who said: The punishment for sodomy is punishment, but it includes harm.

The second matter:

their disagreement in fundamental issues related to analogy and the difference in the gender of interest between the measured principle and the measured branch, and does the analogy take place in reasons (such as penetration into a desired vulva, of course forbidden by Sharia) and legal names (such as the words fornication, alcohol, and the like)?

The third matter:

their disagreement regarding the evaluation of the interests and evils resulting from adultery and homosexuality, and the discussion revolves between two sides:

The first aspect: the predominance of the form of the verb, and the consideration of the common destiny between the two verbs in the plural of the form and the general meaning (the penetration into the sexual intercourse of Muharram, of course) regardless of some of the detailed differences that may appear between the two verbs;

because they saw it as ineffective;

Both lead to the corruption of the type by which urbanization.

The second: differentiating between sodomy and adultery; The difference in naming requires a different name and a different meaning, i.e. the gender of interest between adultery and homosexuality. The benefit of the prohibition of adultery is to ward off the prohibition of mixing water and suspicion of lineage leading to the loss of the newborn. As for homosexuality, it leads to the complete absence of childbirth, and leads to the interruption of the offspring of the human race. Hence, the interest in prohibiting homosexuality is to protect oneself from the vice of sexual immorality itself. Because it is obscene and spoil the course and common sense.

As for what is related to the fourth aspect, which is the way to prove indecency and then impose the punishment on the perpetrator, this does not take place - in the doctrinal conception - except within a legal framework that is handled by the judiciary, which is concerned - alone - with monitoring the means of proving sodomy in certain cases, and it is summarized in the confession or testimony, The number of witnesses varies based on the difference of jurists in determining the type of punishment. Whoever counted sodomy as adultery required what he required of adultery, which is four witnesses, and whoever saw that it was a sin without adultery, he required two witnesses only.

Then in the case of counting it as adultery, accusing someone of sodomy without witnesses being available, the limit of slander is achieved.

This is how the dimensions and structure of jurisprudential consideration become clear, and how it includes four aspects: the mandated ruling, the ranks of actions and the balance between them, the general legislative aspect, and the judicial aspect, beyond some narrow or deficient perspectives that may exaggerate a partial of the particulars and make them the expression of jurisprudential consideration.