很好的一篇文章，該文從穆斯林歷史、伊斯蘭法學原則、穆斯林宗教學者論點、當前美國穆斯林民意調查多重角度，解讀同性戀議題。
從這篇文章可以得知，所謂教法與國法之爭，又是一套東方主義者的無知論述。
因為只要非穆斯林政府沒有限制穆斯林宗教自由，穆斯林必須有遵守當地法律的義務。這讓我想到對岸的「清真」立法議題。
Jonathan
Brown
In recent days there has
been much debate over Islam’s position on homosexuality. Anyone who has read any Persian poetry, read a forthright travel
guide to the Gulf or heard Pakistanis or
Afghans joking knows that same-sex attraction and activity has not
been unusual in Muslim societies.
A wealth of top quality
scholarship has demonstrated that Islam, Muslim societies and the
Shariah tradition did not conceive of ‘homosexuality’ as an identity. But they
did acknowledge that same-sex attraction occurred, often for ‘natural’ reasons (e.g. it was considered normal for men to be attracted to
beardless youths, who shared feminine beauty).
It is only specific actions, such as sodomy (in Arabic, Liwat)[1],
that show up on the Shariah radar as sins or punishable offenses. It is not same-sex attraction or desires that the Shariah
prohibits. It is acting on them.
In the wake of the Orlando
shooting, however, Islam’s disapproval of same-sex acts has come under renewed
scrutiny. Some critics have argued that any disapproval of homosexuality is
homophobic, and that any indulgence of homophobia lays fertile ground for
violence against the LGBTQ community. Others have made more specific
objections, namely that the death penalty for sodomy (Liwat) in the Shariah
creates a particularly slippery slope towards violence against gays. If the
Shariah prescribes death for homosexuality, they contend, then wasn’t the
Orlando shooter just executing God’s will? Isn’t that a huge problem?
Disagreement over the Punishment for Sodomy
in the Shariah
In response, some Muslim scholars have presented arguments that, though certain
same-sex actions are prohibited in Islam, there is no death penalty
for homosexuality in the Shariah.
The problem with this argument, however, is that, far from uncovering a popular misconception about Islam
or discovering some long-hidden true teaching of the religion, it simply reproduces millennium old debates within the Shariah
tradition. Yes, the main position in the Hanafi school of
law for many centuries was that someone convicted of sodomy (which in all the schools required four witnesses to the act of
penetration) was not executed but only given
a milder punishment or perhaps only disciplined by a judge. But the other three Sunni schools
of law did consider sodomy to be a death-penalty offense (at the very least for the active partner). This disagreement exists because of how different schools of
thought in the Shariah weighed evidence from the Quran and the Prophet’s
precedent and how they interpreted it. For
the schools of law that upheld the death penalty for sodomy, their evidence was 1) several
Hadiths of the Prophet in which he states that those who commit ‘the act of the
people of Lot’ should be killed, the main one being the Hadith of Ibn ‘Abbas[2]; 2) an analogy between sodomy
and Zina (heterosexual fornication or adultery), which was often punishable by
death; and 3) the rulings of many Companions of the Prophet and other early
Muslim scholars.
The Hanafi school differed with
this position because 1) the school did not permit declaring something to be a
Hudud crime (see below) by analogy
(sodomy might be analogous to Zina, but God and the Prophetﷺ
had commanded Muslims to seek the most minimal possible application of Hudud
laws, so extension by analogy was indulging) [3]; 2) Hanafis argued that the
Hadiths asserting the death penalty for Liwat were of debatable authenticity[4]; and 3) there was far too much
disagreement over the proper punishment for sodomy amongst early Muslim
scholars to suggest that death was the clear conclusion.[5]
Respecting the Law of the
Land
There is another problem
with the ‘no death penalty for homosexuality in Islam’ argument in the context
of debate since the Orlando shooting. Although there has been great
disagreement amongst Muslim scholars over the appropriate punishment for Liwat
in Islam, there has been no disagreement over Liwat being prohibited in Islam.[6] So the objection of critics
remains: Islam’s disapproval of same-sex acts is homophobic, and homophobia is
a slippery slope towards violence against gays. (攻擊伊斯蘭的論述)
Lost in this discussion is
something that should be obvious to everyone: your personal morality is not the
law, and you don’t take the law into your own hands. Regardless of what law one
lives under, it is the job of the recognized organs of justice to apply it. Regardless of how vile you consider an act to be, it is the law of
the land that determines if that act is a crime and what its punishment should
be.
According to the Shariah,
Muslims living in the West (or other non-Muslim states) are essentially
visitors from the perspective of the sacred law. The standard definition amongst Muslim scholars for the Abode of
Islam (Dar al-Islam) was those lands where the Shariah reigns.[7] Muslims outside that
space reside in lands and countries as guests of whatever legal or religious
system reigns there. If the law of the land were to prohibit Muslims from
carrying out a duty required by the Shariah, such as prayer, or require them to
do something clearly forbidden in Islam, such as drinking alcohol, the standard
opinion amongst classical Muslim scholars was that Muslims could no longer
reside there (a second opinion was that they should remain so that the religion
of Islam would not vanish there). Otherwise,
Muslims must respect the law of the land.
Their decision to reside in those lands represents their agreement to a
contract with the governments ruling them. As the Quran commands Muslims, “be
true to your agreements” (Quran 5:1), and as the Prophetﷺ taught,
“Muslims are bound by the conditions [of their agreements].”[8] The Shariah continues
to govern Muslims’ private worship and whatever areas of law the local system
leaves open (such as contracts, inheritance and marriage in the US), but Muslims must respect and abide by the restrictions, duties and
regulations placed upon them.
'Kill the one who has
committed sodomy' & The Rule of Law in the Shariah
How do Muslims reconcile the
principle of the rule of law with the commands of their sacred scriptures? The Quran echoes the Bible in its tone regarding justice. ‘A
life for a life, an eye for an eye…’ (Quran 5:45) has an immediacy about it, as
does the Prophet’s Hadith (contested, as mentioned above) ‘Whoever you find
committing the act of the people of Lot, kill the active and passive
partners.’ Aren’t commands like this directed at us as individuals?
This question was posed to the
most famous scholar of thirteenth-century Cairo (and Damascus, for that matter). Ibn ‘Abd al-Salam was asked
whether a person who had committed a grievous crime or mortal sin was allowed
to take the law into his own hands and kill himself. The answer was no, ruled the
scholar. If the person wants to be
punished, he should confess before a judge so that he could be dealt with ‘in
the legal manner (‘ala al-wajh al-shar’i).’
Scriptures like the Bible and the Quran address mankind at the level of
conceptual default, as individuals unmediated by governments. At that level,
Ibn ‘Abd al-Salam explained, it was indeed individuals who sought justice for
wrongs done them, who exacted ‘an eye for an eye.’ But, he continued, the Shariah delegated this power and role to
governments because of the serious risk of abuse.[9]
This became the standard
position of Muslim scholars regarding punishing people for the Hudud crimes as
well as for handling crimes like murder.
In the Hanbali school (my school), the position has
been clear: “For us the principle is delegating the Hudud to the authority
(imam), because it is right of God, so it should be delegated to His deputy [on
earth].” (個人無權執行刑罰) A later Hanbali scholar explains that this is because
enforcing such laws “requires exercising discernment and reason (ijtihad)” to
make sure that justice is being done.[10] In the case of murder, the family of the victim has a God
given (even natural) right to see justice done and to see the killer punished. But if a family
member kills the murderer himself, without permission from the ruler or judge,
he can be seriously punished.
If someone kills the murderer when the judge has explicitly ordered they not be
touched, then the vigilante will themselves be charged with murder. There can
be no execution of a murderer, even one whose guilt is known, without
permission from the ruling authority (these are examples from the Hanafi and
Shafi schools of law).[11] As summed up by the late, great Muslim jurist Wahba al-Zuhayli,
“It is an agreed upon principle that applying the punishments of the Hudud and
Qisas (eye-for-an-eye crimes) as well as other discretionary punishments falls
under the special purview of the authorities (imam).”[12]
How Was Homosexuality Dealt with in
Pre-Modern Islamic Civilization?
The short answer is that it
wasn’t. Like a DEA agent watching a Keith Richards interview, the guardians of the Shariah (judges, concerned scholars, market
police, etc.) turned a blind eye to the private lives of the populace. Thus, despite the endless production
of poetry extolling the beauty of young boys, instances of people being
punished for Liwat are exceedingly rare
(I have only come across a few examples in Islamic history). Of course, Muslim jurists knew that homosexuality existed all
around them. And they disapproved. As Ibn ‘Abd al-Salam wrote, people only seem concerned about sins
if they were socially rejected, not if they were objectionable to God. People were mortified by eating in public during Ramadan, he
complained, but they saw no problem with ubiquitous sodomy.[13] (感覺罪惡感是社會壓力 還是真的對真主感到愧疚)
Why this dissonance between
the rules of the Shariah and their application? This dissonance only
existed for the Hudud crimes, those ‘Limits of God’ whose punishments had been
laid out clearly by the Quran and the Prophet’s precedent
(adultery/fornication, sexual slander, certain kinds of theft, intoxication,
apostasy from Islam and banditry/violent robbery). Though some of these crimes
were grave threats to public order (e.g. banditry, theft), and others included
violations of the rights of other members of society (e.g. slander), what unified the Hudud crimes was that they were also seen as
transgressing the ‘rights of God.’ They were particularly offensive to
Him. But because God is most merciful, the Quran and the Prophet’s teachings
made it almost impossible to actually punish someone for one of the Hudud
crimes. The Quran ordains that the punishment for fornication is 100
lashes, but it also requires four witnesses who saw penetration occur to prove
it (the Quran adds that, if someone makes this
accusation without four witnesses, s/he is punished with 80 lashes for slander)
(Quran 24:2-4).
Furthermore, in a
commandment that has been central to the application of justice in Islamic
history, the Prophet ordered judges to “Ward off the Hudud from the Muslims
as much as you can, and if there is a way out for [the accused] then let him go. For it is better for the authority to err in mercy than to err
in punishment.” Muslim jurists encapsulated this rule in their maxim ‘Ward
off the Hudud by ambiguities (shubuhat),’ compiling vast lists of all the
procedural technicalities by which Hudud punishments could be set aside. For
example, if a thief stole an item below a certain value, or from an unsecured
location, or if the thief simply denied he’d stolen it, he could not be
punished with the Hudud punishment of having his hand chopped off (see the appendix for a list of the ones for theft). That does not mean that the thief would escape punishment.
His crime would simply drop from the Hudud-level theft (sariqa) to a lower
level of theft, which was punishable by a duty of restitution and perhaps a
punishment like a year in prison. Since the majority of Sunni schools of law
considered Liwat to be an extension of the Hudud crime of Zina, the same
procedural safeguards applied.
If there was any ambiguity, the
Hudud punishment would not be applied.
As with the Hanafi school’s ruling on Liwat, dropping the Hudud punishment
didn't mean that the guilty party was not punished. But the punishment would be
much less severe.
Beyond the general caution
with which Hudud crimes were punished, there
was also a widespread cultural acceptance of same-sex attraction in Muslim
societies. Muslim scholars and judges agreed that Liwat was a grievous sin,
but it was too widespread not to treat it with humor. And appreciating male beauty was not unknown to them. A
thirteenth-century scholar visiting Cairo from Bukhara would play on his own
name and the famously strict criteria that the great Hadith scholar al-Bukhari had for evaluating the
soundness of Hadith. When this scholar saw a handsome boy he would say, ‘This
is sound according to the criteria of al-Bukhari!”[14] An influential
ninth-century Sunni scholar and chief judge of Baghdad was well known for
delighting in encountering handsome young men – and writing poetry about it -
to the extent that a critic devoted a whole poem to “a judge who would apply
the Hudud punishment for adultery but who sees nothing wrong with Liwat.”
But all of this was just fodder for the judge’s banter with the caliph during
their meetings.[15]
The Red Herring of
Intolerance in Pluralist Societies
In an interview the other
day, I was asked if Islam’s position on same-sex sexual acts meant that Muslims
could not live in the West. That question is very odd if you think about it. There are lots of features of life in America that Islam (and
Muslims, presumably) disapproves of: drinking alcohol, premarital sex, eating
pork, wearing revealing clothing, the list could go on. Intoxication is a Hudud crime
in the Shariah, punishable by eighty lashes, and premarital/extra-marital sex
is condemned as severely as sodomy.
Yet
there is no appreciable evidence that Muslims seek to carry out the Hudud
punishments for these acts in the US.
In fact, Muslims live around such practices every day in the US without
incident. Despite Donald Trump’s claim that Muslims have failed to integrate
into American society, they seem quite willing to
accept the plurality of American lifestyles and even to stand up for the rights
of other Americans to hold beliefs Muslims might not share. A recent Pew survey
shows that 45% of Muslims in the US say homosexuality should be accepted by
society (vs. only 36% of evangelical Protestants).
Although I’d hesitate to
trace this feature of the Muslim community to some strain in Islamic history,
it’s hardly surprising that Muslims would have this attitude. In classical Islamic civilization, Muslim authorities allowed
Zoroastrians to engage in brother-sister marriage, Jews to charge interest, and
Christians to cultivate wine and pigs.
Muslim judges could even hear such cases brought by non-Muslim litigants by
applying the laws of their respective communities instead of the Shariah.[16] Tenth-century rabbis in
Baghdad acknowledged that Jews were settling their divorces and registering
properties in Muslim courts, and Muslim scholars in fourteenth-century Damascus
figured out how a Muslim judge was supposed to appraise the value of a
Christian’s wine stock (either by its value in a sales contract or by its grape
juice equivalent).[17]
Towards the end of his
Social Contract, Rousseau asserts, “It is impossible to live at peace with
those we regard as damned.” Translated into our time, his rule might read
‘It’s impossible to live in peace with those whose core identities you refuse
to validate.’ This is the assumption underlying one school of thought
about tolerance in liberal societies (you
might call it the ‘don’t judge’ school).
At its base it’s both principled (can you really treat as equal citizens those
of whom you profoundly disapprove?) and practical in an instrumental sense
(teaching children that judging others is wrong is the best way to shape a
peaceful society). And this assumption provides the basis for the position that
any moral or religious disapproval of homosexuality is a dangerous impediment
to the LGBTQ community receiving equal rights and enjoying security in a
society.
But Rousseau’s rule is also
simply wrong in the context of American society. It’s flawed in principle
because it unduly restricts freedom of conscience and religious belief; it’s
not uncommon for religions to teach that non-adherents are damned and
misguided, and it’s very hard to maintain a belief in a code of ethics and
rules if you can’t disapprove of those who violate at least some of them. In a
society filled with diverse, sometimes polar opposing views on religion,
politics, lifestyle, etc., forcing uniform approval or mutual validation from
all parties would leave few belief systems, political positions or worldviews standing.
Rousseau’s rule is also
empirically wrong in the American context. Americans have lived and continue to
live side by side with fellow citizens whose beliefs and lifestyles they
deplore. As a Muslim, everyday I encounter (in fact, am related to) people who
think it’s absurd to believe in God, idiotic to believe in Islam, and barbaric
to uphold Muslim values. Being a believing Muslim is core to my identity, but demanding that
everyone else consider my views morally or metaphysically valid would be absurd. One might object that being gay is not a choice, while being
religious/Muslim is. But being religious might well be genetically
determined (can we be so sure it’s not?). Furthermore, a central premise in the
argument for recognizing transgender identity is that it is a person’s
subjective understanding of their own identity, not their objective biological
features, that we should validate. Saying that my religiosity is any less core
to my identity than my sexuality is to privilege a narrow conception of both
these aspects of identity, and it’s precisely such imposition that the LGBTQ
movement opposes.
In pluralist societies like
the US, people have dramatically different beliefs and worldviews. They might
even consider those who don’t share them to be morally deficient or even less
than human (see current presidential election sloganeering or right wing
invectives against President Obama for the past 7 years). Given all the diversity of belief systems and worldviews held by
Americans, it is totally unrealistic to propose eliminating all their aspects
of disapproval or condemnation. It
is much more feasible to emphasize that moral disapproval or religious condemnation
cannot be allowed to violate the rule of law that safeguards us all.
The Orlando Shooting and
Muslims' Stance on Homosexuality in America
We often hear the question ‘What’s wrong with Islam, that so many
Muslims are terrorists?’ The obvious answer: there is nothing wrong with
Islam that makes Muslims terrorists, since the percentage of the world’s 1.5
billion Muslims who engage in terrorism is a statistically insignificant 0.01%
(rounding up).[18] Omer Mateen’s horrendous act of violence shocks us all,
but he was just one person. His act does not
in any way show that Muslims’ views on homosexuality represent some real threat
to the safety of the LGBTQ community.
It only does so if we assume the Rousseau rule to be true and then read the
Pulse shooting as proof of that. How
many other acts of violence towards gays have been carried out by Muslims in
the US? A 2011 Pew poll of Muslim
Americans’ views showed that 45% of them felt that homosexuality should be
discouraged by society. When I check to see what
percentage of the Muslims who hold that view have engaged in violent attacks on
the LGBTQ community, I get 0.0001% (rounding up).[19]
As a Muslim American, I
support the right of same-sex couples to have civil marriages according to US law. Islam does not approve of same-sex acts, but I don’t
believe that the social or religious traditions of any one group should dictate
what sort of contracts or unions those of other beliefs can engage in. I want to preserve my right to have my Shariah marriage contract
with my wife recognized by US law even though I know many Americans consider
Islam’s conception of marriage to be unpalatable. I don’t see the desire of gay
couples as any different. Like Muslim judges adjudicating incestuous
Zoroastrian marriages, acknowledging that we live in morally and religiously
pluralist society does not mean condoning everything done in it. I believe that
it is the right of every religious community to advocate for its own vision of
sexual propriety. As the Supreme Court held
in the historic Obergefell v. Hodges case, “it must be emphasized that
religions, and those who adhere to religious doctrines, may continue to
advocate with utmost, sincere conviction that, by divine precepts, same-sex
marriage should not be condoned.” This right is as important and
sacrosanct as the right of minorities (be they Muslims or the gay community) to
engage in unions and contracts free from the hobbles of majoritarian bias.
As we all attempt to deal
with the shock of Omer Mateen’s bloody crime in Orlando, we should keep in mind
what was truly criminal in his actions. Many find his religious beliefs
revolting. Many find his homophobia disturbing. But Americans have a right to
disagree on these things. The crime Mateen committed wasn’t believing that God
declared that same-sex acts are sinful. The crime he committed wasn’t hating
gays. The crime he committed (with all asterisks for presumption of innocence,
etc.) was that he intentionally, knowingly and with malicious intent shot,
killed and even executed in cold blood 49 innocent people, wounding dozens of
others. He might have thought he was
doing God’s work, but the Shariah has made it clear since the beginning of
Islam that it is not for individuals to take God’s law into their own hands. Even if Mateen were living in some medieval, idealized Muslim
city, ruled by the Shariah and free from all the evils of the modern world, he
would be dragged in chains before the kadi (judge) on the charge of mass
murder. The people he killed had not been given a trial or even formally
accused of the crimes he imagined. Even if they had been tried, it’s highly
unlikely that a Muslim judge would have found them guilty of a Hudud crime. And
whatever the verdict, it would only be the recognized legal authority that
could have punished them.
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