Harsh punishments under Sharia are modern interpretations of an ancient tradition

After Brunei introduced death by stoning for homosexuals under its Islamic law, or Sharia, the condemnation from human rights organizations and others was swift. Recently, the country backed down under mounting international pressure, saying it would not carry out executions under the new law. The sultan of Brunei, Hassanal Bolkiah, said,

“As evident for more than two decades, we have practiced a de facto moratorium on the execution of death penalty for cases under the common law.”

And this, he added would also be applied to cases under the Sharia penal code.

Nonetheless, homosexuals in Brunei are still subject to penalties such as whipping and amputation.

Is Brunei’s law an accurate reflection of Sharia?

As a scholar of law and religion, I would argue that Sharia is not one thing: It is a complex tradition with multiple interpretations – one that accommodates the celebration of same-sex attraction alongside rulings condemning homosexual intercourse.

Different views

Starting in the early medieval period, Sharia developed as a sprawling corpus of texts and sources of authority that were often quite independent of the state.

Over the centuries, jurists of Islamic law have reached different decisions about what the tradition mandates in a particular case. Within Sunni Islam, four different schools have agreed to disagree about everything from criminal law to ritual observance. Shia Muslims have their own school of Islamic law.

Take, for instance, Muslim jurists’ approach to anal intercourse between two men. The Quran offers only a general condemnation, with no specific legal consequences. There are some sources in the Hadith – the vast corpus of sayings and actions attributed to the Prophet Muhammad and collected centuries after his death – that are more specific, including condemning those convicted of anal intercourse to death.

Some schools of Islamic law – such as the Shafii school, which is predominant in Brunei – classify sodomy as a type of fornication, which requires the death penalty.

But others, such as the Hanafi school, which was the official school of the Ottoman Empire, prescribe far lighter penalties for this act. The Hanafi school is still one of the most widespread in the Islamic world, including in Turkey, the Balkans, South Asia and Central Asia.

And even in those schools of Islamic law that prescribe the death penalty for anal intercourse, jurists have made the standard of proof so high as to be nearly impossible to meet.

To condemn someone for sodomy requires four male, Muslim witnesses to have had such an intimate view of the act that they could see the genitals of the offenders. All schools of law require this type of evidence to condemn someone for fornication. Needless to say, such proof was exceedingly hard to come by.

Celebrating same-sex attraction

Moreover, as scholar Khaled El-Rouayheb has argued, while jurists might have condemned sodomy, they also celebrated homoeroticism, that is, erotic love between members of the same sex.