In this article, Shaykh Atabek Shukorov an-Nasafi, a leading Muslim scholar from the UK, analyses the classical position of the founder of Hanafi madhhab (the largest school of Islam in terms of worldwide adherents) on homosexuality in background of the Orlando gay nightclub shooting and ISIS throwing people off buildings. The author presents the medieval traditionalist perspective which doesn’t account for the contemporary Pro-LGBTQIA activism characteristic of progressive Islamic movements today, but nevertheless, may well be the first step from within mainstream Islam towards eradicating death penalty for homosexuality still legislated in many Muslim-majority countries.
This weekend in the largest mass shooting in recent US history at a gay club in Orlando, we sadly again meet Ikrima (a 8th-century narrator of Hadith) in the new bloody and tragic incident.
Although Muslims have already retreated into conspiracy theories and ‘agnosticism’ about the alleged ‘religious’ motivation of the shooter, as well as describing him as ‘simply insane’ and taking a kind of ‘cold comfort’ in reports that he himself may have been gay:http://www.bbc.co.uk/news/world-us-canada-36525219, I would advise Muslims to be very careful about these types of issues and how they respond. This is because Islam and Muslims are under a microscope, they are under attack from both the xenophobic far right and more reasonable people who are perturbed at the profusion of violent incidents involving second generation Muslims in the West who pledge allegiance to ISIS (as seems to have been the case here).
Many of those who wish to turn Islam inwards and into an isolationist cult, people who have no interest in having Islam spread and make a positive impact on the lives of those in the West despite claiming to work for ‘daw’ah‘, always come up with the same excuses at a time like this. For example, blaming the media or saying that if the shooter had been non-Muslim, no one would care about his religion. At worst, they blame foreign policy, and when they are asked about the role of Islamic verdicts and narrations they resort to various poorly thought out glosses (addressing which is my main purpose in this article) and point out how Muslims leaders have ‘condemned’ the killings (as if they have a choice in the matter).
I know from the emails I get that these incidents and the poor responses by Muslims to them cause a crisis of faith for many Muslims, especially the young ones. It is because they are honest and they know that you can’t just answer the critics of Islam by calling people like the Orlando club shooter ‘crazies’, because we still have the problem of why there are so many crazies in the Muslims community and why they are always ‘inspired’ by or name religion. In a country like the US of hundreds of millions of Christians, Muslims have in the past year produced far more than their fair share of ‘crazies’, with shootings in San Bernadino before Florida (that one involving a new mother as a mastermind). Calling these people ‘crazy’ and not representative of Islam is not going to wash in front of Non-Muslims, especially where Muslims wannabee interlopers cannot bring any kind of psychiatric evidence. Compare the Orlando shooter with the perpetrator of the Sandy Hook Massacre at a Primary school in 2012, Adam Lanza. He didn’t involve religion. There was a clear a priori psychiatric diagnosis.
Calling Muslim terrorists ‘crazy’ is not very helpful because yes, people must be ‘crazy’ to do such things but the question non-Muslims and young Muslims ask me is why are they that type of crazy, using religion and pledging allegiance to ISIS etc.
The fact is that violent Salafists are making Muslim’s lives in the West unbearably difficult: apart from making them targets for the violent far right and bigoted media, giving them a crisis of faith, they have made it very difficult for Muslims to get Visas to enter and study or work in many western countries. Their actions in Paris and elsewhere have squandered the sympathy that had been garnered for Syrian and other refugees in Europe. It is entirely conceivable that at some point in the near future, many places in the West will no longer be safe for Muslims.
And what do we have in response to this from our putative ‘defenders’? Milquetoast responses which are shrouded in political correctness and convince no one.
Take this incident, which has resulted in the killing of openly gay people. Muslims I have seen online, who are confused by Salafis and believe that things such as public homosexuality or adultery require capital punishment and that this is a ‘part of Islam’ are ‘condemning’ this killing by saying that it is bad because ‘he took the law into his own hands’, that he wasn’t in an ‘Islamic State’ or that you need ‘four witnesses’ who see penetration before killing a homosexual. The silent majority of Muslims as well as Westerners are appalled at these lamentable excuses, which basically tantamount to saying that ‘well, yes, killing gays is Islamic, but he shouldn’t have done it’. No one ever stops to check if such a thing is ‘Islamic’ at all nor to at least use their common sense and realise that this is as egregiously stupid as saying ‘rape is bad unless done in an Islamic state’ as far as observers are concerned.
I also find it a bit stupid to say, as many Muslims do, that Salafist Muslims aggressively insisting that the Sharia demands the death penalty for homosexuality in public is in no way relevant to Muslims then going and carrying out killing of Homosexuals, that this serves as no inspiration, is of no relevance. For people to take the law into their own hands, appropriately or not, you have to have a law in the first place. I find it bizarre in the extreme that salafist Muslims are condemning these killings while simultaneously upholding the moral correctness and necessity of executing homosexuals in their ‘ideal’ state and vigorously anathematising those who say that such punishment is not Islamic.
Another thing I want to mention is that Salafists are always saying that they do not kill homosexuals for being ‘gay’ but for acting on it. What is the point of saying this and how is this a ‘defence’? It shows the horrible inadequacy of what is considered a ‘defence’ of Islam nowadays. How exactly were they going to find the ‘non-practising’ homosexuals that they claim to show mercy to? Actually, I will show that though homosexuality is not considered a virtue in Islam by any means and is seen as a sin as in all major world religions, any censure for it is only for public intercourse with witnesses, whether the couple is straight or gay, i.e public sex or lewdness. In fact the punishment for gay sex in public is less than for ‘straight’ people, but we will come to this is due time. I just want to anticipate the hysteria from Muslims and militant Liberals alike at this point and try to calm them.
But Salafis promoting these ideas have an easy target in Muslims: Muslims are already groomed to think that Islam is harsh, sins mandate punishments and that sexual sins in particular are the most serious. None of these is true and even a cursory reading of the Quran shows that most sins have no earthly punishment and that the most serious errors in Islam are not of a sexual nature. But as I said, Muslims are already groomed’ by ‘petro-Islam’ and puritanical cults such as Deobandism and Brelwism along with modernist organisations such as Hizb Ut Tahrir and Ikhwaanis. All they need to do is claim to ‘practising’ Muslims that some scholar is being ‘lenient’ on homosexuality and thus trying to appease the West and is a ‘sell out’ and ‘modernist’ and Muslims will shut off their brain immediately. As if the Western Liberal and the gay lobbies would be happy with someone saying that ‘homosexuality is a sin but requires no punishment’. Or the only way to not be a modernist and a ‘sell out’ is to show that you are willing to kill people for sexual misdemeanours and follow hadith from genocidal maniacs such as Ikrima who put ‘hits’ out on the companions of the Prophet.
Despite knowing what the response will be from ‘practising Muslims’ (because I already spoke about this several years ago and told everyone that there is no capital punishment for homosexuality in classical Islam), I will dedicate few articles on my blog about this issue. Here are the topics of my present article:
1. Abu Hanifa, the earliest extant Muslim Imam and jurist disagrees with Abu Yusuf on punishment for homosexuals.
2. The meaning of Ta’zeer (discretionary punishment) and its types in the Hanafi school.
3. Disagreement of the latest Hanafis
4. Modern Hanafis (Deobandis specifically) get engaged and ruin everything
5. Proofs of the scholars to back up their opinions. There we will meet Ikrima again.
1. Abu Hanifa Disagrees With Abu Yusuf on Punishment for Homosexuals.
Years ago, I made two video lectures about this issue to explain the position of Abu Hanifa;
I didn’t give many references assuming that modern Hanafis and others would know it, as this information is very widespread in the books of all of the four Sunni schools of Islamic law and even in the books of Shias. Back then, I was surprised that modern Hanafis were unaware of it. I don’t blame them, as it is a fiqhiy (legal) issue, and because I know that they are even unaware of Aqeedah (creed) issues too such as; God not lying, God not demonstrating the genitals of his beloved prophets, God protecting his prophets from Magic, Prophet Muhammad not committing polytheism and many other basics of Aqeedah.
Not only that, but their top ‘scholars’ cannot distinguish the ”Tawkeel” from ”Debt” thereby spuriously declaring all conventional mortgages to be ‘haraam‘ (absolutely prohibited) and catastrophically impacting the finances of a generation of Muslims;. Not even knowing the meaning of ”two transactions in one” and its hukm (ruling) they proudly ruin any chance Muslims have of owning their home and blame this on God:https://shaykhatabekshukurov.com/2016/01/31/mortgages-an-open-letter-to-sheikh-taqi-uthmani/.
Their very very highest ‘scholars’ don’t know that Hanafis don’t estimate the time of the prayers, and due to their ignorance, they make the already long fasts of the British Summer unnecessarily longer and more difficult:https://shaykhatabekshukurov.com/2015/06/28/prayer-and-fasting-when-the-time-for-isha-does-not-occur/
They don’t know the difference between ”Fardh”, ”Fardh Amali” and ”Wajib”. And there are many more basics which they have no clue of. But they speak anyway and cause a mess for Muslims and non-Muslims alike.
Their top ”scholars” often send their students with false proofs to deceive the people, as I’ve shown in my previous article about ”Abu Hanifa and Ikrima”. The biggest problem is that they don’t feel ashamed even if their lies are exposed. Meanwhile, Muslim’s public and private lives get harder and the West’s disgust grows more worrying.
That is why I excuse these scholars for not knowing the issue of ”Punishment of Homosexuals” in the Hanafi school. They don’t seem to know anything else they give ‘fatwas’ on, so why this?
In my turn, I will show this issue based on authentic sources as usual.
Just to clarify that there are three types of books in Hanafi school, in descending order of authoritativeness;
If there is a contradiction between Mutoon and the other two, then we take what is in Mutoon. Also, Shurooh books are above Fatawa books.
Furthermore, if there is a disagreement between Abu Hanifa and his students (as very commonly happens), then we take the opinion of Abu Hanifa except in issues which are explained by Hanafite authorities such as Halwani, Jassas, Quduri, Qadhikhan etc.
This is absolutely basic in Hanafi legal theory. Rest assured though, most of those who claim to speak for this Hanafi school, the earliest and most widespread school of Shariah, do not know this. That is because they do not study what is in Islam but only what agrees with their sect or cult. It is like saying ‘okay, I am going to study physics. But only those parts that deal with magic’.
Because I know that modern Hanafis are unaware of these principles, I refer them to Adab al-Qadhi in ‘Fatawa Qadhikhan‘, ‘Mabsoot‘ of Sarakhsi (same chapter), ‘Muheet‘, (same chapter), Rasm Mufti.
What is the Punishment of Homosexual According to Abu Hanifa?
From the Mutoon, the first ranked proofs of the jurists, here firstly is the authoritative manual ‘Mukhtasar Quduri‘ by Abu Husain Quduri (died 428 Hijri):
The one who commits homosexual act should be applied ”Ta’zeer” (discretionary punishment not stipulated in sharia, basically a ‘secular’ or ‘civil’ punishment that is not mentioned in the Quran or practices of Muhammad – we will see shortly what this is, but rest assured, it most certainly in not death or even anything necessarily ‘bad’) according to Abu Hanifa. According to Abu Yusuf and Muhammad, the two dissenting students of Abu Hanifa, he gets ”Hadd” (up to and including capital punishment).
Here is ‘Mukhtasar Tawahi‘ by Abu Ja’far Tahawi (died 321 Hijri);
‘Abu Hanifa said; ”Ta’zeer” and jail. Abu Yusuf and Muhammad said; He gets the same punishment as an adulterer (i.e. stoning to death)‘
Imam Nasafi (died 710 Hijri) in his book called ‘Kanz Daqaiq‘ is listing the acts which don’t necessitate punishment;
‘Homosexual acts, sex in the land of battle, sex in the land of rebellion, sex with an animal …‘
Here is ‘Mukhtar‘ by Imam Musilli (died 683 Hijri), giving us a list of non-punishable acts;
‘Having sex without virginal intercourse, and homosexual acts: not to be punished, but ”ta’zeer” to be applied.‘
I can carry on quoting hundreds of fiqh/legal books of the Hanafi school and all of them will prove one and only thing; Abu Hanifa doesn’t apply ”Hadd” (capital punishment) on homosexuals, but only Ta’zeer. Abu Yusuf and Muhammad (two of his students who in fact disagreed with him on numerous topics) do apply ”Hadd” of adultery on the en flagrante homosexual act. In any case, when we have the opinion of Abu Hanifa, we ignore the opinions of his students, as explained above.
”Hadd” of adultery is that the one who has a valid marriage contract before committing it, will be stoned to death, and the one who didn’t have will be lashed 100 times. I have a lot to say about stoning in Islam and the hysteria that Salafis make around this ‘necessary’ part of Sharia, but I will get into that another time.
When embarrassed that Abu Hanifa does not allow the death penalty (or even any physical penalty in some cases) for homosexuality, Salafists and their Deobandi friends become enraged and try to lie their way out of it by claiming that the ta’zeer discretionary punishment is in fact death. Sorry, but this is either egregious stupidity and dishonesty. Probably both.
I will talk about the meaning of ”Ta’zeer” in detail below.
Now, I want to quote from the scholars of other schools about the opinion of Abu Hanifa. I am doing it just to show that modern ‘Hanafis’ (Deobandis and Brelwis) have really miserable knowledge of the Hanafi school. That is because even scholars of other schools know what Abu Hanifa says about the ‘punishment’ of homosexuals, but modern ‘Hanafis’ have no clue of it.
Here is ‘Mughni‘ of Ibn Qudamah (died 620 Hijri), a famous scholar from the rival and often antagonistic Hanbali school.
Volume 12; ‘Hakam and Abu Hanifa said; there is no punishment on the homosexual’.
He also knows that Abu Yusuf and Muhammad apply stoning on the homosexual;
Here is ‘Majmu‘ of Nawawi (died 676 Hijri), a very famous Shafei scholar (another rival school).
Volume 21; ‘Abu Hanifah said; there is no ”Hadd” punishment on homosexuals, but only ”Ta’zeer”.
Here even Zahiri scholar Ibn Hazm (died 456 Hijri) knows the opinion of Abu Hanifa: from ‘Al-Muhalla‘;
‘Hakam, Abu Hanifa, Abu Sulaiman, and all of our scholars [means all scholars of the Zahiri school which Ibn Hazm founded] said; there is no ”Hadd”, but lashing.
He also confirmed the position of Abu Yusuf and Muhammad about stoning.
I can carry on quoting from the scholars of all schools (and even non-Muslim’s scholars), and all of them will confirm that Abu Hanifa doesn’t apply a death penalty on the homosexual. Everyone knows that. Except Deobandis and their colleagues, the Salafis.
2. Meaning of Ta’zeer and its Types in the Hanafi School.
We saw clearly that Abu Yusuf and Muhammad apply stoning if married and 100 lashes if unmarried for public gay or straight sex.
And we also saw that Abu Hanifa, Hakam, Abu Sulaiman, Zahiri scholars, and some more scholars don’t kill homosexuals caught having public sex, but apply ”Ta’zeer”.
Now we need to know the meaning of ”Ta’zeer”.
Recently a bunch of modern ‘Hanafi scholars’ stated quite a silly thing. They said;
Ta’zeer are four types; 1. beating, 2. jailing, 3. humiliating, 4 killing – which is called ”siasah”. They even fabricated terminologies for these ‘four types’. And these terminologies are nothing but Arabic words which could be found anywhere. If you ask them to show any proof for these ‘four terminologies’ and prove them being from Abu Hanifa, they won’t respond back (except by insults such as ‘you are modernist’, ‘you are supporting the gays’ etc).
Obviously, the ones who don’t know the difference between Tawkeel and Debt, are highly unlikely to know the meaning of Ta’zeer and its types.
Anyway, Ta’zeer is a type of punishment which is not specified textually. ”Hadd” is a punishment which is specified textually.
And there is difference between Abu Hanifa and Abu Yusuf on the maximum limit of ”Ta’zeer”.
Abu Hanifa said; 39 lashes as a maximum civil penalty.
Abu Yusuf said; 75 lashes, in different narration he said; 79 lashes again, as a maximum.
(I know that modern Hanafis are unaware of that, that’s why I have to show a proof otherwise they will have a public panic attack as usual and embarrass Islam at a time when Muslims are already being harassed)
Here is the famous ‘Athar‘ of Muhammad bin Hasan (died 189 Hijri) where he is confirming that Sha’bi, Abu Hanifa and himself hold an opinion that maximum ta’zeer has to be less than 40 lashes.
I don’t think that modern Hanafis even know that these book speaks about these issues. Maybe they haven’t read it or even skimmed it
Next is from ‘Mukhtasar Wiqaya‘ by Imam Ubaidullah bin Masood (died around 747 Hijri):
‘Maximum ta’zeer is 39 lashes, minimum is 3, it is permissible to lash and jail‘.
Obviously the minimum limit is from Mahbubi himself and not from Abu Hanifa, as there is not any narration from him about its minimum limit.
Here is Tahawi who says:
‘Maximum limit of ta’zeer accordingly to Abu Hanifa and Muhammad is less than 40 lashes. Accordingly to Abu Yusuf first it was 79 lashes and then he said; the Governor will decide what ever he wants with no limit‘.
Here is ‘Mukhtasar Quduri‘ confirming what I said;
Here is ‘Kanz Daqaiq‘ of Nasafi confirming 39 lashes as a maximum;
Again I can carry on quoting hundreds of books. Unlike modern ‘Hanafis’, everyone else knows about the maximum limit of Ta’zeer according to Abu Hanifa.
I don’t want to be insulting. But it is really a scandal that people would dare talk about killing people without knowing the utterly basic texts of law in Islam. These books and sources are famous. It speaks volumes for Muslims plight that they are led by famous scholars and ‘Muftis‘ who if they were a UK lawyer, would not know the difference between a parking fine and life imprisonment. Such a person would never be able to make himself as a ‘senior judge’ in the West but such is the lamentable state of Muslims that they have to put up with such people. Today, all you need to be famous in Islam is the right face, or the right race or the right language. Most of all you need the funding of ‘petro-Islam’ and support of the established sects.
Here are two questions people may have:
- If the maximum limit of ta’zeer is not specified textually, how come we specify it?
- Why did Abu Hanifa and Abu Yusuf disagree on the maximum limit?
For the first question, the maximum limit is specified only to make sure that it doesn’t reach the ”Hadd” or those punishments which are the province of God. Otherwise you have the situation we have now, which is Muslims making up nonsense reasons to kill and imprison people by using God as an excuse.
As for the second question; the disagreement is based on the issue of which is minimum ”Hadd” punishment. The minimum Hadd is the punishment for slander which is 80 lashes. Based on that Abu Yusuf said; maximum limit of ta’zeer is less than the minimum Hadd which is 80 lashes so thus 79 lashes. We all know (*not sure if modern Hanafis and their twins the Salafis know though), that a slave got half of the punishment of a Freeman in sharia. So if a free man slandered someone he got 80 lashes, but a slave only got 40 lashes. Based on that minimum Hadd is actually 40 lashes. So Abu Hanifa said that Maximum limit of ta’zeer is less than the minimum limit of Hadd which is 40 and not 80 lashes.
The main basis of ta’zeer being less than hadd is actually the Prophet Muhammad who said that:
‘Anyone who punishes out of hadd to the level of hadd, he is transgressor’.
But Muslims are happy to ignore Prophet Muhammad and have more violent and more baseless punishments, so I don’t think the Prophet is a proof for them.
Here Muhammad Sheibani narrated this hadeeth is in ‘Athar‘, and confirmed that it is the actual correct position;
In different narration the Prophet said;
‘No one should give more than ten lashes except in a hadd’.
So Hanafis used these narrations to say that ta’zeer is less than hadd.
Here is Jassas’s commentary on Tahawi;
Here is a senior adept, Ibn Nujaim, also narrating the above mentioned hadeeth and confirming it to be the Hanafi position;
All of these and many more texts prove few very important points which ‘modern Hanafis’ and salafis have no clue of;
- highest punishment is Hadd.
- ta’zeer never can reach even to the minimum limit of the smallest hadd
- minimum limit of smallest hadd is 40 lashes
- no way that any ta’zeer will reach to 40 lashes according to Abu Hanifa and Muhammad.
- ta’zeer never can reach to death penalty, as death penalty is the maximum possible hadd.
- Ta’zeer has to stay all the time less than minimum hadd, otherwise it will be classed ”transgression” according to the Prophet, which is confirmed by Sha’bi , Abu Hanifa , Muhammad bin Hasan Sheibani, Jassas, Ibn Nujaim and many others.
4. Now, Types of Ta’zeer According to Hanafis (*not including the modern Hanafis and ‘Taimohanafis’)
There was no textual proof of any types of ta’zeer from Abu Hanifa, Imam Zufar, and Abu Yusuf and the early Hanafis. Classifying the ta’zeer into several categories was done by latest scholars, to try and be helpful.
Here is Imam Kasani (died 587 Hijri) saying (‘Badai”, volume 7);
‘Some of our Mashaikh (scholars or leaders) classed the people into four, and divided the ta’zeer into four types;
Types of People;
- Elites; Ahl Bait (family of the Prophet) and Fuqaha [‘jurists’obviously not fuqaha of our time, as they will go to the fourth category]
- Noble people Governors and members of Forces
- Middle class, traders and professionals.
- Lowest class, it is miserable people.
The types of ta’zeer based on that is;
- Ta’zeer of elite is by informing only. And that is by Judge sending his assistant to him and telling him; ‘We’ve been told that you did such and such’.
- Ta’zeer of noble people by informing them and calling them to the court and confronting them there only.
- Ta’zeer of ‘middle class’ is by informing and calling to the court and jailing.
- Ta’zeer of ‘lowest class’ is by informing, and calling to the court, and lashing and jailing.
Here is ‘Durar‘ and ‘Ghurar‘ by Malla Khisraw (died 885 Hijri) confirming these 4 types of Ta’zeer. And applying the ”looking by anger” only on the first category. Obviously most of the Muslim activists fall into last category, that’s why eye contact doesn’t work on them, but it actually makes them to laugh and to become more arrogant.
I have to keep spelling it out for these people unfortunately. So now it is very clear that;
- Hadd is a punishment which is textually established
- Ta’zeer is a punishment which is not established textually
- Maximum Ta’zeer has to be less than the minimum Hadd
- Minimum Ta’zeer is not narrated from Abu Hanifa, Zufar and Abu Yusuf
- Types of Ta’zeer are not established by Abu Hanifa or any of the early Hanafis
- Latest Mashaikh (from year 450 Hijri onward) split the ta’zeer into four categories
- Even though the maximum ta’dheer is 39 lashes, it won’t be applied on each and everyone.
- Some people will receive only first type of ta’zeer, which is just being informed by court officer that the judge was told that such and such issue occurred, and that’s it.
- Only specific (fourth) type of people get the maximum level ta’zeer, which is lashes and jail.
- The highest punishment of ta’zeer is not jail, nor court, nor being informed. But only lashes accordingly to Abu Hanifa.
- Ta’zeer has no death penalty, as modern brainless Hanafis are hallucinating.
So just to make it clear for fans of violence as a means of sorting out moral issues such as whether homosexuality is a bad thing or not (and in Islam, like all major world religions, it is considered ‘bad’), the maximum punishment for publicly committing sodomy with a member of the same sex specified by the earliest Muslims is 39 lashes for the worst and repeat offenders only. For normal ‘classes’ of people it is nothing.
I don’t care if people don’t like it, I am just presenting Islamic legal theory so people can see the truth and decide for themselves. The gay lobby won’t be happy at the potential for public lashing in Sharia (though same goes for ‘hetero’ couples who do the same thing so they are hardly being singled out – in fact the punishment for public hetero sex is worse than for gay sex, so I really don’t want to hear any cries of homophobia) and Salafis and their Deobandi friends won’t be happy because they want to show how much ‘against homosexuality’ they are by appearing ‘strong’ and prescribing a death penalty, even where none such exists in the largest and earliest legal school.
My advice to the militant gay lobby is to stop making lives of homosexuals harder by demanding that everyone approve of their actions as opposed to tolerating their actions and to learn the difference between these two things. And my advice to Salafis and Deobandis is stop trying to kill everyone you don’t like and abusing name of God and Muhammad to do it. Saying that killing gays is part of Islam is not true and if you think this will ‘stop’ homosexuality then you are stupid.
5. Disagreement of Latest Hanafis
Unfortunately we cannot leave it just there, because so called ‘practising Muslims’ are relentless in their search for excuses to kill people. They will keep digging to find some excuse.
There is one scenario related to the homosexual act on which some later Hanafis disagreed even though the position of Abu Hanifa is clear and confirmed. The scenario is: A person gets accustomed to partaking in homosexual acts. Is it permissible for the main head of the state (for example king, president, or prime minister) to issue a death penalty?
Obviously all, including the latest Hanafis agreed that there is no death penalty in the following scenarios;
- Someone committed the act, but it’s not his habit
- There is a homosexual who’s habit it is to commit it, and the judge or any other authority beside the main head of the state issuing a death sentence
In the above two scenarios there is not disagreement that there is no death penalty.
Anyway, two main latest Hanafis (and some others) said that the ‘king’ has the right to apply the death penalty in the abovementioned case. It is Fakhruddin Zaila’e (died 705 Hijri) and Kamal ibn Humam (died 861 Hijri). And they have supported their position by saying that ”it is done to scare off the people from this act” which is referred in fiqh by the term of ”Siasah”.
A big list of other latest Hanafis have rejected the death penalty for homosexuals in any circumstances as ta’zeer, such as; Ghaznawi (died 593 Hijri), in ‘Hawi Qudsi‘. He said; ‘Some scholars described different types of Ta’zeer for the homosexual. Some said; Has to be thrown from the highest place. Some said; Has to be jailed in the most smelly place. And they suggested many other types of punishments besides chopping off the genital and castration. But the most correct opinion on the ta’dheer is lashes‘!
Also the opinion of both of Ibn Humam and Zaila’e is rejected by a group of scholars such as Sirajuddin ibn Nujaim (died 1005 Hijri) and Imam Zainuddin ibn Nujaim (died 970 Hijri), Haskafi (died 1088 Hijri), Ibn Abideen (died 1252 Hijri), and others:
But as for ”siasah” (scaring off the people), some Hanafis used this term when they were commenting the hadeeth which is rejected by Abu Hanifa about punishment of heterosexual adultery. Hadeeth states: ‘Any unmarried couples commit adultery, should get 100 lashes and deportation for one year’. Narrated by Muslim and many others.
Abu Hanifa rejected ”deportation for one year”, so some Hanafis wanted to justify Abu Hanifa rejecting this hadeeth by saying; ”Prophet PBUH mentioned the deportation not as a punishment, but just to scare off the people”.
That’s all. As we know that there is big difference between ”deportation” and ”death” so there is no need to justify the opinion of these two scholars. Abu Hanifa was very clear about the maximum limit of ta’zeer, and the latest Hanafis showing the deportation as ta’zeer has two problems;
- It’s the opinion of this late Hanafi about justifying Abu Hanifa rejecting this hadeeth. It could be that Abu Hanifa rejected the ”deportation” because of something other than what this late scholar thought.
- Even if we accept that Abu Hanifa thought that deportation is only to ‘scare off’ people, then it doesn’t mean that we can use the word of ”scaring” to kill!
Anyway, the issue is very clear that opinion of Ibn Humam and Zailae which is opposing the opinion of Abu Hanifa and hundreds of early and latest Hanafis is rejected.
If these people do nonetheless want to accept minority, late and rejected opinions then that is up to them but:
-Stop claiming to follow the Salaf
-Don’t complain when modernists and ‘sell outs’ reject the early opinions for new and later ones either.
6. Modern Hanafis (Deobandis Specifically) Get Engaged And Ruin Everything
We saw that Abu Hanifa said no death penalty for homosexuals. We also saw that all of early and latest Hanafis supported his opinion. There’s only one disagreed issue in which mainly two very late Hanafi scholars opposed all of the Hanafi school including Abu Hanifa.
Also we saw that Abu Yusuf and Muhammad disagreed with Abu Hanifa and their opinion was classed as weak in the school.
After all of that tradition of over one thousand years heritage, some contemporary moulanas came to ruin all that with no basis at all!
I remember when I followed the opinion of Abu Hanifa in many issues people caused a public panic and started calling me modernist and God knows what else, but if their own moulanas overthrow everything from classical Islam, they seemingly have no problem at all. Strange.
Anyway, here is the issue:
In the following pages Imam Jassas (died 370 Hijri), a pillar of Hanafi fiqh (jurisprudence), Usul (principles) and Mustalah (science of hadith), mentioned the disagreement between Abu Hanifa and Abu Yusuf and supported the position of Abu Hanifa. He then narrated the hadeeths about killing the homosexual, and has proved them all to be weak. In order to prove that the hadeeths are weak he said Aasim bin Umar, Amr bin Abu Amr and Abbad bin Mansur are weak, their narration cannot be accepted:
Ibn Hazm narrated all of these hadeeths and supported the opinion of Jassas and said;
Amr bin Abu Amr is weak! Abbad bin Katheer is worse than him! So, all of the hadeeths about killing the homosexual are weak! [exactly as Jassas said]
Also, Jassas mentioned the story where Khalid bin Walid allegedly found a homosexual and jailed him and sent a letter to Abu Bakr (the first Caliph) about it. Abu Bakr called all of the sahaba to decide what to do. Each sahabi suggested some type of punishment. Then Ali suggested to burn him. Everyone agreed with Ali. They replied to Khalid, who supposedly burnt the homosexual.
Jassas said that hadeeth is weak even according to the others because it is disconnected:
Ibn Hazm supported the opinion of Jassas about the weakness of this story of Khalid and said: ‘It’s disconnected‘!
Then this guy called Zafar Usman Tahnawi (died 1974 AD – 1394 Hijri), the cousin of the founding pillar of the Deoband school in the Subcontinent (although Deobandis like to hide this by dropping the name Tahnawi, so that unsuspecting people can be affected by his books), came along and mentioned that all of the statements of Ibn Hazm, who is concordant with the opinion of Imam Jassas, and said that all of that is rubbish!
[Deobandism is a latter day development in the Indian Subcontinent claiming to be a Sunni Hanafi group. They have been implicated in everything from the Taliban to Bin Laden, but my speciality is not geopolitics. I only want to address if they represent the genuine Sunni Hanafi school as they claim]
(I’la Sunan, volume 11)
He said; Ibn Hazm claiming that hadeeth is weak, and that the narrators are unknown is just nothing! It is an authentic narration from the Prophet PBUH that both of the homosexuals have to be killed!
It shows very clearly the difference between early Hanafis and this modern sect which is claiming to be Hanafi: two exact opposites. Jassas saying; Prophet never said kill the homosexuals. And yet this claimant of Hanafism says; Prophet 100% said kill the homosexuals.
Isn’t it modernism without any boundaries?
Imam Jassas said (died 370 Hijri); ‘No scholar said that you can burn the homosexuals‘
Here Jasssas again repeats his statement; ‘No one said that you can burn homosexuals. There are only three opinions;
- Some said; Ta’zeer, it is the opinion of Imam Abu Hanifa and the reliable position
- Some said; Its punishment is same as adultery. So if married then stoning to death otherwise 100 lashes. It is the opinion of Abu Yusuf, Muhammad, Hasan bin Saleh, Hasan Basri, Ata
- Killing regardless, it is the opinion of Malik and Laith
But no one said; ‘they have to be burnt’!‘
Here Zafar Tahnawi says in his ”I’la sunan”;
‘Killing and Burning the homosexuals is the opinion of Companions of the Prophet PBUH. And they have practised that‘
It is another obvious difference between early Hanafi school and what contemporary guys call ”Hanafism”.
What is the difference between Jassas saying;
‘No one said you have to burn the homosexuals’
And the opinion of Zafar Tahnawi;
‘Sahaba said; they have to be burnt! Sahaba actually burnt the homosexuals‘.
Do you see the difference? Because it seems that Deobandi partisans do not.
In order to concoct that Abu Hanifa apples ta’zeer by burning, Zafar Tahnawi displayed wanton academic fraud and quoted only the first part of the statement of Ibn Abideen, who said;
‘Accordingly to ‘Durr’ (a Hanafi book) homosexuals will get ta’dheer by being burnt according to Abu Hanifa!’
Here is the full statement of Ibn Abideen, without him being misquoted by Tahnawi. He narrates all of the different opinions about the punishment of partaking in acts of homosexuality. At the end he narrated the statement of Ghaznawi where he says; ‘Some scholars described different types of Ta’zeer for the homosexual. Some said; Has to be thrown from the highest place. Some said; Has to be jailed in the most smelly place. But the most authentic opinion is Lashing’
Then Ibn Abideen states that; ‘Bahr and Nahr [two top hanafi books] mentioned it [the statement of Ghaznawi] and confirmed it [sukoot]’.
Ladies and Gentlemen, you have just witnessed how ‘modern Hanafism’ was created – with naked deception to aid fatwas forsv killing. What can we call this, someone who lied to make it easier to kill?
Just misquote Hanafi texts to fulfil your desire to kill or in this case to burn, then claim it to be an opinion form within the Hanafi School by making it seem like you are accurately ‘quoting’ from a Hanafi book, voila!
Further to this, in an attempt to make his distortion seem stronger, he claims there is a consensus of the Companions of the Prophet PBUH that Homosexuals have to be stoned to death or burnt.
These people love claiming ”Consensus” where there is no any;
Here is the book of ibn Hazm aptly called ”Levels of Consensus” where he narrates issues relating to ijma. He mentions that the scholars have disagreed regarding what to do with Homosexual
Here is ibn Mundhir (died 318 Hijri) who writes in his books ”Ijma’ (Consensus), all of the issues which are agreed upon, but does not mention the ”consensus” of burning people which is claimed by Zafar Tahnawi!:
Also,I hope the readers still remember that Jassas stated; ‘No one said that homosexuals are to be burnt’. But the response from modern Hanafis (who died few decades back) to Jassas (who died 370 Hijri ) is to falsely claim; ‘There is a consensus of the Companions of the Prophet that homosexuals are to be burnt’
Actually, according to modern Hanafis even Jassas should be burnt because according to them he is a heretic and this is confirmed by Mazari, Qadi iyad and Qurtubi (three ashari maliki scholars ) because he rejects that the Prophet was affected by black magic! (Not only Jassas, but other top scholars such as Imam Ghazali have to be burnt by heresy, because Mazari and Qadhi iyad claimed them to be heretics too!)
That how Abu Hanifa (died 150 Hijri) and all of the early and latest hanafi scholars are rejected, just to follow the opinion Zafat Tahnawi who died in the last century year 1974. If this is not modernism then what is that?!
Just to let the ‘Modern Hanafis’ know that the Hanafis actually know that there is no ijma‘ that homosexuals are to be burnt nor that dead bodies are to be burnt period.
The story of Khalid RA burning homosexuals is not authentic even according to Zafar Tahnawi. So the question arises why is he saying that the sahaba have burnt people!?
There is an easy answer, he is relying on another story which is narrated by Ayyub Sukhtiyani from Ikrima that Imam Ali (a man Ikrima considers a non-believer) allegedly burnt a group of heretics.
That’s why it is important for the modernist Hanafis and their colleagues to do everything in their power to defend Ikrima. It’s because their leader wanted to burn people and his reference point for this was none other than the infamous Ikrima.
In the recent issues we have seen how everyone was fine when the Prophet Muhammad and Musa were insulted. But as soon someone questioned the level of Ikrima, it caused a huge panic.
Now you understand the reason for that.
Here Zafar Tahnawi is quoting from Bayhaqi that Ikrima is reliable according to most of the scholars. He desprately needs Ikrima to be ”Reliable” otherwise 90% burning and killing fatwas won’t have any basis!
We know that he is ‘fine’ according to latter scholars who never met him, but the Salaf who actually met him do not consider him authentic at all, such as; Ibn Abu Dhi’b, Malik, ibn Sireen, Hasan Basri, Saeed bin Musayyab, Tawus etc…https://shaykhatabekshukurov.com/2016/06/13/ikrima-as-imam-of-modern-hanafis/
Do you remember the disagreement between Ibn Human, Zaila’e on one side, and everyone else on the other side? Even that was only about the person who has a habit of being homosexual. But this guy generalised the case and applied the permissibility of the ‘King’ killing anyone who commits it:
‘If the ruler wants to kill them he can kill them‘
We all saw that in the Hanafi school we have only two opinions;
- Abu Hanifa said; Ta’zeer.
- Sahibain (Abu Yusuf and Imam Muhammad) said; Same as adultery
But these modern progressive ”Hanafis” disagreed with both and established a new punishment.
Zafar Tahnawi said;
‘Some said; Burning the homosexual is specifically applicable on that person who is mentioned in the narration of Bukhari, Tirmidhi and Ahmad which is mentioned in Kanz al-Ummal [a collection of hadeeth by Muttaqi al-Hindi]….
That’s totally wrong! Burning the homosexual is not specifically on that person, but the Companions of the Prophet PBUH have burnt after killing or stoning‘
ِAnd before finishing the chapter he came back and confirmed that Sahaba used to burn the homosexuals after stoning them!
By this statement, Zafar Tahnawi has opposed all of the Muslim schools and sects. The dead body has to be buried according to Islam regardless if it is the body of an obedient person or disobedient, believer or disbeliever. But this guy believes that if it is the body of homosexual then you have to burn it.
So, now if we class this guy Zafar Tahnawi the author of ‘I’la Sunan’ as ‘Hanafi’ then we have three opinions in the Hanafi school about the punishment of homosexuals;
- opinion of Abu Hanifa and vast majority of Hanafis; No death penalty regardless, it’s only ta’zeer
- opinion of Abu Yusuf and Muhammad; Stoning if married, lashing if not married
- opinion of Zafar Tahnawi followed by modern ‘progressive Hanafis”; Stoning to death, then burning or burning without stoning!
I want to re-quote the statement of the real Hanafi scholar, Imam Abu Bakr Jassas;
There are only three opinions about the punishment of homosexuals (and the accepted one is the first BTW);
- Ta’zeer (authentic opinion of Abu Hanifa)
- Punishment of adultery (the opinion of Abu Yusuf, Muhammad, Hasan etc)
- Death penalty regardless (the opinion of Malik and Laith)
But no one supported burning, or throwing from the highest building,
I think we learnt a few things from Salafi-Hanafis in the issue of alleged ‘Islamic’ punishment of killing gays:
-Ignoring hadith and Prophet Muhammad is fine (*but only if this helps you kill people)
– Following weak hadith is fine (*but only if this helps you kill people)
-We can reject Salaf (*but only if this helps you kill people)
-We can follow Kharijites such as Ikrima who call Sahabah kaafir (*but only if this helps you kill people)
-We can be ‘modernists’ and make up new opinions (*but only if this helps you kill people)
-We can reject Abu Hanifa and Imams (*but only if this helps you kill people)
-We can reject logic and intellect (*but only if this helps you kill people)
Isn’t this just complete epistemic anarchy?
I want to say two final things: do you think that someone who follows the opinion that gay sex is worse than, for example, murdering a baby in cold blood and thus requires a worse punishment, a punishment so egregious that they hold that it should be punishable by stoning to death and then burning. A punishment worse than for mass murder. A punishment they hold to despite all of the evidence from the earliest times, in spite of the hadith of the Prophet, in spite of the founder of their school Abu Hanifa, has ‘no link’ with people who carry out violence? If as Muslims so-called speakers say, people who carry out violence are ‘just crazy’, I think any fair person can see that such fatwas are ‘just crazy’ too and people who take them seriously have a high chance of doing something violent and stupid. And I think we all know that any non-Muslim who comes across such baseless yet violent opinions will be justifiably shocked.
Secondly, they accuse people of being ‘sell outs’ and ‘modernists’, ‘pandering to gays and liberals’ and other such lies. It is just mud slinging.
But let me ask you: who are the real modernists? So you can only be ‘modernist’ in these peoples eyes by giving a ‘lenient’ fatwa. But if you ignore 1200 years of Islamic scholarship to justify violence and killing, you are ‘authentic’ and ‘Islamic’. So if that is true then we became exactly like that caricature of Muslims that the media, Islamophobes and militant atheists promote.
Also, why do we need Quran when all of the most serious punishments were left to the discretion of people who have no evidence? That’s not ‘sharia‘ or being ‘against homosexuals’, it is just anarchy.
7. Proofs of the Scholars to Back Up Their Opinions.
This part is not for laymen. That’s why I will keep it in a tighter group. I will discuss the proofs of all scholars. I will also talk about the opinion of the individuals who burn the homosexuals even though their opinion doesn’t really deserve consideration.
We will deal with Ikrima and his bloody narrations there.
That much is enough for the laymen.
Now it is your choice to chose between real Hanafis or these ‘geegle meegle’ guys who woke up one day and for some reason thought that they are Hanafis.
Some of the western journalists have taken my article and called it as a ‘problematic’ and further said ‘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.‘
Obviously he is unaware that 99% of arguments and issues in Islam have ‘millennium old debates’. Just try to look into the Islamic issues starting from theological such as a free will and destiny, attributes of God, similarity of God to a Human, and Fiqiy issues such as permissiblity of listening to a Music, painting a picture etc. You find that all of these Islamic issues have ‘millennium old debates’.
So, basically if you want to please him then don’t talk about any of the Islamic issues because all of them have ‘millennium old debates’ .
According to him saving the lives of the people who have not been ordered by Islam to be killed (but it is the opinions of few people who died while back) is called ‘far from uncovering a popular misconception about Islam‘. Why is it far? Obviously it is banal and ridiculous attempt to use someone’s popular article in order to build up his own profile in the issue in which he has no strong understanding. Unfortunately a lot of modern Muslim ‘Academics’ have this attitude.
The real problem is not presenting the Hanafi school about this issue in opposing the other three schools, but the real problem is that partisans trying to use the popular articles for their fame and critiquing it with no any substantial argument.
I don’t know this journalist in person but I still remember how he was unable to understand the basics of Islam about the issue of ‘Takleef’ and tried to refute Ghazali, and Ash’aris and Maturidis, and quoted hadeeth and rejected it – which is irrelevant anyway – until one random guy came and commented on his Facebook thread and finished him off. After long several months he again tried to respond but again the same random guy came and finished him off again. The people on this level should not get engaged into this type of issues where blood of people is taken by the name of Islam.
Because of these type of journalists, Islam became a Bloody religion.
Just my advise to them ‘If you have no clue of the issue then don’t get engaged in it. But if you are thirsty for the fame then go to Hollywood and act there!’