Comparative Law as Archeology: Deviant Sexuality, Human Rights and Islamic Law Draft: October 9, 2006

Comparative Law as Archeology: On Sodomy, Islamic Law and the Human Rights Activist Amr Shalakany *

Comparative lawyers generally classify legal systems across the world today as belonging to either the Civil Law or the Common Law tradition. A set of basic characteristics are then assigned to each system. For example, judges in the Civil Law tradition rely on codes and adopt an inquisitorial criminal procedure system while Common Law judges largely base their decisions on case law and generally rely on adversarial rules of procedure. Comparatists typically deploy this classificatory scheme through a functionalist methodology which seeks to avoid vulgar generalizations and facile stereotypes about the other legal system and generally produces more instances of similarity than difference across the Civil/Common divide. However, when it comes to describing the legal systems of the Arab World, comparative law scholarship has long suffered from a state of labeling-disarray. On the one hand, comparatists generally find it reasonable to classify Arab legal systems as predominantly belonging to the Civil Law tradition. With the dubious exception of Saudi Arabia, 1 the remaining legal systems of the region exhibit the same characteristics of continental legal systems, such as the predominance of codes as the main source of law, an abstract approach to legal thought and analysis, a bureaucratic framework for the judiciary, legal education relying on lectures derived from treatises, and so on. In that sense, Arab legal systems can be viewed as similar to those of Latin America: Civilian in origin, transplanted during the colonial encounter with European powers, and thereafter developing their own indigenous identity like other post-colonial legal systems yet concurrently maintaining the familiar features of their continental origin.2 On the other hand, one also finds a pronounced reluctance in comparative law scholarship to simply box Arab legal systems under the Civil Law tradition. After all, Arab counties were governed by an Islamic legal system before the colonial encounter, and this Islamic heritage seems to continue to influence their normative structure until this day. The concern is that a blanket Civil Law label for Arab legal systems might
* 1

Assistant Professor, Department of Law, the American University in Cairo. Saudi Law is often been held up by comparatists as the only remaining legal system with an authentic Islamic identity, untainted by the colonial encounters of the late nineteenth century and unpolluted by the advance of a French inspired code or judicial system. This is equally the formal position of the Saudi state as well. And yet, a closer look at Saudi law will reveal a great deal of codified norms promulgated by royal edict under the Islamic juristic rubric of siyasah and governing the most vital aspects of economic and commercial life on a normative scale that is both unquestionably secular in outlook and reassuringly familiar for Western business men seeking investment opportunities in the Kingdom. To my mind, this coexistence of Islamic courts applying the Shariah with codified private law norms regulating distinct aspects of commercial activity makes it difficult to maintain the Orientalist fantasy of the Saudi legal system as the last refuge of Islamic law in the region. 2 [??Ren David analysis of legal families, Arab and Latin America together??] [Comparative law scholarship most comfortable with the approach deals with private law norms, doing business in.]

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flatten their hybrid postcolonial identity and risk discounting the continued relevance of Islamic law norms to both contemporary judicial applications and debates over future legal reform across the region. But what relevance, if any, does Islamic law really have in understanding the legal systems of the Arab World today? The bulk of the private law regime governing economic activity is unquestionably based on secular norms easily familiar to the Western lawyer without need for exposure to any exotic intricacies in Islamic law. Indeed, glancing at any of the doing-business-in literature which seeks to explain the legal systems of Arab countries to foreign investors, one finds the scholarship free of any references to Islamic law. Instead, we find rules on contract and tort, commentaries on issues of procedural law or specialized legislations governing trade-free zones and the like, all explained from a perspective that is comfortably uninterested in labeling the legal system as Civilian or Islamic. The principle exception here concerns what has come to be called Islamic banking and finance, a new field of comparative law scholarship which first rose into prominence following the oil boom of 1970s and concerns itself with developing legal instruments that can accommodate the business realities of global finance while taking stock of the Islamic law prohibitions on usury. Yet even in Saudi Arabia, long held by comparatists as the most authentically Islamic of the regions legal systems, untainted as it were by the advance of Civilian legal transplants, even there, the law on banking and finance applied by Saudi courts has a familiar secular feel to it. Perhaps where the rubber meets the road and concern over the relevance of Islamic law is most pronounced is best found in comparative law scholarship dealing with questions of constitutional law, personal status and human rights in the Arab World. It is particularly with respect to such issues as freedom of expression or women and minority rights that we can best experience the queasiness of comparative lawyers in explaining the continued significance of Islamic law in the decidedly Civilian legal systems of the region, or proposing how the pre-colonial tradition of Islamic norms can prove useful for the activist seeking to engage with contemporary problems. Instead, what the comparative law scholarship currently provides us is mostly focused on foreground norms regarding rights under Islamic criminal or family law which got codified into articles contained in the various laws applied by Arab courts today. Codification has been the instrument of choice for Arab lawyers interested in the secular and progressive reform of the regions legal norms since the late nineteenth century, and in that sense one can understand the comparative lawyers propensity to assess the continued relevance of Islamic law by examining the religious origins of codified norms across the regions legal codes. Yet such this approach also bears a cost: it cabins Islamic law into codified norms, ignoring the rich mutli-vocality of the legal tradition and offering us little insight on how it may continue to inform projects of legal reform today. Instead, this article argues the need for an archeological approach to the regions legal systems, one that takes account of the foreground norms contained in postcolonial

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codifications but pays equal attention to how these codes interact with the pre-colonial legal system of Islamic law. I argue this archeological approach might allow comparative law to be more helpful in understanding the contemporary relevance of Islamic law in the region, as well as provide the human rights activist with an extra bundle of legal tools that cross between the hybrid Civilian present and the pre-colonial Islamic past of Arab legal systems. To illustrate this argument, the present article concentrates on the Egyptian legal system and offers a comparative study of the legal regime governing sodomy under Islamic law, ensuing British colonial legal reforms on the subject, and finally the present postcolonial legal order. I use the example of sodomy for the following reasons. Ever since the arrest of 52 men from a gay nightclub in Cairo over five years ago, in what eventually became known as the Queen-52 case, the question of how to deal with discrimination against gay citizens in the Arab World has become a highly contentious issue dividing local and international human rights activists and leaving both without much of a sound strategy on the subject. The current law under which gay men have been prosecuted in Egypt is fully derived from secular French codes with no input from Islamic law what so ever and prospects for reforming the law based on the secular or universalizing norms of human rights stands little chance of happening. Instead, I believe the kind of archeological comparison provided here, especially with respect to Islamic law on the subject and how it interacts with the current legal regime, might prove more useful in suggesting alternative legal strategies for dealing with the issue. This article proceeds as follows. Part I offers a methodological introduction to the question of sexuality governance and provides a quick literature review on the current debates surrounding the legal treatment of sodomy in Egypt today. Part II explores the pre-colonial legal regime on the subject, paying equal attention to the foreground norms of Islamic criminal law on sodomy, as well as background norms on privacy and evidence. Part III explores the replacement of the Islamic regime on Sodomy with British colonial reforms articulated under the rubric of public hygiene following the colonial encounter. Part IV explores the contemporary legal regime and offers three different proposals on how Islamic law may continue to be relevant as both a litigation strategy and a tool for legal reform regarding the governance of deviant sexuality in Egypt today. [Parts III & IV of this article are not included in this draft]

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I. FROM QUEEN-52 TO A QUEER/POST-COLONIAL AGENDA

On May 11, 2001, the Egyptian police arrested 54 men in a surprise raid on the Queen Boat nightclub in the Cairo upper class neighborhood of Zamalek. The club, described in the media as a bar in a houseboat that bobs enticingly on a sweeping curve of the Nile, 3 had become a regular gay venue frequented by Egyptian men from across Cairos class structure. Eventually, fifty two of these men were indicted for trial before the Cairo State Security Court, a special judicial body whose jurisdiction emanates from the emergency law that was put in effect since the assassination of President Anwar Sadat in October 1981. Two men were charged with contempt for religion under article 98(f) of the Penal Code, and all fifty two men were charged with habitual debauchery or habitual immoral behavior under article 90 of Law No 10 of 1961 on the Prevention of Prostitution. The human rights violations compounded: Some of the arrested men claimed they were tortured during their first days of detention. While incarcerated, many were subjected to forensic medical examinations intended to prove that they were engaged in anal homosexual intercourse. Throughout the trial, the press published their names and in some cases their places of employment, and in one case the family address of one of the detainees. 4 The present article is intended as a critique of the general approach adopted by human rights organizations in Egypt and the West in reaction to the Queen-52 case. Central to this critique is the project of complicating the binary Corruption/Repression, as an extension of the even more binary and foundational proposition East/West. In the comparative law scholarship dedicated to contrasting different regimes of sexual governance, the binary corruption/repression crops up over and again to signify a plethora of contradictory, and often mutually exclusive images and meanings in the comparative lawyers quest to assign differences and commonalities between law in the East and the West. In general, the image of corruption is deployed to indicate the legalized tolerance of sexual deviance, while repression indicates the laws prejudice against deviance. Depending on the sources one reads, the West is at times viewed as corrupt, to the extent its laws might permit gay marriages, or as repressive, to the extent it reproduces an uptight Victorian regime of sexual governance. By the same token, the East is sometimes presented as corrupt, to the extent Islamic law had exhibited deep tolerance towards sexual deviance throughout the middle ages, or alternatively as repressive, to the extent Islamic law officially condemns sexual deviance to a variety of severe punishments, or its postcolonial manifestation puts gay men behind bars. The assigning of Corruptive/Repressive qualities to either side of the East/West binary can be flipped around even further. On the one hand, Western writers on the
3

Jasper Thornton & Iason Athanasiadis, Trying Times, Al-Ahram Weekly, 22-28 November 2001, issue no 561, 4 http://web.amnesty.org/ai.nsf

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Orient have concurrently described Oriental sexuality in the two contradictory modes of licentiousness and repression. Western representations of the private Harem and the public Bath are excellent indictors of this point, with each at times represented as an orgy space of corrupt sexual practices, and other times represented as a prison-like space of repressive social structures. On the other hand, contemporary post-colonial Muslim writers assign contradictory values of corruption/repression to sexuality governance in the West and its globalizing effects on the East. Thus, the colonial West is blamed for two contradictory crimes: In the first mode, colonialism is represented as a source of sexual corruption, exporting loose morals, homosexuality and AIDS to the Muslim world where no such practices or diseases existed in pre-colonial times. In the second mode, colonialism is by contrast represented as a source of sexual repression, with colonial officers imposing intolerant middle-class European morality on colonial subjects whose regime of sexual governance used to be highly tolerant of deviant sexual practices prior to the colonial encounter. My interest here is to demonstrate how the above competing images on comparative law and sexuality governance are marshaled to legitimate different projects of power, with different stakes, different winners and losers, and more importantly for purposes of this article, different strategies of resistance. To my mind, one of the first necessary steps to formulating an effective response to the Queen 52 case is to recognize that a major failing of the human rights movements in this case was its inability to recognize the nature and constraints of the liminal legal system governing the issue in Egypt. . In pursuing this project, this article uses the insights of Queer Theory and PostColonial Theory, as well as the American tradition of rights-critique, in an attempt to outline an alternative agenda for human rights activism on the subject. The most operative word in the last sentence is outline: The literature on sexuality in Egypt, and indeed the Arab world in general, is meager at best. 5 There is almost no sociological research to rely on in configuring a successful activist strategy, and there is very little theoretical analysis on the subject of deviant sexuality to merit a sophisticated analysis of the subject. Indeed, even on the level of jurisprudence, Egyptian courts have dealt with a very few cases of sodomy and it is almost impossible to formulate a theory concerning case law on the subject. Moreover, this articles methodological foundations, namely the coming together of Queer and Postcolonial Theory in a common political project, is a completely new phenomenon that has yet to be adequately worked out in theoretical terms, and whose practical utility still needs to be put to the test. 6 Both Queer Theory and Postcolonial
5

Indeed, the very small literature out there almost uniformly starts with the same tone of bemoaning the meager state of scholarship dedicated to studying non-conformist sexuality in the modern Arab World. The two most comprehensive survey essays are both entitled a note and an agenda to emphasize their preliminary findings. See, Asad Abu Khalil, A Note on the Study of Homosexuality in the Arab/Islamic Civilization, THE ARAB STUDIES JOURNAL 32 (Fall 1993) [hereafter Khalil, Note on Homosexuality], and Bruce W. Dunne, Homosexuality in the Middle East: An Agenda for Historical Research, 12 ARAB STUDIES QUARTERLY 55 (Summer/Fall 1990) [hereafter Dunne, Homosexuality: An Agenda].. 6 There is an emerging scholarship that has been attempting to make the connection between Queer and Postcolonial Theory. While much of the work is new, and still in a very preliminary stage, much of it

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theory could be genealogically understood as off-shoots of the general turn to Poststructuralism in the field of literary criticism. In a basic sense, both theories aim to problematize and transcend the ruling binaries that control the disciplinary fields in which they intervene. For Postcolonial theory, it is the East/West binary that forms the main target of resistance by scholarship in the field. Postcolonialism does so by exploring the hybridity inherent in the aftermath of the colonial encounter to provide a reading of the postcolonial condition that cannot be categorized neatly under the rubrics of East or West. 7 On the other hand, Queer theory aims to resist the hetero/homo binary in which contemporary identity politics in post-industrialist societies is habitually articulated. 8 By resisting this binary, queer theory insists that identity is performativity articulated as the effect of regulatory mechanism a constrain queer theory attempts to transgress, subvert, and disrupt. 9 By doing so, queer theory provides a deeply insightful critique of contemporary American gay-identity politics and insists on a more fluid understanding of human sexuality. Resistance to the two binaries East/West and Hetero/Homo come together in the last section of this article as I attempt to outline an alternative human rights agenda that is critical of both Orientalist notions of sexuality in the East as different from that in the West, as well as of the globalization of American gay-identity politics in the human rights field as oblivious to the queer nature of postcolonial sexuality in Egypt. Two major caveats are in order. To my mind, the coming together of Poco and Queer insights in a common project could prove dangerous on two theoretical and political levels. The first danger lies in the possibility of romanticizing the precolonial past. To the extent that Postcolonial Theory is viewed as a step towards theoretical resistance to
provides very useful insights to which this article is indebted. See Terry Goldie, Queerly Postcolonial, 30 ARIEL 9 (1992); CINDY PATTON & BENIGNO SANCHEZ-EPPLER, EDS., QUEER DIASPORAS (2000); Elizabeth Povinelli & George Chauncy, Thinking Sexuality Transnationally, 5 GLQ 439 (1999). A major attempt to collect this emerging literature can be found in JOHN C HAWLEY, ED., POST-COLONIAL QUEER: THEORETICAL INTERSECTIONS (2001); another major contribution is JARROD HAYES, QUEER NATIONS: MARGINAL SEXUALITIES IN THE MAGHRIB (2000). 7 In terms of influence, the present article is particularly indebted to the insights developed in the following literature: EDWARD SAID, ORIENTALISM; HOMI BHABA, THE LOCATION OF CULTURE. Applications of Postcolonial theory to the field of law is especially pronounced in the field of South Asian studies; see especially, Nathaniel Berman . There is little application in the area of the middle east, however Tim Mitchells groundbreaking work on Egypt represents one major and influential exception to this rule. See TIMOTHY MITCHELL, COLONIZING EGYPT. Khaled Fahmys scholarship on early applications of criminal law in the late nineteenth and early twentieth century is another very important contribution to the field. See Khaled Fahmy, , ISLAMIC LAW & SOCIETY. 8 In terms of influence, the present article is particularly indebted to the insights developed in the following literature: MICHEL FOUCAULT, HISTORY OF SEXUALITY, Volume I; JUDITH BUTLER, GENDER TROUBLE; THE TROUBLE WITH NORMAL ();EVE KOSOFSKY SEDGWICK, BETWEEN MEN: ENGLISH LITERATURE AND MALE HOMOSOCIAL DESIRE (1985). The scholarship of Janet Halley, which provides one of the most creative applications I know of Queer Theory to the field of law is equally important to this project. See Sexuality Harassment in . Duncan Kennedys article on Sexy Dressing is another early example of applying Queer Theory, intentionally or not, to the field of law. See Sexy Dressing, in DUNCAN KENNEDY, SEXY DRESSING ETC . As Halley notes, Queer theory is a disciplines that regards it as its privilege to resist clear cut boxing; nonetheless, an excellent introduction can be found in WILLIAM TURNER, A GENEALOGY OF QUEER THEORY (2000). 9 Rob Cover, Queer with Class: Absence of Third World Sweatshop in Lesbian/Gay Discourse and a Rearticulation of Materialist Queer Theory, 30 ARIEL 29 (1999), at 30.

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the mystifying amnesia of the colonial aftermath, 10 and Queer theory points towards a reclaiming of the fluid nature of sexuality, one could easily end up giving a rosy picture of precolonial sexuality as tolerant of fluid sexual deviance of the queer type. I wish to affirm here that this is not my intent. I do not mean to argue that sexuality under Islamic law, prior to the colonial encounter, was of the lfuid type one might hope to transform into a political agenda under Queer theory insights. All I mean to do is to argue for a strategic picking and choosing of historical insights that postcolonial work makes available. The second danger has to so with cultural relativism: my goal in this article is not to argue that sexuality in the East is radically different from that in the West, thus necessitating a different human rights agenda that is sensitive to the claims of cultural specificity. Rather, my argument is that sexuality is fluid both in the East and in the West, leaving human rights activists working in the American context subject to the same critical insights applying to their counterparts working in Egypt.

1. Orientalism Again In several sections of his seminal book, Orientalism, Edward Said touches upon sexuality as an important theme that cuts across much of the Orientalist literature spanning from the Maghreb (Morocco, Algeria and Tunisia) all the way to Eastern borders of the Ottoman Empire (from Egypt, to Syria, Iraq and the Arabian peninsula). In one especially relevant passage, worth quoting in, Said argue that: with regard to the Orient, there was a frank acknowledgment that it was a world elsewhere, apart from the ordinary attachments, sentiments, and values of our world in the West [] what [Flauberts characters] realize they want comes easily to their daydreams packed inside Oriental clichs: harems, princesses, princes, slaves, veils, dancing girls and boys, sherbets, ointments, and so on [] the association is clearly made between the Orient and the freedom of licentious sex [] so the Orient was a place were one could look for sexual experience unobtainable in Europe. Virtually no European writer who wrote on or traveled to the Orient in the period after 1800 exempted himself from this quest: Flaubert, Nerval, Dirty Dick Burton, and Lane are only the most notable. In the twentieth century one thinks of Gide, Conrad, Maugham, and dozens of others. What they looked for often correctly I think was a different type of sexuality, perhaps more libertine and less guilt-ridden [] In time Oriental sex was as standard a commodity as any other available in the mass culture 11 Saids point, which I adopt whole sale in this article, is thus the production of an image in western discourse on the Orient portraying the latters sexuality as more corrupt and licentious than anything available in Europe. The Orient thus suggests not only fecundity but sexual promise (and threat) as well. For all its promises of licentious
10 11

LEELA GANDHI, POSTCOLONIAL THEORY: A CRITICAL INTRODUCTION (1998), at 4. EDWARD SAID, ORIENTALISM (1979), at 190.

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bounty, Oriental sexuality is equally portrayed as both dangerous and threatening, in need of control and regulation. It is this threat, lurking behind the libertine promise, which I argue catapults the British colonial officer in late nineteenth century Egypt to intervene aggressively in regulating the colonial subjects sexuality by introducing a series of laws that govern the field of public hygiene. More specifically, it is the threat of what Said refers to as sexual experience unobtainable in Europe which demanded such strict legislative intervention. But what are these sexual experiences unobtainable in Europe, what do they involve, and how are they portrayed in the Orientalist literature? What does Said mean exactly when he refers laconically to this different type of sexuality which posses as both threat and promise in the Orientalist literature? Said does not provide much help in answering this question. Indeed, one of the current critiques of his work on the subject is how his analyses of colonialist erotics remain ensconced in conspicuously heterosexual interpretive frameworks. Saids failure to account for homoerotic elements in Orientalist pursuits is a telling omission. [His] theorization of Orientalism has invaluably served to draw scholarly attention to the discursive paths whereby the Arabic Other has come to represent one [of the Wests] deepest and most recurring images of the Other. [Yet the] threatening excess of this otherness has most often been gendered as feminine, and hence sexually available so it can be penetrated. 12 In the following pages I will draw heavily on the emerging literature developing this critique of Saids scholarship. The image that emerges from the literature review that is to follow is that of Oriental sexuality as libertine and corrupt, highly tolerant of deviant sexual practices such as sodomy, and rarely if ever intervening to condemn it. It is this image which gives way at the end of the nineteenth century to British colonial legislations intervening to stop the threat of the colonized subjects sexuality from running amuck to dangerously unhygienic ends. 13 A good place to start our review is Richard Burtons translation of the Arabian Nights. In the Terminal Essay to the translation, Burton dubs the geographic/ontological space of the Orient as a Sotadic Zone where sodomy is popular and endemic, held at worse to be a mere peccadillo, whilst the races to the North and South of the[se] limits as a rule, are physically incapable of performing the operation and look upon it with the
Joseph Boone, Vacation Cruises; or, The Homoerotics of Orientalism, in POST-COLONIAL QUEER: THEORETICAL INTERSECTIONS (John C Hawley, ed., 2001), at 44-46. 13 In particular, I will rely on the following materials: Joseph Boone, Vacation Cruises; or, The Homoerotics of Orientalism, in POST-COLONIAL QUEER: THEORETICAL INTERSECTIONS (John C Hawley, ed., 2001). In the same vein, and in response to Boones critique of Said, JARROD HAYES, QUEER NATIONS: MARGINAL SEXUALITIES IN THE MAGHRIB (2000), at 27-29. Much of the literature review provided in this section is deeply indebted to the groundbreaking work conducted by Boone and Hayes on the subject. For more specific examples of homoeroticism in Orientalist literature, see Joseph Boone, A Mapping of Male Desire on Durrells Alexandria Quartet, 88 SOUTH ATLANTIC QUARTERLY 73 (1989); Rubbing Aladins Lamp, in NEGOTIATING LESBIAN AND GAY SUBJECTS (Monica Dorenkamp & Ricahrd Henke, 1995). Other mapping exercises include: Asas AbuKhalil, A Note on the Study of Homosexuality in the Arab/Islamic Civilization, THE ARAB STUDIES JOURNAL 32 (Fall 1993); Bruce Dunne, Homosexuality in the Middle East: An Agenda for Historical Research, 12 ARAB STUDIES QUARTERLY 55 (Summer/Fall 1990).
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liveliest disgust. 14 Fifty years earlier, and his hugely influential study on the Modern Egyptians, Edward W. Lane echoes the same concerns as Burtons, using thinly veiled language to describe the Sotadic tricks played by a Cairo street entertainer and his young assistant, shying away to prudely dismiss them as several indecent tricks which [the entertainer] performed with the boy and which [Lane chooses to] refrain from describing; some of them are abominably disgusting. 15 That these disgusting tricks are played in the open, in a public street, with the potential of only escalating in libertine intensity if they were to be performed in the even more unfettered context of a popular festivity or mulid, serves to explain the British eventual intervention to regulate such public spaces in the name of sanitization. The representation of Oriental sexuality as deeply tolerant of sodomy can be traced even earlier and found in the writing of one of the most influential British philosophers and law makers, Jeremy Bentham, who notes in 1780 that [e]ven now, wherever the Mahometan religion prevails, such practices seem to be attended with but little dispute 16 Though all the above sources are British, it should not be assumed that the French did not contribute deeply to the representational project of a corrupt Oriental sexuality. Savants involved in that seminal mapping project of the Orient, namely La Description de lEgypt, provided one of the first scientific accounts of the state of sexuality in the east, articulated in the fuzzy terms of sociology, anthropology, and statistics all combined. 17 Several French writers were most instrumental in producing a more unstable image of Oriental sexuality as a space replete with fluid homoeroticism, threatening to flip at any minutes from the heterosexual to the homosocial, and from there to the homoerotic and back again. In other words, Oriental sexuality becomes associated with an even more dangerously uncategorizable vice: bisexuality. In this reading, Oriental sexuality does not merely present itself as the opposite Other of the West, in terms of clean-cut homo/hetero binary. Rather, Oriental sexuality is all the more promising and troubling, it is all the more dangerous, precisely because it resists the homo/hetero binary. Gustave Flaubert provides us with perhaps the best example of this reading. The core attribute that emerges from his representation of Oriental sexuality is that of fluidity: in the characters he chronicles during his sjour in Egypt (1849-50), as well as his own sexual activities found in his notebooks, journals, and letters, all point to a fluid sexuality that constantly flips between different homo/hetero acts and thus resists any clear categorization as decidedly homosexual or heterosexual, an even more scandalous proposition than the straightforward representation of Oriental sexuality as pro-sodomy. 18 Indeed, the unfathomable fluidity of Oriental sexuality for Flaubert is

14

SIR RICHARD BURTON, THE BOOK OF THE THOUSAND NIGHTS AND A NIGHTS: A PLAIN AND LITERAL TRANSLATION OF THE ARABIAN NIGHTS ENTERTAINMENTS (1885-86), vol 10, at 177-79. 15 SIR EDWARD WILLIAM LANE, AN ACCOUNT OF THE MANNERS AND CUSTOMS OF THE MODERN EGYPTIANS (1898), at 391. 16 JEREMY BENTHAM, WORKS OF JEREMY BENTHAN (John Bowring, ed., 1962), at 175. 17 See, e.g., (Citoyen) Renati, Topographie physique et mdicale du viex Kaire, LA DECADE EGYPTIENNE (An VIII de la Republique Franaise). 18 See generally, GUSTAVE FLAUBERT, FLAUBERT IN EGYPT, A SENSIBILITY ON TOUR (Francis Steegmuller, ed & tans., 1979).

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echoed in his later summation of his experience in the Orient, where the more you concentrate on it [in detail] the less you grasp the whole. 19 A somewhat detailed reading of Flaubert may be useful in explaining this point. Following his different activities while in Egypt, one finds Flaubert constantly adrift between, often simply stumbling upon, experiences that flip from the heterosexual to the homosocial to the homosexual, and from there back again to heterosexual affirmation. In Flauberts Egypt, an entire continuum of sexuality thus seems available, with bisexuality emerging as the norm to which no one seems to object. First, Flauberts heterosexual escapades are chronicled in his affair with Kuchuk Hanem, a famous Egyptian dancer and courtesan who later on serves as the prototype for his work on Salammb and Salom. By harking upon Kuchuk, Said argues she becomes in Flaubert structuring of the Orient a disturbing symbol of fecundity, peculiarly Oriental in her luxuriant and seemingly unbounded sexuality... doomed to remain barren, corrupting, without issue. 20 But Kuchuk is not Flauberts only experience in Egypt. We find him gradually moving between the homosocial and the homoerotic as he chronicles another exotic performer who was the first to catch his eyes in Egypt. The exotic dancer here is male, however, and a male to whose lascivious pantomime, (semi)female garb, and Kohl-painted eyes Flaubert exclaims But we have seen male dancers. Oh! Oh! Oh! 21 His later experience in the public bath finally provides a further move along the continuum of available sexualities on to the realm of the decidedly homoerotic. Often cited and recited with exasperating recurrence, Flauberts letter to Louis Bouilhet dated January 15, 1850, is an excellent indicator worth quoting in detail yet again: Since were chatting about berdaches, heres what I know of them. Here its quite well accepted. One admits ones sodomy and talks about it at the dinner table. Sometimes one denies it a bit, then every one yells at you and it ends up getting admitted. Traveling for our learning experience and charged with a mission by the government, we see it as our duty to give in to this mode of ejaculation. The opportunity hasnt presented itself yet; nonetheless, we are looking for it. Its practiced in the baths. One reserved the bath for oneself and one takes ones boy into one of the rooms. By the way, you should know that all the bath boys are berdaches. 22 Other French writers, such as Balzac, Gide and Genet to name only a few, have all contributed in the same vein to the representation of the Orient as a space of fluid sexuality, with a continuum of sexual acts available that resist the binary constraints of
Cited in SAID, ORIENTALISM, 189. SAID, ORIENTALISM, 187. For an overview of the Orientalist dimensions in Flauberts writing, see generally 184-92. 21 Cited in Boone, Vacation Cruises, supra note , at 49. Boone points out Saids failure to sufficiently take account of this encounter as yet another example of his general failure to take account of orientalisms homoerotic pursuits. Gerard de Nerval recounts a similar story where he was delighted to discover that the dancing girls before him turn out to be boys. See GERARD DE NERVAL, THE WOMEN OF CAIRO VOL 1 (1930). 22 Translation from HAYES, QUEER NATIONS, supra note , at 30.
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Western sexual identity and provide the writers with a possibility to explore their marginalized desires without especially endangering their heterosexual self-definitions. My goal here, however, is not to provide an exhaustive mapping of the Orientalist discourse produced on the subject. Neither will I engage in critiquing it as merely more telling of Western attitudes than of the Oriental other it aims to represent. 23 This has been covered elsewhere in much more detail. 24 Rather, my goal here to point out how Egypt emerges from this literature to occupy an especially prominent position as the land of delight and infamy. As Boone notes, [o]f all the regions of the Near East, Western writers most readily came to associate Egypt with the spreading contagion of homosexuality [In] a score of occidental writers, from Gerard de Nerval and Flaubert to Lawrence Durrell and Norman Mailer the dazzling spectacle of Cairene and Alexandrian life is transformed into an emblem of the psyches overflowing plymorphous desires. 25 With such a stark image of corrupt sexuality in mind, it becomes easier to understand the context in which the British colonial officer thought himself to be intervening in when adopting the various legaislative reforms regulating late nineteenth century sexuality in Egypt. It is to examining this legal project of governance that I will now dedicate the remaining pages of this section.

2. Sexuality Governance: On the British Colonial Officer If one adopts a Foucauldian timeline on the history of sexuality, 26 the first thing to note here is the chronological congruence between the adoption of British legal reforms in Egypt, and the rise in Europe of a different project of sexuality governance. To the extent that this project adopted a medicalizing approach in constructing discipline and surveillance mechanism used by the modern state to police the sexual mores of its citizens, the same medicalizing approach colors British colonial legislation regulating sexuality in Egypt. More specifically, following the countrys occupation by the British Empire in 1882, a series of legislations were implemented to guarantee the good hygiene of the new colonial subjects. While this process of medicalizing the population as a rising form of state discipline started well before the actual occupation of Egypt with the emergence of national modernizing elite, especially with respect to the army, 27 the process hugely accelerated following British military occupation. In particular, more
See on that note, Everett Rowson, The Categorization of Gender and Sexual Irregularity, in MEDIEVAL ARABIC VICE LISTS, IN BODY GUARDS: THE CULTURAL POLITICS OF AMBIGUITY (Julia Epstein & Kristina Straub, 1991). 24 Said, Orientalism, , [??cite other sources??]. 25 Joseph Boone, Vacation Cruises; or, The Homoerotics of Orientalism, in POST-COLONIAL QUEER: THEORETICAL INTERSECTIONS (John C Hawley, ed., 2001), at 51. On the emergence of Egypt as a central object of European representation, an object for display to the occidental viewer, see TIMOTHY MITCHELL, COLONIZING EGYPT (1988). Antonia Lant, by contrast, argues that Egypt has always occupied a more liminal space in the European imagination, as a historical foothold between East and West, Europe and Africa, never allowing its representations to be just about the other. See Antonia Lant, The Curse of the Pharoah; or How Cinema Contracted Egyptomania, OCTOBER 59 (1992), pp. 86-112. 26 See generally, MICHEL FOUCAULT, HISTORY OF SEXUALITY. 27 See KHALED FAHMY, ALL THE PASHAS MEN.
23

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attention was given to adopting urban sanitary measures to regulate what Dunne calls the popular domains of illicit sexuality such as the coffeehouses, the hamams or public baths, the brothels and taverns, and finally the mulids or popular festivities and processions. 28 For the colonial officer, all of these domains epitomized the corrupt and dangerous side of sexuality outlined in the Orienatlist literature discussed above. Two particularly disturbing manifestations of the corruption thus associated with Oriental sexuality fell under the scope of these laws, namely prostitution and homosexuality. Both were perceived in medical terms as a threat to the Colonys hygiene, and thus both came to be regulated under the equally medicalizing project of public sanitization in an overall governance project adopted by the rising centralized and bureaucratic Egyptian state. 29 Scabies and Syphilis topped the list of dreaded venereal diseases which the British set out from the outset to combat, and various sanitization measures were introduced in response. Prostitutes were required to register with the ministry of health, appear for regular inspection, and face potential quarantine in specially designated hospitals if found to have contracted any of the listed diseases. Annual tables were produced by the ministry of health listing the names of registered prostitutes in every city, the medical examinations they underwent, and the number of hospital admissions from specified diseases. Public venereal disease clinics were set up in yet another attempt to insure public hygiene, especially among the resident soldiers of the British army of occupation. In the same vein, a Cairo Purification Committee was set up to improve the welfare and health of the troops, suggesting, among other things, the public dispensation of prophylactics (including ointments). Other laws severely restricted interracial marriages and regulated the white slave trade under the same rubric of a medico-moral intervention in corrupt social practices.30 More pertinent to our topic, in the context of drafting a new criminal law for Egypt, the British colonial officers saw Egyptians as addicted to [homosexual] vices that are less common elsewhere. 31 Under the Native Penal Code, promulgated in 1883, consensual homosexual acts was not deemed unlawful as such, although sodomy was punishable as an indecent assault or attentat la purdeur when accompanied by force or violence, and as public indecency or outrage public la purdeur when committed under in a context violating public morality or involving a minor child. 32 These articles were adopted from the French criminal code at the time, and the British soon decided that country was in need of another criminal code that would prove more effective in combating what they perceived as widespread homosexuality. The desire to protect the army of occupation from the corrupt Egyptian context that surrounded them could not be
See BRUCE DUNNE, , at 59-75. This segment of the article is heavily indebted to the pioneering work conducted by Dunne in his doctoral dissertation. Everything I learnt on the topic I learnt from his thesis. It is a pity that the dissertation remains an unpublished manuscript since it provides the only systematic and academically rigorous source I have been able to find on the subject of sexual governance in the postcolonial Arab world. 29 For an overall discussion on the rise of meticulous and uniform bureaucratic power of disciplining in Egypt, see MITCHELL, COLONIZING EGYPT. 30 See generally, Dunne, 137-170. 31 EGYPT, MINISTRY OF JUSTICE, DRAFT PENAL CODE (1917) at 153. 32 See, Dunne, 183.
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underestimated in the colonial project of regulating sexuality. While debating the new criminal code, the Cairo Police Cammandant Harvey reported that street prostitution was greatly on the increase and even more alarmingly, British troops were going to them. It made things all the more disturbing that 25% of those arrested in this context suffered from venereal diseases. 33 Unlike its French inspired antecedent, the draft British colonial criminal code proposed to explicitly criminalize a series of offenses against morality, including sodomy. In the interim, and until a more stringent code would be adopted, 34 a number of homoerotic spaces came under the direct regulation of the state, once again under the rubric of public health: brothels with dancing boys, public baths, coffeehouses of ill repute, mulids and other spaces where male sexuality could possibly run amuck didnt escape from sanitary regulation. Measures for the conditions of construction and operation of public houses were introduced and placed under the supervision of the ministries of health, interior and the emerging police force. More strict supervision of other spaces was equally legalized for purposes of insuring urban sanitary standards. The purpose was to lay to rest such horrors as those described by one British visitor to such spaces, who had to descend into somber and sinister origins, stepping on all kinds of indescribable things, slimy and slippery or hard and gritty by turns. 35 The end result of these interventions in terms of repressing Egypts open, fluid and tolerant homoerotic culture is bemoaned by Dunne who argues that far more effective in undermining the long history of social acceptance of homosexual practices in Egypt was the rise of new professional and middle classes championing the values of their European counterparts. Homosexual practices would be found incompatible with the new or reformed Egyptian character upon which the modern Egyptian nation was to be constructed. 36 Thus, in pursuit of presenting the British occupiers with a respectable image of Egyptian nationalism, the emerging nationalist elites ended up adopting the same sexual morality that characterized their occupiers, reenacting a general thesis about the derivative nature of third world nationalism. 37 A recent report on the dwindling state of public bathhouses in Cairo confirms this point: From seventy-seven public baths in late 18th century Cairo, the number dropped off to forty-nine in 1909, and finally seventeen only by 1992, a shocking number if one keeps in mind that this is a city of over eighteen million inhabitants today. 38

Dunne, 188. It should be noted that the draft criminal code was never adopted, however, as the post World War I moved the national movement to the fore and stalled any attempt by the British to Anglicize the legal system. 35 Lancet, 1909, cited in Dunne at 89. 36 Dunne, at 108. 37 See George Mosse, Nationalism and Respectability: Normal and Abnormal Sexuality in the Nineteenth Century, 17 JOURNAL OF CONTEMPORARY HISTORY 221 (1982). 38 CEDEJ, Typologie et fonction sociale des hammams du Caire aujourdhui, SUPPLEMENT LA LETTER DINFORMATION NO.30 (1992).
34

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2. Sexuality Governance: On the Human Rights Activist At the turn of the twentieth century, British colonial discourse on the question of legal reform in Egypt was represented as a project of introducing modern laws to protect the hygienic interests of the colonized subjects from the unsanitary sexual practices that contaminated public space. The image there was one of a licentious society, engaged in all kinds of libertine sexual practices that put the countrys sanitary health at risk and therefore necessitated legislative intervention to regulate spaces where sexuality runs amuck. In other words, the image there was of sexuality in the east as an unregulated sphere of corrupt practices, necessitating the active intervention. Accordingly, the project there was one of regulation, namely the promulgation of colonial laws setting out sanitization requirements for safeguarding hygiene in public baths, coffee shops, popular festivals and other spaces where unregulated sexual intercourse is likely to endanger public health. Yet in constant competition with the image of Oriental sexuality as loose and corrupt, one also finds an alternative representation in Orientalist literature of the sexual governance regime as repressive, cruel and tyrannical. If Flaubert summed up the sexual scene while in Egypt by giving the nonchalant statement that here one admits ones sodomy and talks about it at the dinner table as a sign of societys tolerance to sexual deviance, an alternative image of Oriental sexuality equally permeates Orientalist discourse arguing for the exact opposite assessment of sexual mores in the East. Out of this image, one can trace an alternative sexuality governance project, namely that of the human rights activist seeking to address the repressive legal regime governing sexuality in Egypt today. Obviously, the above two projects adopt contradictory assessments of Egyptian sexuality, the former holding it as oppressive from the standpoint of todays human rights activists, whereas the latter found it too corrupt for the colonial administrator invested in securing the states role in regulating public hygiene. Despite the immediate differences these two discourses exhibit in terms of repressive/corrupt assessments of Egyptian sexuality, the two nonetheless share much more in common than one might initially expect: First, the two projects are, and in an equal degrees, projects of sexuality governance in which law is employed to formulate a normative ordering for the sexual practices of the modern Egyptians. While the human rights project of governance is deregulatory in its insistence on withdrawing state intervention from the sphere of sexuality, 39 the British colonial project adopted a regulatory vision of governance, intended to expand the centralizing states supervisory powers over its citizens.40

The language I use here has a conscious tone of economic development policy in it. Deregulation is the grand rallying cry of the current neo-liberal project in economic reform whereby the state is encouraged by international financial institutions such as the IMF and the World Bank to withdraw its intervention from the economic sphere. The Egyptian government is subject to the same deregulatory conditions that other developing countries in the world today are subject to with respect to questions of economic reform. The homology in tone between these two discourses stops here however. I merely use the terminology to emphasize my point, without making any deep structural claims between contemporary human rights and economic reform discourses. For an excellent introduction to the legal aspects of neo-liberal economic

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Second, the above two projects seem to have contradictory views on the nature of Egyptian sexuality, with the human rights activist viewing it as repressive to sexual deviance, and the British colonial officer by contrast finding it too corrupt and inclined towards engaging in deviant sexual practices. Despite their apparent differences, I argue that that both the human rights activist and the British colonial officer share a common Orientalist genealogy. From travel literature in the East, to historical, philosophical and sociological accounts of the area, one finds Orientalist engaged from the seventeenth century onwards engaged in representations of sexuality in the East that have systematically oscillated between the two poles of corruption and repression. Homosocial spaces of diffused eroticism, 41 such as the coffee shop, the bath, the Harem and the festivities of the popular mulids celebrating the birthdays of Muslim saints, have all been subject to competing representations in Orientalist literature, once as dangerously libertine spaces of corrupt, fluid and uncontrollable sexuality, and other times as deeply repressive social structures that legitimate a patriarchal and homophobic order. In terms of legal intervention in those spaces, both British colonial and human rights assessments of sexuality in Egypt find their genealogical origins in this internally split Orientalist representational tradition, with the colonial project pulling more towards the pole of sexuality as corruption, and the human rights project pulling towards the alternative pole of sexuality as repression. It must be stressed at the outset that my interest here is not to answer the question of whether sexuality in the East is really corrupt or repressive, neither is it to vindicate one of those two readings against the other? Aside from being an unproductive question to pursue, I believe answering it is irrelevant to the project at hand. My claim is simply that both the corrupt and repressive representations of sexuality are emanations of the same ideological project of Orientalism, ideological in the sense outlined by Althusser as a representation of the imaginary relationship of individuals to the real conditions of existence. 42 My interest lies in exposing how these two competing representations are deployed to produce two distinct governance projects that nonetheless share a lot in common. I will be satisfied if the reader comes out from the following section even marginally suspicious that the human rights activists response to the Queen 52 case was as much about power and governance as that of the British colonial officer before him. [The following needs further work -From the medicalization of sexuality governance under the slogan of public hygiene, we get a rights-ification of regulation under the slogan of gay identity. -Human Rights Watch Report
reform, see KERRY RITICH, RECHARACTERIZING RESTRUCTURING (S.J.D. dissertation, Harvard Law School Library) 40 See generally on the topic, TIMOTHY MITCHEL, COLONIZING EGYPT (New York: 199). 41 I borrow the term from Eve Sedgwicks scholarship on the subject. Sedgwick coined the term homosocial to describe the social bonds formed between persons of the same sex, bonds that can be distinguished from, yet exist on a continuum with, homosexual desire. See EVE KOSOFSKY SEDGWICK, BETWEEN MEN: ENGLISH LITERATURE AND MALE HOMOSOCIAL DESIRE (1985). 42 See Louis Althusser, Ideology and Ideological State Apparatuses, in THE NORTON ANTHOLOGY OF THEORY AND CRITICISM (Vincent B Leitch, gen. ed., 2001) 1498-1502.

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-WHO Report -Rights discourse versus procedural focus on torture]

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II. THE PRE-COLONIAL MOMENT: LIWAT UNDER ISLAMIC LAW

Liwat is the operative legal term under which Islamic law prescribes the criminalization of sex between men. Etymologically, the term is either derived from the verb lata, meaning to attach oneself, or alternatively represents a denominative of the noun Lut, the Arabic name of the biblical prophet Lot as described in the Koran. 43 The criminalized act of liwat applies to any form of sexually attaching oneself to another man (wati), whether through strict anal intercourse (iqab) or otherwise. Medieval Islamic jurists have sometimes resorted to the same term when debating the legality of heterosexual anal intercourse as well. 44 My goal here is to map out the governance of liwat under Islamic law as it stood before the colonial encounter. The project is admittedly overambitious and its scope is therefore subject to the following constraints. First, the map I offer here is purely juristic: I rely exclusively on the legal opinions (fatwa) and treatises (shorouh) of medieval Islamic law scholars (ulama), with no reference to case law and very little analysis of how the legal regime may have interacted with medieval society. Second, while the various jurists of Shia and other minority schools of Islamic law have as much to offer on liwat as their medieval colleagues of the Sunni majority, an excursion into minority jurisprudence is outside the scope of this article. Instead, the discussion is consciously limited to legal opinions developed across the four principle schools of Sunni jurisprudence. 45 With these necessary caveats in mind, the argument presented in this section is two fold. First, while medieval Islamic law jurists are all in consensus on the criminalization of liwat, they have nonetheless disagreed in determining the source of its illegality. This disagreement caused the jurists to express significantly different conceptual views on the proper categorization of liwat, and from there to adopt radically different positions on its required punishment. These differences of opinion exist between the jurists of the four schools of Sunni jurisprudence as well as within the juristic community of each of these schools. Accordingly, to the extent that one can speak with any coherence of an Islamic Criminal Law on liwat, it is a normative structure both unified in its blanket condemnation of the crime yet richly multi-vocal when it comes to the determination of punishments. Second, I argue that the criminal law norms on liwat did not exist in a legal vacuum. Rather, they were part of a larger legal system and their application was therefore mitigated through the background procedural norms of Islamic law. More specifically, the strict rules of evidence adopted across the four schools of Sunni jurisprudence set such high standards of proof that one finds it difficult to imagine how any of the criminal law punishments for liwat would ever receive practical application. Additionally, the

See generally, Encyclopedia of Islam, CD-ROM Edition, v1., Liwat. The operative term here is Al-Liwatah Al-Sughra. 45 In the following pages of this article the term Islamic Law is therefore strictly limited to the opinion of Sunni jurists.
44

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doctrine of al-amr bel-marouf wal-nahy an al-monkar, 46 which loosely translates to commanding right and forbidding wrong, provides interesting insights into Islamic law norms on the question of privacy which may equally set limits on the foreground criminalization of liwat. A fuller understanding of sodomy under Islamic law would therefore require us to take into account both the internal differences of opinion on criminal law punishments which divides the medieval schools of Islamic jurisprudence, as well as the external limitations set on these juristic opinions by virtue of procedural norms under Islamic law.

A. Islamic Criminal Law: Foreground Norms on Liwat Some introduction to the sources of Islamic law is necessary if we are to understand why Islamic jurists have disagreed on the prescribed punishment for liwat. A brutally summarized version runs as follows: 47 Under traditional usul al-fiqh, or the principles of Islamic Jurisprudence, 48 a jurist seeking to find the legal answer to any problem at hand should proceed in his search through four principle sources of law. First, the jurist should investigate the Koran for divinely revealed law. If the holy text does not contain any prescribed normative regulation for the legal question, then the jurist should move on to the second source of Islamic law, namely the Sunna or tradition as laid out by the prophet Mohammed, typically located in a verbal saying or hadith. Given the large amount of Sunna circulating after the prophets death, Islamic jurists developed tools of authentication under the rubric of Ilm al-rijal, or the science of men, in order to examine the rectitude and reliability of the chain of transmitters or isnad relaying the Sunna back to the prophet Muhammad, adopting the stronger isnad and dismissing the weaker one. If the jurist finds the Koran and Sunna to be devoid of clear normative regulation for the question at hand, he should then move to the third source of Islamic law, namely Ijmaa or consensus of the companions of the prophet, and if that also proves unhelpful he should then resort to the fourth source of law, namely Qiyas. In its most basic form, the latter is a tool of analogical reasoning through which prescribed norms in the Koran, Sunna or Ijmaa can be extended to unregulated legal problems if they share the same illa or ration legis. For example, the Koran explicitly prohibits wine but does not touch on other forms of alcohol. In response to this normative vacuum, medieval jurists argued that the illa of prohibiting wine was its intoxicating effect and relying on qiyas extended the wine prohibition to all other intoxicating substances. By the same token, they extended the divinely prescribed punishment for wine to other types of alcohol, and eventually to drugs in contemporary jurisprudence. 49

46 47

For a more detailed analysis, see [??citation??] 48 For a detailed analysis of the history of jurisprudence, four schools etc see [??citation??] 49 Aside from these four sources there are other sources see [??citation??]

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The crimes and punishments derived from the above four sources of Islamic law are classified under one of only three categories, namely hadd, qasas/diyya, and taazir. Hadd offenses entail fixed penalties which are considered to be the right of God, meaning the judge has no discretionary power in the hadds application and the punishment must be enforced even if the plaintiff forfeits his private standing in the dispute. Qasas/diyya offenses also entail fixed penalties with no judicial discretion in their application. However, these penalties are considered to be the right of man and accordingly leave the plaintiff to choose between demanding the application of the prescribed qassas/diyya or to forfeit his claim altogether. Finally, taazir offenses do not have a prescribed penalties attached to them. Instead, Islamic law offers discretionary guidelines and the judge is left to decide on the severity of the penalty based on the specifics of each case and the policy or siyasa directives of the exective authorities. 50 There are four main schools of Sunni Islamic jurisprudence, each named after its founding jurist, namely the Maliki, Hanafi, Shafii, and Hanbali schools of law. The historical development of these schools is not the subject of this article. Suffice it to say that medieval jurists belonging to all four schools are in consensus with respect to the hierarchy of sources under Islamic Law as detailed above. They also all agree on the tripartite classification of crimes and punishments into hadd, qassas/diyya, and taazir. Moreover, jurists across the four schools agree that the number of offenses entailing hadd or qassas/diyya penalties is predetermined under Islamic law and cannot be increased upon. By contrast, while some taazir offenses are explicitly regulated in the sharia, the absolute majority is left to the discretionary power of both executive and judicial authorities. The crimes and punishments under taazir are therefore liable to change depending on the needs of the time. Extramarital sex, or zina is the paradigmatic hadd with respect to sexual offenses under Islamic criminal law, and its rules are often intertwined with those regulating liwat. For zina, the Koran explicitly prescribes a hadd of 100 lashes if the convicted offender is unmarried, 51 while the Sunna prescribes the hadd of stoning to death if the offender is married and has committed adultery. 52 While the four schools of law agree on these penalties, they nonetheless disagree on whether exile is also a hadd that should be coupled with the penalty prescribed for unmarried offenders. Majority opinion among Shafii and Hanbali jurists holds that exile is a required hadd based on the Sunna, and requires its application to both male and female offenders. Jurists of the Maliki school
See generally, Noel Coulson, Regulation of Sexual Behavior under Traditional Islamic Law, in GIORGIO LEVI DELLA VIDA, (ED), SOCIETY AND THE SEXES IN MEDIEVAL ISLAM (1979), pp. 63-68. 51 Q24:2 The fornicator and the fornicatress flog each of them with a hundred stripes. Let not pity withhold you in their case, in a punishment prescribed by Allah, if you believe in Allah and the Last Day and let a party of the believers witness their punishment. MEANINGS OF QURAN, at 466. The Arabic original reads: " ". 52 For the leading sunna on the subject in English, see Sahih Al Bokhari, vol 8, hadith no 819. For the text of alternative sunna to the same effect in Arabic, see Ouda, pp. 377-79. The one dissenting opinion is the Azareqa, an off shoot of Al-Khawarej. They refuse to rely except on hadith mutawatir and do not consider the hadith as such.
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generally agree but limit exile only to male offenders, while the Hanafis argue exile is not explicitly prescribed under the sources of Islamic law and is therefore a taazir punishment whose application is left in the discretionary power of the judge. The jurists have also disagreed on the proper meaning of exile, with the majority opinion among Maliki and Hanafi schools holding it to mean imprisonment in a town other than the one where zina was committed, while Shafii and Hanbali jurists limit the hadd to exile in another town, under surveillance but without imprisonment. 53 Unlike zina, which is uniformly classified as a hadd offense across the four schools of law, medieval jurists have disagreed on the proper classification of liwat and whether it entails hadd or taazir punishment. Moreover, even among those jurists who argue liwat is a hadd offense, they nonetheless disagree on whether the source of the penalty is directly derived from the Sunna, or alternatively prescribed through qiyas to the hadd of zina, with the different opinions leading to contrasting views on the prescribed punishment for the offense. In order to appreciate the significance of these differences in opinion, I will now take the reader through the four main sources of Islamic law and inquire with the medieval jurists on the prescribed legal treatment of liwat. As mentioned above, the first source of Islamic law is the Koran. Liwat appears in the Holy Text in two somewhat contradictory modes, the one severely punishable, while the other potentially sanctioned on earth as well as in heaven. In the first mode, reference to liwat is made in the context of the biblical story of the prophet Lot, decried in the Holy Book for their corrupt practice of al-fahisha or depravity. That the depravity is liwat is clear in some of the verses on the topic such as: You commit the carnal act, in lust, with men and not with women, you are indeed an impious people. 54 The divine punishment meted out to the people of Lot is also stated explicitly in the Koran, namely a hailstorm of baked clay that rained upon Lots village, killing every one that lived there with the exception of Lots immediate family, save for his wife. 55 In a second and radically different mode, various verses of the Koran may be interpreted as to sanction the act of liwat on earth, as well as in the afterlife. The first example concerns the legality of what is called minor liwat among married heterosexual partners. The operative Koranic verse here is Your wives are as a tilth unto you; so approach your tilth when and how ye will. 56 The English translation of the verse does not adequately convey the linguistic ambiguity inherent there. In the Arabic original, the single term anna is used in place of the two words when and how employed by the translation. The term itself is the locus of competing interpretations, as anna could easily accommodate the temporal sense of when ye will as well as the
53 54

See Abdel-Qader Ouda, pp. 380-83. THE KORAN, Surat al-Araf, 7:81. The Arabic original reads: "." 55 THE KORAN 7:84. The Arabic original reads: "." The story is retold in two other verses of the Koran with the same conclusion of God born death and destruction for the practice of liwat by the people of Lot. See, THE KORAN, 27:54-58, and 26:160-173. 56 THE KORAN 2:223. The Arabic original reads: "."

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positional sense of where ye will. In the latter sense, the verse has been traditionally used to legitimate anal sex with ones wife as lawful in the eyes of God. The context in which the verse was revealed is also used to corroborate this particular interpretation of the verse. Various traditions exist which give the account of an anxious Muslim, having just practiced anal sex with his wife, asking the prophet Mohammed whether he had thus committed a sin punishable as hadd. In one such authoritative interpretation, it is the eventual second caliph, Umar ibn al-Khattab, who approaches the Prophet saying I have been damned, oh messanger of God. When the prophet seeks more clarification from Umar, the caliphs answer is that he had spent the previous night in ferocious lovemaking with his wife. The verse is then revealed to the Prophet, setting Umars anxieties to rest by stating that your wives are as a tilth unto you; so approach your tilth when and how ye will. 57 It should nonetheless be noted that said verse is subject to competing interpretations that equally deny its applicability to the act of liwat among married couples. Such interpretations typically marshal competing prophetic traditions that warn against anal sex with ones wife 58 On the other hand, and in the context of describing the afterlife beauties and bounties that await the faithful in paradise, three different verses in the Koran mention the presence of ghilman or wildan, roughly corresponding to youths, who will wait upon or serve the faithful. One such verse, in enumerating the pleasures of paradise, states that And round about them will (serve) youths of perpetual (freshness): If thou seest them, thou wouldst think them scattered Pearls. 59 Another such verse states: Round about them will serve, (devoted) to them: youths (handsome) as Pearls well-guarded. 60 Those verses have lead to the same competing interpretations regarding liwat as those surrounding the tilth verse mentioned above. Questions abound as to the nature of such service or waiting that is offered the faithful in paradise, especially considering the perpetual freshness and pearl like beauty of the youths. As with the tilth verse, some interpretations have used these verses to argue that prohibited pleasures on earth such as liwat with attractive youth would be available in heaven to the faithful who have observed the prohibition on liwat and resisted the act when alive. 61 Other interpretations insist on the asexual function of these youths, restricting their service to the handing out of wine glasses to the faithful in paradise, another prohibited beverage on earth which would nonetheless become readily available in the afterlife. 62 Regardless of the competing interpretations outlined above, medieval jurists across the four schools of Sunni law agree on two points. First, that sex between men is
AL-TABARI, JAMEA AL-BAYAN FI TAFSEER AL-QURAN, part II, [Arabic] at 235. See also p 234 for two other stories giving the same context of revelation but with reference to different protagonists. 58 For competing interpretations of said verse, see IBRAHIM HAHMOUD, AL-MUTA AL-MAHZOURA (2000) [Arabic] pp.69-110. [hereafter, HAHMOUD, AL-MUTA]. 59 THE KORAN, Surat al Insan, 76:19. The Arabic original reads: "." 60 THE KORAN, Surat al-Tur, 52:24. The Arabic original reads: "." 61 See MOHAMMAD GALAL KISHK, BY COURT ORDER: THE THOUGHTS OF A MUSLIM ON THE QUESTION OF SEX (1992) [Arabic] at 205. 62 For competing interpretations on said verses, see HAHMOUD, AL-MUTA pp.145-227.
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unequivocally condemned in the Koran; and second, that despite this condemnation, the Koran is free of any clear prescriptions as to the penalty of liwat. Accordingly, the Koran is not relied upon by any of the four schools in determining whether the act constitutes hadd or taazir offense. By contrast, the second source of Islamic law, namely the Sunna, provides a clearer normative indication both as to the severe legal punishment for liwat in this world, as well as the eternal damnation that awaits the offender in the afterlife. There is a plethora of hadith on the topic, all of which are united in prescribing the death penalty for both participants in the act of homosexual liwat, much the same as the hadd for zina among married partners. One such canonical hadith, for example, has the Prophet stating: For whomever repeats the act of the people of Lot, kill both the active and the passive offenders. 63 Another such hadith extends the death penalty to unmarried offenders as well, thus surpassing the hadd of zina which limits the penalty to 100 lashes and possible imprisonment or exile in the case of unmarried offenders. 64 Some of the hadiths take an explicitly eschatological view of liwat, foretelling of its exponential prevalence int eh future and making this development one sign to the end of humanity and the coming of the final Day of Judgment where liwat offenders will find themselves more reprehensible than a carrion, and shall reek of revolting stink as they stand before God, whose throne trembles as the act is committed, and who in general will suffer 65 66 eternal damnation absent gods pardon through repentance. Despite the prevalence of Sunna on the punishment of liwat by death, there is no indication as to how the penalty should be enforced. Instead, severe applications of the punishment are largely accredited to the companions of the prophet, particularly under the first four Caliphs of Islam, and are sometimes presented as evidence of juristic consensus, or ijmaa on the issue. For example, with respect to men convicted of liwat, the first Caliph, Abu-Bakr, is said to have condemned one man to death by being buried alive under the debris of a collapsing wall, as well as prescribing another man to be burnt alive as an alternative punishment. The fourth Caliph, Ali ibn abi-Talib ordered the

63 64

The Arabic original reads:

." Kill the active and the passive offenders, whether either of them is married or not. The Arabic original reads: " ." 65 The Arabic originals read: " : " " ." 66 See also, Encyclopedia of Islam, CD-ROM Edition, v1., Liwat. While some of these hadiths are of dubious authenticity, there seems no doubt that the general prescription of the death sentence is based on an authentic hadith. A comprehensive collection of hadiths on the topic of liwat which argues the different claims to authenticity by each can be found in AL-NUWAYRI, AL-NIHAYA (no date of publication available).

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stoning of one man to death, and had another punished by throwing him head down from atop a mosques minaret. 67 Given the above sources on liwat in Islamic law, jurists from the four schools of Sunni law have all agreed on the condemnation of the act, but then disagreed in classifying the crime and therefore determining the punishment due. At one end of the spectrum, we the find the ruling opinion among jurists of the Maliki school of law who refuse the qiyas of liwat to zina and argue instead that liwat is an independently regulated hadd with its distinct penalty of stoning to death explicitly prescribed under the Sunna and applicable equally to both active and passive partners, whether married or not. 68 By contrast, and the other end of the spectrum, the majority opinion of the Hanafi school of law refuses to rely on the hadiths mentioned above and argues there is no authentic Sunna on the subject to merit classifying liwat as a hadd offense. Instead, the Hanafis classify liwat under taazir crimes and accordingly leave its exact punishment in the discretion of judicial and executive authorities. 69 However, there is also a minority opinion among Hanafi jurists who share the majoritys suspicion of the authenticity of the chain of transmitters regarding Sunna on liwat and refuse to treat it as an independent hadd, but then move on to analogize liwat to zina and extend the hadd of zina to sodomy through qiyas. 70 Under this minority opinion, the offender convicted of liwat should be stoned to death if married or receive 100 lashes if not, and the hadd would apply equally to both active and passive partners. 71 Finally, with respect to medieval jurists belonging to the Shafii and Hanbali schools of law, the majority opinion there is the same as the reigning opinion of Maliki jurists, namely that liwat is a hadd offense independent of zina and regulated under the Sunna with a prescribed punishment of death by stoning for both active and passive partners, whether married or not. However, some Shafii and Hanbali jurists have also adopted two other minority opinions worth mentioning here. One the one hand, some have adopted the minority opinion of Hanafi jurists mentioned above, i.e. liwat is analogized to zina, and the hadd prescribed for the latter offence applies to both passive and active partners, with stoning if the offender is married and 100 lashes if not. On the other hand, a minority of Shafii and Hanbali jurists reserve the hadd of stoning to only the active partner, whether married or not, and base this opinion on the Sunna. As for the passive partner, the same jurists prescribe the 100 lashes hadd of zina whether the offender is married or not, on the understanding that the full conditions of the stoning hadd can never
See generally, Encyclopedia of Islam, CD-ROM Edition, v1., Liwat. See also, AL-NUWAYRI, ALNIHAYA. 68 For detailed analysis, see ABDEL-RAHMAN AL-GAZIRY, AL-FIQH ALA AL-MAZAHIB AL-ARBAA (1971), part V, kitab al-hudud [Arabic]. 69 Al-Shawkani in his later commentaries points out the incongruity of the majority opinion in the school with the Sunna. 70 The operative hadith has the prophet stating: Sex between men is adultery The Arabic original reads: " ." 71 Opinion of Abu-Yusuf & Muhammad, see SHARH FATH AL-QADIR, Part IV, p150; SHARH BADAII AL-SANAII, Part VII, p. 24.
67

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be satisfied in the case of the passive offender since the hadd applies only to the case penetrating female orifices. 72 If the reader is by now confused as to the required punishment of liwat under Islamic criminal law, she should rest assured her confusion is warranted. Attempting to produce a generalized assessment of the views of each school is a difficult task since various jurists belonging to each of the four schools of jurisprudence sometimes lean towards dissenting opinions within the rubric of the very school to which they belong. For example, some Hanafi jurists have recommended that the prescribed tazir penalty of 100 lashes be mitigated, with the jurist Ibn Hazm going as far as reducing the number of lashes to ten. Others have argued for internal differentiations in the taazir punishment depending on the degree of debauchery to which the offensive act of liwat rises, with some jurists distinguishing anal penetration, which would trigger the maximum punishment available, and other lesser acts of liwat which do not rise to the level of penetration and accordingly deserve the mitigation of the tazir penalty. Indeed, these internal differences among the scholars within each school, not to mention between jurists of the four different schools, makes it very difficult to offer anything but an approximation of the reigning views under Islamic criminal law. 73 The following table is an attempt at collecting these diverse materials in some coherently recognizable form:

See Said inbn al-Mussayab, Ataa ibn abi-Rabah, al-Hassan al-Basry, Treatises: Al-Nokhaii, alThawri, al-Awzaii 73 For example, divergences within each school seems to point towards different doctrinal positions, so that even within the Shafii and Maliki schools, we find jurists who refuse to grant penal value to the distinction between married and unmarried culprits, prescribing the death sentence for both. See generally, HUSSEIN ALY AL-MUNTAZERY, KITAB AL-HUDOD, VOL I (no publication date), 143-66. Other areas of deviant sexuality are no less confusing: [stricter opinions rely on weaker hadith, such as bestiality: ouda 355] [lesbian offenses entail taazir punishments, no qiyas to zina since there is no penetration because women lack the male sexual organ. But then the taazir penalty is diverse and some scholars go for the hadd of 100 lashes and/or exile instead. Ouda 368]

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School of Classification Source Jurisprudence of Liwat of Law Maliki Majority Shafii & Hanbali Minority Shafii & Hanbali Minority Shafii & Hanbali Hadd Hadd Sunna Sunna

Penalty Active/Passive Married/Unmar ried Stoning to death, Stoning to death Stoning to death Stoning to death

Hadd

Hadd

Sunna and qiyas to zina Qiyas to zina

Stoning to death for active offender. 100 lashes and exile for passive offender. n/a

n/a

Married stoned to death. Unmarried 100 lashes and exile. No required punishment: Discretionary in severity and duration Married stoned to death. Unmarried 100 lashes and exile.

Majority Hanafi

Taazir

Judicial and executive discretion Qiyas to zina

No required punishment: Discretionary in severity and duration n/a

Minority Hanafi

Hadd

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B. Background Norms on Evidence and Privacy In terms of foreground norms, the black-letter doctrines criminalizing liwat under Islamic law unquestionably exhibit an intensely homophobic streak, often coupled with a propensity to inflict the cruelest punishment available on both active and passive offenders and to avoid mitigating the punishment through emphasis on the marital status of the offender. Obviously, this is not a tolerant legal regime by any stretch of the imagination. And yet, paradoxically, many writers on the topic have repeatedly described the legal regime as tolerant, or alternatively commented on the fluid state of sexual practices in early nineteenth century Egypt when sodomy was still governed under the Islamic norms of criminal law detailed above and the transplantation of French inspired criminal codes had not taken place yet. Indeed, the entry on the subject of Liwat in the Encyclopedia of Islam concludes the legal section by stating that homosexual relations have always been tolerated. In the same vein, one can find telling examples of the tolerance of Islamic society to deviant male sexuality throughout the middle ages. Medieval poetry and literature provide the most often used sources to make this point, with the prevalence of homoeroticism in Abbasid poetry for example, 74 or in the various books on sexuality which discuss openly the love of ghilman, such as Al-Jahizs comparisons on the different virtues of sex with women and young men. 75 Reference can also be made to famous figures from medieval Islam, whose open homosexuality did not stop them from attaining the highest political, social or legal positions in society. The same extends to political figures living at the very historical edge of the colonial encounter, such as Sheikh Hassan Al-Attar, whose homosexuality did not impede his appointment by the viceroy of Egypt to the highest post of Sunni Islamic learning in the land, namely the Sheikh of al-Azhar University. 76 Another example of such social tolerance on the popular level could be derived from a Cairo police report from 1853 dealing with a theft case and which shows little interest in the fact that the arrested men had also practiced liwat. The report bypasses the issue as irrelevant, not even worth verbal rebuke, let alone criminal prosecution. 77 Perhaps al-Jabarti, the prolific Egyptian historian living at the turn of the nineteenth century, provides the most historically rich portrait of homosexual relations as readily available without serious consequences. Dunne summarized some of Jabartis stories thus: Homosexual practices existed at all social levels. Thus the rural Shaykh Sulayman of Nahiyat al-Asal surrounded himself with one hundred and sixty handsome beardless youth and piled them with jewels and other baubles; Muhammad Ali traveled amng his palaces accompanied by

74 75

For a collection on the subject in English, See HOMOEROTICISM IN MEDIEVAL POETRY [??citation??]. AL-JAHIZ, KITAB MUFAKHARAT AL-JAWARI WAL-GHILMAN (1957). 76 Gran, Islamic Roots of Capitalism Egypt 1760-1804 (1979) at 127. 77 Ehud Toledano, Review of State and Society in Mid-Nineteenth-Century Egypt, 24(2) INTERNATIONAL JOURNAL OF MIDDLE EAST STUDIES (1992), pp. 365-69.

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concubines and boys and rowdy and carousing soldiers often engaged in homosexual practices. 78 In offering the above citations, my goal here is not to provide an exhaustive list of the different sources cited to demonstrate the tolerance of medieval Islam towards liwat. This is beyond the scope of this paper. However, even this cursory literature review seems has been used to argue that the professed homosexual identity among Arabs allowed homosexuals historically a degree of tolerance that was denied for centuries to homosexuals in the West, 79 a tolerance which extended till the moment of the colonial encounter. One might dismiss such argument as an over-romaticization of the precolonial moment which simply does not square with the variety of hadd and taazir punishments prescribed for liwat under Islamic law. Alternatively, one might try to account for the tolerance glimpsed in these sources through a variety of explanations. We explore the selective application of the above criminal law provisions based on a lawand-society reading that emphasizes the type of practical constraints that social organization imposes on the laws application and thus established the foundational distinction between law-in-books and law-in-action. Accordingly, one could emphasize the absence of public space for interaction with the opposite sex as a central feature of medieval societal arrangements, or the predominance of male institutions in which the homosocial aspect potentially spills into the homoerotic, such as male-only public baths and coffeehouses. Tolerance for liwat may thus become understandable as a sexual preference by default given the predominance of same-sex social structures and the lack of potential encounters with women. 80 To my mind, the above readings are equally at fault in adopting a rather formalist view of Islamic law, either by stressing the homophobic black-letter doctrines of Islamic criminal law, or by emphasizing the tolerant nature of the social regime while discounting the legal order to which it is connected. Instead, I will propose here an alternative reading that attempts to make sense of the simultaneous homophobic and tolerant aspects of deviant sexuality under medieval Islam. The argument I wish to make here is not a law-and-society one in the above sense. I am not claiming that the law was suspended from application because of societal constraints about it. Rather, my argument is that Islamic law itself contained legal doctrines that worked to severely limit the possibility of any practical application for the severe punishments prescribed in the criminal law doctrines. To my mind, the law and society reading outlined above exhibits a highly formalist tendency in its exclusive concentration on the foreground doctrines of Islamic criminal law on liwat at the expense of examining how these doctrines interact with other legal rules that form the background norms for the legal system. 81 More specifically, the
Dunne 109. ABD AL-RAHMAN AL-JABARTI, AJAIB AL-ATHAR FIL TARAJIM WAL AKHBAR (1966), vol 7, 4-5. 79 Abu-Khalil, 33. 80 For this type of analysis, see [??citation??]. 81 Another reason to reject the alternative law-and-society reading is its potentially conservative undertones. The reading seems like a crass application of the homosexuality-in-prison theory, which explains the predominance of sodomy in prison based only on the restricted absence of females from the prison space. Islamic society can thus be viewed as a large prison, where normal relations with women is unavailable, and men therefore resort to the abnormal same-sex pursuits to compensate for the missing intimacy in their
78

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application of Islamic criminal law takes place in the larger context of a dynamic relation with rules that govern questions of privacy and evidence and which often lead to the legal system canceling out the practical application of some of its norms by reference to legitimating mechanisms derived from its own internal logic and located among another set of norms in the very same system. In other words, while criminal law presents the foreground norms directly governing the subject of liwat, it is reasonable to suppose that their scope of application gets defined and constrained through other doctrines on evidence and privacy, doctrines that provide background norms totally unrelated to the criminalization of liwat yet effectively functioning to define the latters scope of application. The remaining pages of this section will examine in detail the general rules on evidence and privacy which act to constrain the application of Islamic criminal law on liwat.

1. Evidentiary barriers to conviction The rules governing evidence in Islamic criminal law are largely dependent on whether the offense is classified as hadd or taazir. If we follow the majority opinion across the Maliki, Shafii and Hanbali schools of law and classify liwat as hadd, then the prescribed punishments cannot be triggered without satisfying one of two methods of proof, namely the offenders confession or witness testimony. On the one hand, the suspected offender may confess to the crime. In this case, the confession is acceptable only if the suspect is of majority age, has full control of his mental faculties, and his words are free of duress. Moreover, if the suspected offender does not repeat the same confession four times before the judge, then the hadd penalty cannot be enforced and the judge is instead free to apply the tazir punishment he deems fit for the case. 82 These conditions apply regardless of whether the confessing offender was the active or passive partner in liwat and with no reference to his marital status. On the other hand, conviction of liwat may be based on witness testimony. In this case, the majority opinion in Maliki, Shafii and Hanbali schools of law rely on qiyas to extend the rules of evidence governing zina to liwat as well. Accordingly, four male witnesses of majority age and unblemished integrity of character must testify to having personally seen the act of ilaj or penetration in flagrante delicto and are able to confirm that a hair could not pass between the two suspected offenders. Circumstantial evidence and hearsay therefore do not suffice to trigger the hadd punishment. Some medieval jurists require the testimony to be delivered by the four witnesses in the same court session, while others allow each witness to testify independently of the others. The majority opinion across these three schools of Sunni law also requires the four witnesses to testify on the same instance of liwat, i.e. the four testimonies must relate to the same incident. Finally, if the quorum of four witnesses is not satisfied, some jurists have
lives. Aside from the historiographically problematic portrayal of Islamic society as a large prison, the reading also implies that homosexuality is an abnormality that could be done away with if sufficient contact opportunities with the opposite sex were made available. 82 See generally, HUSSEIN ALY AL-MUNTAZERY, KITAB AL-HUDOD, VOL I (no publication date), 149-153.

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argued that those witnesses who came forth with their testimony become liable for the hadd of slander or qazf, and should therefore receive the prescribed punishment of 80 lashes. 83 In addressing the policy rationale behind adopting such a high evidentiary threshold, Coulson argues the goal here is to insure that the punishment should not be applied where there is the slightest shadow of doubt as to the guilt of the accused. 84 Alternatively, Bosquet argues that the four witnesses rule is not in fact intended to bring offenders to justice, but, quite the contrary, to discourage and prevent the revelation or publication, through conviction in the courts, of any infringement of the code of sexual morality. Whatever the case may be, the high evidentiary barriers for conviction by witness testimony makes it reasonable to argue that the hadd for liwat remains practically unenforceable absent the quadruple confession of the suspected offender. Without confession or witness testimony the hadd no longer stands and the offense is radically reduced in punishment to the discretionary level of tazir. Alternatively, the Hanafi school of law refuses to analogize liwat to zina and accordingly classifies the offense as requiring taazir punishment. Accordingly, Hanafi jurists are satisfied with only two witness testimonies and do not require the stricter rule of witnesses demanded by the three other schools for enforcing liwat as hadd. The Hanafis explain this reduced barrier to conviction by commenting on the lesser danger liwat posses to society than zina. 85 The above evidentiary requirements complicate the regulation of liwat in the following sense. On the one hand, the majority opinion of Maliki, Shafii and Hanbali jurists views liwat as a hadd and accordingly requires the severe punishments of stoning to death or flogging and exile as its due penalty. Judicial and executive authorities have no discretionary power in mitigating the application of these punishments. However, because they classify liwat as hadd, they also require a much higher standard of conviction which practically suspends the enforcement of the penalty absent confession. By contrast, the Hanafi school offers the most lenient criminal treatment of liwat, arguing the act constitutes a taazir offense and therefore leaves its required punishment to the discretion of judicial and executive authorities. While on the face of it Hanafi jurists may therefore appear as the most liberal school in dealing with liwat, the taazir classification entails lower evidentiary requirements which accordingly may actually lead to the enforcement of the taazir penalty in a way that remains impossible with the three other schools of jurisprudence. In short, the rules on evidence make it difficult to argue with any clarity which of the four schools is stricter on the issue liwat.

2. Privacy barriers to conviction

83 84

See generally, AL-GEZIRY, KITAB AL-HUDOUD, 55-62, 102-03. Noel Coulson, Regulation of Sexual Behavior under Traditional Islamic Law, in GIORGIO LEVI DELLA VIDA, (ED), SOCIETY AND THE SEXES IN MEDIEVAL ISLAM (1979), at 64-65. 85 AL-GEZIRY, KITAB AL-HUDOUD, at 103.

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In his influential medieval treatise on The Rebirth of Religious Sciences, Al-Imam alGhazali recounts to us the following story. 86 On the suspicion that acts of wrongdoing are being committed in a private citizens home in Madina, the second Caliph Omar ibn al-Khattab stealthily climbs the wall of the suspected offenders home and surprises its occupant who indeed turns to be engaged in some undefined but decidedly illegal act. From prior examples in the treatise, one suspects the offender was either drinking alcohol, playing a musical instrument or engaged in some illicit sexual activity. In pursuing this act, the Caliph was enforcing the injunction repeated in various forms across the Koran and Sunna to command right and forbid wrong, and thereon proceeded to berate the hapless offender in his home. But the man retorted back with assurance: While he had indeed broken one law of God by his offense, the Caliph had by contrast breached three rules of the divine law: First, the Caliph had spied and pried despite the Koranic injunction against such acts as enshrined in Q49:12 which states: O you who believe! Avoid much suspicion; indeed some suspicions are sins. And spy not, neither backbite one another. Would any of you like to eat the flesh of his dead brother? You would hate it (so hate backbiting). And fear Allah. Verily, Allah is the One Who forgives and accepts repentance, Most Merciful.. 87 Second, the Caliph had entered the mans home by climbing its wall, in flagrant breach of Koranic verse Q2:189 which states: It is not Al-Birr (piety, righteousness) that you enter houses from the back but Al-Birr (is the quality of the one) who fears Allah. So enter houses through their proper doors, and fear Allah that you may be successful. 88 Finally, the Caliph had neither asked for permission in entering the home nor did he offer the requisite salutations. This was also in breach of the Koranic injunction in Q24:27 which states: Oh you who believe! Enter not houses other than your own, until you have asked permission and greeted those in them; that is better for you, in order that you may remember. 89

AL-IMAM AL-GHAZALI, IHYAA OLOUM AL-DIN, PART II (Beirut 1992) at 468-69. In exploring the medieval doctrine of Commanding Right and Forbidding Wrong, I will heavily rely on al-Ghazalis analysis of the doctrine for three reasons. First, his treatise on the subject provides us with a highly structured synthesis covering the diverging opinions across the four schools of Sunni law as well as Ghazalis own views on the subject. Second, al-Ghazali is the writer who is most cited in contemporary Arabic literature on the subject today. Third, his work is usually relied upon to support conservative views by contemporary scholars on the question of privacy. (witness abuzeid case where hisba was used to divorce him from his wife). Instead, I would like to reclaim the doctrine for an alternative liberal agenda and believe Ghazalis work can equally fulfill this goal. 87 Muhammad al-Hilali and Muhammed Khan, trans., A TRANSLATION OF THE MEANING OF THE NOBLE QURAN IN THE ENGLISH LANGUAGE, (Madina 1997), Surat al-Hujurat, at 701 [Hereafter MEANINGS OF QURAN]. The Arabic original reads: " ". 88 MEANINGS OF QURAN, Surat al-Baqarah, at 39. The Arabic original reads: "." 89 MEANINGS OF QURAN, Surat al-Nur, at 470. The Arabic original reads: ""

86

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In response to these three arguments, the Caliph Omar did not enforce the requisite hadd or taazir penalties on the offender he had caught red handed, and instead left the man to be, merely asking him to repent for his sins. 90 The above story provides us with some indications of a theory of privacy under medieval Islamic law. From the outset, the reader should note that the term privacy does not stand as a conceptual tool or a doctrinal framework under Islamic Law in the same way it is articulated under the liberal legal orders of contemporary Civil or Common Law systems. Rather, the operative doctrinal framework under Islamic law is the doctrine of Commanding Right and Forbidding Wrong, 91 and whatever rules on privacy that emerge only do so in the form of policy limitations on the judicial and executive enforcement of this doctrine. Following the same order of analysis used earlier in this section, I will proceed to explore the doctrine of Forbidding Wrong and its requisite privacy limitations by going through the four principle sources of Islamic law following by a brief discussion of juristic divergences on the issue as expressed across the legal opinion of the four schools of Sunni Law. Starting with the Koran, the injunction to Command Right and Forbid Wrong is repeated in different forms across eight verses of the Holy Book. However, none of these verses provide a clear framework for the doctrine nor do they delineate a specific route for its enforcement. 92 There is no indication as to what constitutes right and wrong, and whether the injunction is directed to the entire Muslim community with the duty required of women and slaves as well? The verses are also unclear as whether the duty can be entrusted to only a designed few who have achieved a high level of juristic learning or alternatively and whether the judicial and executive authorities can exercise a monopoly in enforcing the injunction. 93 Perhaps the most canonical verse in this respect is Q3:104, and the different translations available of the verse into English serves to underscore the different interpretations eventually adopted by the medieval jurists for the doctrine. Cook has the verse literally translated as follows: Let there be one community of you, calling to good, and commanding right and forbidding wrong; those are the prosperous. 94 Alternatively, in the King Fahd Translation, the same verse reads: Let there arise out of you a group of people inviting to all that is good (Islam) enjoining al-Maruf (i.e. Islamic Monotheism and al that Islam orders one to do_ and fordidding Al-Munkar (polytheism and disbelief and all that islam has forbidden). 95 This latter translation, with its
For alternative versions of the story, see MICHAEL COOK, COMMANDING RIGHT AND FORBIDDING WRONG IN ISLAMIC THOUGHT (2000) [hereafter, COOK, COMMANDING RIGHT], at 80. Cooks excellent treatise provides the most systematic collection and analysis I know of on the regulation of commanding rights under Islamic law in English. 91 In the following pages I will refer to this doctrine in short as Forbidding Wrong. 92 See, the Koran Q3:110; 3:114; 7:157; 9:71; 9:112; 22:41; 31:17. 93 For competing interpretations on the eight verses, see Cook 13-31 who concludes that the different medieval jurists reading of the scripture tends to be informed by an understanding of forbidding wrong which cannot be derived directly from the verses themselves at 31. 94 COOK, COMMANDING RIGHT, 13. 95 MEANINGS OF QURAN, Surat Al-Imran, at 88. The Arabic original reads:
90

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limitation to a group of people inviting to all that is good is itself a reflection of the view of the jurists and cannot be independently derived from the verse itself. By contrast, the Sunna on Forbidding Wrong proves to be more helpful. There is a plethora of hadith by the prophet Mohammed commenting on the nature of the duty, who is entrusted with it and its mode of enforcement. Yet the details offered in these hadiths catapult the doctrine in two competing directions which continue to inform it in the detailed analysis of the medieval jurists. Indeed, one can say there is a basic tension in the prophetic traditions between hadiths exhorting an activist approach to Forbidding Wrong and others that set different limitations on the doctrine. On the first level, the most canonical hadith in this respect has the prophet saying: Whoever sees wrong and is able to put it right with his hand, let him do so; if he cant, then with his tongue; if he cant, then with his heart, which is the bare minimum of faith. 96 There numerous other hadiths which confirm the same interventionist streak and threatens the entire community with all kinds of unpleasant repercussions if they fail to enforce this duty.97 Indeed there even an eschatological streak in several of these traditions, foretelling of a time in the future when the sate of Islam will be so weakened that Muslims will stop to command right and forbid wrong and the few remaining faithful should then prepare for the coming of the end of the world. 98 On the other hand, there is a competing strand in the prophetic tradition which points the reader in an opposite and more constrained direction: In its very extreme, it suspends the whole duty to command right and forbid wrong at times of extreme corruption. In response to a question regarding Q5:105 of the Koran which advises the believers to look into their own souls, the prophet enjoined the community to command right and forbid wrong until they find themselves confronted with the utter corruption of values and then they should turn to look to themselves and forget the populace at large. 99 While this tradition kicks in only in high eschatological times, a less extreme suspension of the duty operates, which keeps the injunction intact but sets limits on its practice. Three major limitations are derived from the Sunna and worth mentioning here. First, there is Sunna advising against futile acts of heroism and suspends the duty to forbid wrong if its enforcement subjects the actor to mortal danger. Second, with respect to who should practice the duty, the prophet is quoted as saying that one should not forbid wrong unless he is known for civility, knowledge, and probity. 100 Finally, there is a diversity of traditions advising on the respect for privacy. For example, one should seek to neither spy nor to willingly expose their wrongdoings. Indeed, the prophet is uniformly quoted as saying that one who keeps concealed something that would

"" Quoted in COOK, COMMANDING RIGHT, at 33. 97 It is not the place of this article to cite these hadith in detail. For further details, see Cook, Commanding Rights, pp. 35-39. 98 COOK, COMMANDING RIGHT, at 39-42. 99 COOK, COMMANDING RIGHT, at 40. 100 COOK, COMMANDING RIGHT, at 43.
96

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dishonor a Muslim will receive the same consideration from God. 101 In another canonical hadith the prophet is quoted to have said Whoever keeps hidden (satr) what would disgrace a believer, it is as though he had restored a buried baby girl to life from her tomb. 102 In the same vein, there is also prophetic tradition on the need to rebuke the offender but only in private if possible. Relying on the above sources from the Koran and Sunna, medieval jurists from the four schools of Sunni law have developed a larger theory of commanding right and forbidding. While there are significant disagreement regarding the possibility of political revolt against the ruler for failing to enforce the doctrine, and more minor disagreements on the capacity of women and slaves to observe the injunction, the jurists are nonetheless largely in agreement with respect to the privacy aspects of the doctrine. More specifically, the jurists have sought to balance the two competing policies expressed in Koran and Sunna, namely the injunction to forbid wrong on the one hand, and the injunction not to spy, expose a fellow Muslim or enter houses without permission or salutation. To this end, the jurists are in consensus on the following points: 1. The duty to forbid wrong is not triggered unless the offensive act is committed in public or constitutes a munkar zahir. Wrongs that are committed in private, in the sense of not knowing about them, are regarded as munkar batin and accordingly fall outside the scope of forbidding wrong. 2. If there is suspicion of an offensive act committed in private, the majority opinion among jurists allows intervention only if there is good reason to believe a wrong is being committed, otherwise a higher standard of actual knowledge is required. 3. Finally, even if the duty is triggered because the act was committed in public or the person entrusted with forbidding wrong has actual knowledge or good reason to believe an offense is indeed underway, the duty is nonetheless mitigated by the prophetic tradition on satr.

101 102

COOK, COMMANDING RIGHT, at 43-44. Id., 81

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III. THE COLONIAL ENCOUNTER: THE MANY LIVES OF CODIFICATION [No Text]

IV. THE POST-COLONIAL CONDITION: WHY ISLAMIC LAW MATTERS [No Text]

V. CONCLUSION: WHATEVER HAPPENED TO LIWAT? [No Text]