(The Conversation) — After Brunei introduced death by stoning for homosexuals under its Islamic law, or Shariah, the condemnation from human rights organizations and others was swift. Recently, the country backed down under mounting international pressure, saying it would not carry out executions under the new law. The sultan of Brunei, Hassanal Bolkiah, said,
“As evident for more than two decades, we have practiced a de facto moratorium on the execution of death penalty for cases under the common law.”
And this, he added would also be applied to cases under the Shariah penal code.
Nonetheless, homosexuals in Brunei are still subject to penalties such as whipping and amputation.
Is Brunei’s law an accurate reflection of Shariah?
As a scholar of law and religion, I would argue that Shariah is not one thing: It is a complex tradition with multiple interpretations – one that accommodates the celebration of same-sex attraction alongside rulings condemning homosexual intercourse.
Starting in the early medieval period, Shariah developed as a sprawling corpus of texts and sources of authority that were often quite independent of the state.
Over the centuries, jurists of Islamic law have reached different decisions about what the tradition mandates in a particular case. Within Sunni Islam, four different schools have agreed to disagree about everything from criminal law to ritual observance. Shia Muslims have their own school of Islamic law.
Take, for instance, Muslim jurists’ approach to anal intercourse between two men. The Quran offers only a general condemnation, with no specific legal consequences. There are some sources in the Hadith – the vast corpus of sayings and actions attributed to the Prophet Muhammad and collected centuries after his death – that are more specific, including condemning those convicted of anal intercourse to death.
Some schools of Islamic law – such as the Shafii school, which is predominant in Brunei – classify sodomy as a type of fornication, which requires the death penalty.
But others, such as the Hanafi school, which was the official school of the Ottoman Empire, prescribe far lighter penalties for this act. The Hanafi school is still one of the most widespread in the Islamic world, including in Turkey, the Balkans, South Asia and Central Asia.
And even in those schools of Islamic law that prescribe the death penalty for anal intercourse, jurists have made the standard of proof so high as to be nearly impossible to meet.
To condemn someone for sodomy requires four male, Muslim witnesses to have had such an intimate view of the act that they could see the genitals of the offenders. All schools of law require this type of evidence to condemn someone for fornication. Needless to say, such proof was exceedingly hard to come by.
Celebrating same-sex attraction
In the 18th century, Abdallah al-Shabrawi, the rector of al-Azhar in Cairo – then, as now, one of the Islamic world’s most prestigious centers of religious learning – was known both as a scholar and a poet. Al-Shabrawi dedicated a love poem to his male student, and wrote many others celebrating young men.
As scholars of Ottoman history and literature Walter Andrews and Mehmet Kalpaklı have shown, Ottoman sexuality was in many ways like that of ancient Greece and Rome. Far from stigmatizing men who sexually desired other men, young boys were often considered more perfect objects of desire and love than women.
Celebrations of same-sex love did not flout Islamic law. Rather, love for another man was considered widely acceptable even by jurists, as long as one avoided the sin of sodomy.
Islamism and Shariah
The interpretation of Shariah that originally guided the recent laws in Brunei is not a straightforward revival of an ancient tradition.
On the contrary, this interpretation is related to a particularly modern approach to Islamic law, one that is typical of Islamism. Islamism is an approach to Islam and the Shariah that arose in the 20th century across the Muslim world. Among its best-known example is the Muslim Brotherhood, which originated in Egypt and argued, for instance, that Shariah was indispensable to a vibrant Muslim community.
Today, many Islamist political parties point to a revival of the Shariah as a political solution to the problems plaguing Muslim-majority societies, including corruption and inequality.
However, there are many different viewpoints even among those linked with Islamism. For example, the Egyptian Islamist group al-Gama'ah al-Islamiyah renounces violence. On the other end of the spectrum is the Islamic State, which has taken up perhaps the most extreme version of a violent interpretation of Islamism.
In spite of these differences, many Islamists share the belief that Shariah is a way to harken back to an authentic Islam free of the corruption that is perceived to come from the West.
In fact, Shariah was not usually the primary source of criminal law in the pre-modern period.
Rather, Shariah courts focused more on regulating issues such as contracts, debts, marriage, divorce, mortgages and other everyday matters of civil law. This was in part because the Shariah required such high standards of proof for crimes as to make conviction nearly impossible.
My own research on law in pre-colonial Morocco shows that everyone – Muslims and Jews alike – used Shariah courts, which were mostly concerned with making sure that debtors paid their debts.
The way in which Shariah is codified and enforced by the state in a place like Brunei bears little resemblance to the way it functioned when al-Shabrawi was rector of al-Azhar.
To many Americans, Shariah has become synonymous with harsh punishments and intolerance. This is a misunderstanding of Islamic law, both as it functioned historically and as it informs the daily lives of millions of Muslims today.
(Jessica Marglin is an associate professor of religion at the University of Southern California – Dornsife College of Letters, Arts and Sciences. The views expressed in this commentary do not necessarily represent those of Religion News Service.)