Two accounts from the third/ninth century highlight instances of ḥadd punishments involving burning an offender alive.Footnote 1 The first is recounted by the early Medinese historian al-Wāqidī (d. 207/823) concerning a well-known apostate al-Fujāʾa al-Salamī (d. 11/632), who was executed for a range of transgressions, including apostasy, betrayal, and the slaughter of Muslims, henceforth referred to as “the apostasy report”. The second is recounted by the literary scholar and moralistFootnote 2 Ibn Abī al-Dunyā (d. 281/894) concerning an unnamed man in an Arab village who was discovered “being penetrated like a woman” (yunkaḥu kamā tunkaḥu al-marʾa), henceforth referred to as “the sexual passivity report”. This study focuses on the evolution of the latter report and its variants, which attribute the order to burn an unnamed offender to Abū Bakr (d. 13/634) at the behest of ʿAlī Ibn Abī Ṭālib (d. 40/661). I suggest that Ibn Abī al-Dunyā may be credited with the dissemination of the sexual passivity report. I trace this report to an earlier report that pertained to a well-known apostate, al-Fujāʾa al-Salamī, who was burned for treachery and apostasy. I argue that the sexual passivity report likely evolved from the apostasy report, with a convergence between the two occurring over time. I consider potential reasons for the development of this report, noting that the phrase “he was penetrated like a woman” may have initially served as a rhetorical insult against the apostate al-Fujāʾa for his apostasy and treachery, but eventually became a crucial association – specifically, the crime for which an unnamed man was purportedly punished by burning to death, according to later legal sources. Moreover, some jurists as of the fourth/tenth century cited this report in a debate over the punishments for male–male anal intercourse (liwāṭ) to support or oppose the ḥadd punishment for this offence, rather than to advocate for burning as the specific form of punishment.
I. The formation of the sexual passivity report
The sexual passivity report is absent from early ḥadīth collections such as ʿAbd al-Razzāq al-Ṣanʿānī’s (d. 211/827) al-Muṣannaf, Ibn Abī Shayba’s (d. 235/850) al-Muṣannaf, and the Musnad of Aḥmad ibn Ḥanbal (d. 241/855), all of which not only included Prophetic reports but also Companion reports.Footnote 3 It is also not cited in early legal works that address the punishment for liwāṭ offenders, including Mālik’s Muwaṭṭaʾ (d. 179/795), ʿAbd Allāh b. ʿAbd al-Ḥakam’s (d. 214/829) al-Mukhtaṣar al-saghīr, Saḥnūn’s Mudawwana (d. 240/855 ce),Footnote 4 Kitāb al-Aṣl of al-Shaybānī (d. 189/805 ce), and Kitāb al-Umm of al-Shāfiʿī (d. 204/820 ce). The earliest traces of a report that has any semblance to the sexual passivity report in non-legal works appear in a work of Arabic prose literature (adab) – al-Jāḥiẓ (d. 255/868), Mufākharat al-jawārī wa-l-ghilmān. In this work, al-Jāḥiẓ cites several reports concerning the various punishments for liwāṭ imposed by the Companions. Among them are two accounts that attribute conflicting forms of punishment to Abū Bakr. According to the first report, Abū Bakr imposed the death penalty by collapsing a wall on the offender. According to the second, Khālid b. al-Walīd wrote to Abū Bakr “concerning a group (qawm) who committed male–male anal intercourse (lāṭū)”, prompting him to “order that they be burned”.Footnote 5 There are two noteworthy details in the latter report that conflict with those found in Ibn Abī al-Dunyā’s sexual passivity report. While al-Jāḥiẓ’s report mentions “a group” of people guilty of “liwāṭ”, referring to the sexual act involving both active and passive male partners, Ibn Abī al-Dunyā’s report specifies that it was a single “man” guilty of sexual passivity, described as “penetrated like a woman”. This raises the possibility that al-Jāḥiẓ was conveying an earlier variant of the sexual passivity report or a variant of a different report altogether – one that relates more closely to Muslims’ attribution of the orders to burn groups of apostates to Abū Bakr. This is plausible, given historical accounts depicting Abū Bakr as warning groups of apostates during the Wars of Apostasy and threatening them with death through extreme measures of burning if they did not cease their apostasy and return to Islam.Footnote 6 Since al-Jāḥiẓ generally did not cite chains of transmission for the reports he included in this treatise, and since this report cannot be corroborated by other early sources, determining its origins is nearly impossible.
II. Ibn Abī al-Dunyā’s sexual passivity report
Al-Jāḥiẓ’s account may have been the prelude to the fuller sexual passivity report that subsequently developed. One of the earliest documented accounts linking Abū Bakr to the order for the burning of a man as punishment for sexual passivity is recorded by Ibn Abī al-Dunyā in his Dhamm al-malāhī (The Censure of Instruments of Diversion).Footnote 7 In it, Abū Bakr purportedly consulted the Companions concerning the punishment for liwāṭ and in the end adopted ʿAlī’s suggested punishment of burning. Ibn Abī al-Dunyā narrates the following report, with the last three transmitters closest to Abū Bakr and Khālid b. al-Walīd being: ʿAbd al-ʿAzīz b. Abī Ḥāzim (d. 184/800) on the authority of Dāwūd b. Bakr [b. Abī al-Furāt] (d. c. 161–170/777–786) on the authority of Muḥammad b. al-Munkadir (d. 130/747) who reported that:
Khālid b. al-Walīd wrote to Abū Bakr al-Ṣiddīq [asking him] regarding a man in an Arab village discovered being penetrated like a woman (yunkaḥu kamā tunkaḥu al-marʾa).Footnote 8 Abū Bakr [reportedly] gathered an assembly of the Companions of the Prophet – peace be upon him – [to consult them regarding the penetrated man’s punishment], and among them was ʿAlī b. Abī Ṭālib [(d. 40/661)]. ʿAlī declared, “This is a transgression which no nation has committed except one, and God did to them what you already know. My considered opinion (arā) is that he should be burned to death with fire.” The Companions of the Prophet therefore agreed that he should be burned to death with fire. Consequently, Abū Bakr commanded he should be burned to death with fire. Ibn al-Zubayr [r. 683–692] and Hishām b. ʿAbd al-Malik [r. 723-743] also burned [the likes of] them to death.Footnote 9
Given that Ibn Abī al-Dunyā was Ḥanbalī, “It comes as no surprise to find that a large number of the traditions cited by him are also contained in the Musnad of Aḥmad b. Ḥanbal”.Footnote 10 However, this report is not one of them.Footnote 11
Other Muslims also writing in this genre of dhamm “censure”, intended to warn believers of instruments of diversion that corrupt moral character, subsequently cite Ibn Abī al-Dunyā’s sexual passivity report. Abū Bakr al-Kharāʾiṭī (d. 327/939) includes Ibn Abī al-Dunyā’s sexual passivity report in his Masāwiʾ al-akhlāq wa-madhmūmuhā (Evil and Blameworthy Traits of Character). Al-Kharāʾiṭī’s sexual passivity report is narrated by the same authorities as Ibn Abī al-Dunyā’s, but in addition to Muḥammad b. al-Munkadir, he adds two other traditionists, Ṣafwān b. Sulaym (d. 132/749) and Mūsā b. ʿUqba (d. 141/758). The content (matn) of al-Kharāʾiṭī’s report is practically the same as Ibn Abī al-Dunyā’s, with one notable gloss. After reporting that Khālid b. al-Walīd wrote to Abū Bakr asking about “a man in an Arab village discovered being penetrated like a woman (yunkaḥu kamā tunkaḥu al-marʾa)”, al-Kharāʾiṭī adds, “and the evidence against him was established”, Abū Bakr gathered an assembly of the Companions of the Prophet to consult them regarding the penetrated man’s punishment.Footnote 12 Hence, while the unnamed offender in Ibn Abī al-Dunyā’s sexual passivity report seems to have been punished on the basis of an accusation of sexual passivity, al-Kharāʾiṭī’s report includes an additional clause explaining that he was indeed found guilty of sexual passivity on the basis of evidence (presumably an appropriate number of eyewitness testimonies). This gloss reflects the legal requirement of evidence to implement ḥadd punishments. Subsequently, the Baghdādī al-Ājurrī (d. 360/970) also includes Ibn Abī al-Dunyā’s sexual passivity report, citing his chain of transmitters and essentially the same content in Dhamm al-liwāṭ, his treatise condemning liwāṭ, with a short section condemning siḥāq, female–female sexual practices.Footnote 13
Given that Ibn Abī al-Dunyā provides only a partial isnād that ends with Muḥammad b. al-Munkadir – who purportedly transmitted this report over a century after the deaths of Abū Bakr and Khālid b. al-Walīd – it makes an isnād-cum-matn analysis impossible. Nonetheless, a close examination of Ibn Abī al-Dunyā’s incomplete isnād, the few scattered sexual passivity reports that replicate his isnād and report in other works in the dhamm genre, and Muslim traditionists’ critiques of this report, yield some insights. A brief isnād analysis indicates that there seems to be only one line, rather than different paths of transmission, for Ibn Abī al-Dunyā’s report. While it is difficult to determine with certainty who is responsible for the dissemination of the sexual passivity report, it is plausible that Ibn Abī al-Dunyā himself might be credited with this role. It seems that Ibn Abī al-Dunyā acted out of pious intentions and apparently based his report on earlier traditions. Hence, he could be seen as an “author”, who compiled and reworked earlier texts according to his authorial intentions. Significantly, several Muslim traditionists cite Ibn Abī al-Dunyā’s sexual passivity report along with its chain of transmitters only to criticize its reliability. For example, the prominent traditionist al-Bayhaqī (d. 458/1066) argues that Ibn Abī al-Dunyā’s report is “mursal”, literally meaning “sent”, which refers to the fact that one or more transmitters of the ḥadīth are missing, resulting in a lack of continuity in the chain of transmission.Footnote 14 Al-Khaṭīb al-Baghdādī (d. 463/1071), a leading ḥadīth scholar and historian, explains that mursal refers “to a report whose isnād is interrupted, meaning that among its narrators is one [or more] who did not hear it from the one whose name comes before his”.Footnote 15 In this case, it is clear that several narrators are missing between Ibn al-Munkadir, who lived in the eighth century, and Abū Bakr or Khālid b. al-Walīd, who lived in the century before him, making it impossible for him to have directly heard the report from either of them. Like al-Bayhaqī, the Ẓāhirī jurist Ibn Ḥazm (d. 456/1064), writing around the same time period, contends that the three chains of transmission (isnād) he cites of this report in his legal treatise are all “interrupted” (munqaṭiʿa), meaning, not connected “because not a single one of them [the tradents] lived [early enough] to have seen Abū Bakr”.Footnote 16 More specifically, the term munqaṭiʿ is used to refer to ḥadīths that have two or more narrators missing successively.Footnote 17 Again, the closest tradents in the chains of transmission of this report to Abū Bakr are: Muḥammad b. al-Munkadir (d. 130/747), Ṣafwān b. Sulaym (d. 132/749), and Mūsā b. ʿUqba (d. 141/758), all of whom passed away in the second/eighth century, more than a century after Abū Bakr died in 13/634. Hence, several narrators are missing between any one of them and Abū Bakr. Later traditionists, such as Ibn Ḥajar al-ʿAsqalānī (d. 852/1449), additionally argued that this report is “very weak” (ḍaʿīf jiddan) and, therefore, unreliable.Footnote 18
If Ibn Abī al-Dunyā is responsible for the dissemination of the sexual passivity report, as suggested, what might have motivated him to circulate it? To address this question, we must briefly examine Ibn Abī al-Dunyā’s context and life. Ibn Abī al-Dunyā was a prolific writer of Arabic prose literature (adab), reportedly authoring between one and three hundred works.Footnote 19 Although “he was a traditionist, he was not of the sort whose writings could be used by the fuqahāʾ in their work”.Footnote 20 Instead, he focused on personal piety and asceticism more broadly. For example, in addition to several reports detailing the punishments for offenders of liwāṭ, he includes warnings attributed to the Companions and their Successors against gazing at beautiful prepubescent boys (ghilmān) and associating with beardless boys (murdān).Footnote 21 Unlike Muslim jurists, he went so far as to declare that “If a man fondles a prepubescent boy (ghilmān) between two of his toes out of lust (yurīdu al-shawa), then this is considered liwāṭ (la-kāna liwāṭan)”.Footnote 22 While he may have intended this as a rhetorical statement, it nonetheless reflects his condemnation of pederastic practices of his time. He particularly favoured writing on “edifying and hortatory themes, a genre generally referred to as riqāq or raqāʾiq, within which in turn he accords special precedence to themes of piety and zuhd”. Footnote 23 Much of his work focuses on broader and less rigid concepts, such as fear of God, humility, penitence, and faith in His mercy in the Hereafter.Footnote 24 Thus, his outlook has been characterized as “ethical traditionalism”, aimed at warning against moral decay and providing guidance for the general public.Footnote 25
His treatise Dhamm al-malāhī, which includes the sexual passivity report, should be understood in the context of third/ninth-century Baghdad, where he was born and lived – a period when the elite were known for indulging in hedonistic behaviours such as gluttony, pederasty, and excessive drinking.Footnote 26 Notably, caliphs like al-Amīn (r. 808–13) and al-Mutawakkil (r. 847–61) were infamous for “hosting wine-and-dance fueled parties”.Footnote 27 As Everett Rowson has shown, al-Amīn’s desire for the court eunuchs prompted his mother to dress the court slave girls as boys in an effort to shift his attention to the females of the court, a trend, known as ghulāmiyyāt or “boyish girls”, which persisted in Baghdad for at least a generation.Footnote 28 While this period was marked by libertine tendencies, including pederasty, it also witnessed a rise in religious “orthodoxy”, with “traditionalism” becoming dominant in the ʿAbbāsid court.Footnote 29 Ibn Abī al-Dunyā tutored several ʿAbbāsid princes, including “those who were later to become caliphs as al-Muʿtaḍid [r. 892–902] and [his son] al-Muktafī [r. 902–908]”.Footnote 30 His instruction may have contributed to al-Muʿtaḍid’s relative restraint, as he reportedly “only drank on Sundays and Tuesdays”.Footnote 31 In light of this context, it is not surprising that Ibn Abī al-Dunyā’s treatise denounces a range of “instruments of diversion”, including music, chess, backgammon, gambling, pigeon-flying, the presence of mukhannathūn among women, and male–male and female–female sexual practices.Footnote 32 Since his main interests lay in piety, morality, and asceticism, his inclusion of these issues in a single treatise is not coincidental. He selected the instruments of diversion of his time, even if some had not been widely condemned yet. His presentation of these topics along with the sexual passivity report detailing the severe punishment of burning for liwāṭ offenders reflects his efforts to address the social ills of his society, which he believed diverted people from spiritual devotion to God and led them to further transgressions.
a. Juristic motivation for invoking or rejecting the sexual passivity report in a legal debate
On the basis of Ibn Abī al-Dunyā’s sexual passivity report alone, it is difficult to ascertain where he may have encountered it or a variant of it. Additionally, the report does not clearly resemble other reports from which it may have evolved. Nevertheless, given its legal implications, legal texts provide a valuable starting point for investigation. For this reason, I will now turn to the legal corpus for further insights into the formation of Ibn Abī al-Dunyā’s sexual passivity report. By the fourth/tenth century, some jurists cited Ibn Abī al-Dunyā’s report and his isnād to support their argument for the imposition of the ḥadd penalty over their opponents’ taʿzīr penalty, or vice versa. The uses and rejections of the sexual passivity report are best understood in the context of the broader legal debate over liwāṭ punishments. During the first four centuries of Islam, there were intense legal debates regarding the punishment for men convicted of male–male anal intercourse (liwāṭ), partly due to the lack of prophetic legal precedent on the matter.Footnote 33 This legal debate occupied and divided Muslim jurists. The various positions in this debate regarding the specific penalty imposed on the man convicted of liwāṭ can be summarized as follows:
1. The ḥadd of an unconditional death penalty, regardless of whether the offender met the conditions of chastity (iḥṣān) – namely, a duly consummated marriage, freedom, and Islam.Footnote 34 Some jurists specified that this capital punishment should take the specific form of stoning, while others argued it should take other forms of execution.
2. The ḥadd of a conditional death penalty, meaning that the offenders must meet the conditions for zinā in order to be punished with the ḥadd punishment.Footnote 35
3. Or a taʿzīr punishment, left to the judge’s discretion, which during the early period usually involved a number of lashes – ranging from 10 to 100 – and incarceration.Footnote 36
The first position can be traced regionally to Medina and the Medinese, the second position can be traced to Kufa and Basra in Iraq and was often attributed to many Shāfiʿīs, Ḥanbalīs, and some Ḥanafīs, and the third position was attributed to the Ẓāhirīs and some Ḥanafīs.
While many reports portray the Companions as condemning male–male anal sex (liwāṭ) and expressing strong disapproval of it,Footnote 37 many legal reports attributed to them offer conflicting accounts of how they each adjudicated liwāṭ cases. I have argued elsewhere that such conflicting opinions attributed to the Prophet’s Companions in the āthār and akhbār traditions more accurately reflect the legal debates occurring during the formation of these traditions rather than the actual opinions of the Companion.Footnote 38 In this study, I focus on the evolution of the sexual passivity Companion report.Footnote 39 While this report suggests that Abū Bakr, ʿAlī, and other Companions reached an agreement (ijmāʿ) on the punishment of burning the passive male to death, other reports complicate this notion of clear “agreement” by highlighting that each of these Companions was associated with applying various forms of punishment for liwāṭ offences.Footnote 40
Hence, conflicting legal punishments were later attributed to Abū Bakr, ʿAlī, and other notable Companions to support the competing punishments for liwāṭ in the broader legal debate. The sexual passivity report’s emergence in the third/ninth century and its subsequent citations in legal texts from the fourth/tenth century reflect historical, social, and legal developments, rather than evidence of an earlier punishment of burning to death liwāṭ offenders. The lack of earlier documentation and the singular line of transmission for this report suggest that it was likely a later development rather than a direct account from the time of Abū Bakr.
One of the earliest jurists to cite Ibn Abī al-Dunyā’s sexual passivity report is the Ḥanafī jurist al-Jaṣṣāṣ (d. 370/981). The Ḥanafīs were divided in the debate over liwāṭ punishments, with some jurists advocating the ḥadd of a conditional death penalty, while others argued for a taʿzīr punishment. Remaining true to his personal position of discretionary punishment, al-Jaṣṣāṣ cites the sexual passivity report only to refute its use as evidence in support of the ḥadd punishment. Writing almost one century prior to al-Bayhaqī, al-Jaṣṣāṣ contends that the sexual passivity report is “mursal because Muḥammad b. al-Munkadir did not live [early enough] to witness them [Abū Bakr and Khālid b. al-Walīd]”. Hence, it is not appropriate for later generations to cite this report as proof (ḥujja) for their legal position.Footnote 41 Moreover, besides the fact that this report is unreliable, al-Jaṣṣāṣ contends that “not a single jurist has argued for burning to death with fire”, as an actual punishment for liwāṭ.Footnote 42 Finally, and more importantly, al-Jaṣṣāṣ contends, “It is possible that the man whom Khālid b. al-Walīd found [penetrated like a woman] was actually an enemy (ḥarbiyyan) or among the people of apostasy (ridda). They burned him and punished him with the excessive means of burning, not on account of that act [liwāṭ], but because he deserved execution on account of his disbelief (kufr)”.Footnote 43 In other words, al-Jaṣṣāṣ suggests that the offences of the man who was found “penetrated like a woman” and subsequently burned in the sexual passivity report may have been treachery and apostasy, rather than sexual misconduct. Al-Jaṣṣāṣ’s intervention is significant because he not only critiques this report as unreliable but also suggests that the offender was punished specifically for apostasy and treachery, thereby providing hints about the identity of the unnamed man who was burned by Khālid b. al-Walīd.
Ibn Ḥazm, who also advocated for a discretionary penalty for liwāṭ offenders rather than a ḥadd penalty, cites the sexual passivity report solely to refute its veracity based on its disconnected chain of transmitters (isnād), thereby rejecting its use as evidence in support of a ḥadd penalty. More significantly, Ibn Ḥazm explicitly identifies the unnamed offender in the sexual passivity report by name. In one report, he cites al-Kharāʾiṭī’s chain of transmitters, ending with Muḥammad b. al-Munkadir, Ṣafwān b. Sulaym, and Mūsā b. ʿUqba, and explains that Abū Isḥāq [al-Zajjāj (d. 311/923)] said that the man “found penetrated like a woman” “is named al-Fujāʾa”.Footnote 44 The complete conflation of the sexual passivity report and the apostasy report becomes much more crystallized in the work of the Mālikī jurist Ibn ʿAbd al-Barr (d. 463/1071), which will be examined below. Similarly, the Mālikī jurist Ibn al-ʿArabī (d. 543/1148) includes an account wherein a man was “discovered in an Arab village being penetrated like a woman (yunkaḥu kamā tunkaḥu al-marʾa) and his name was al-Fujāʾa…”.Footnote 45 Like Ibn Ḥazm and Ibn ʿAbd al-Barr, Ibn al-ʿArabī identifies the offender burned for his sexual passivity by name, referring to him as al-Fujāʾa. In order to understand this conflation, we first need to examine the earliest historical accounts of the apostasy report.
III. Historical accounts of al-Fujāʾa and the apostasy report
Taking al-Jaṣṣāṣ’s suggestion that the offender’s crimes in the sexual passivity report are treachery and apostasy, along with Ibn Ḥazm’s and Ibn al-ʿArabī’s identification of the offender by name as al-Fujāʾa, necessitates further investigation into this individual. Early historical chronicles quickly reveal that al-Fujāʾa was distinctly known for his crimes of treachery and apostasy.Footnote 46 During the Wars of Apostasy (ḥurūb al-ridda), Abū Bakr reportedly dispatched 11 commanders and sent them to various Arab tribes to fight them. Among them were Khālid b. al-Walīd, who was commanded to fight Ṭulayḥa b. Khuwaylid, who claimed to be a prophet among the Banū Asad, and Ṭurayfa b. Ḥājiz, who was commanded to fight the Banū Sulaym (al-Fujāʾa’s tribe) and those with them from the Banū Hawāzin. Abū Bakr entrusted each of the commanders with the same letter, encouraging them first to invite these tribes to Islam before fighting them. They were instructed to fight those who resisted. The adult males should be killed by being “burned with fire”,Footnote 47 while the women and their offspring should be captured.Footnote 48 Abū Bakr is also depicted on his deathbed as regretting ordering the burning of al-Fujāʾa. Ibn ʿAbd Rabbih (d. 328/940) recounts that when Abū Bakr approached his death, he reportedly wrote a letter placing ʿUmar b. al-Khaṭṭāb in charge as his successor and outlining some of his regrets. He sent this with ʿUthmān b. ʿAffān and an Anṣārī man so that it might be read out loud to the people. In it, Abū Bakr outlines three regrets concerning things he did, including the burning of al-Fujāʾa: “I wish I had not burned al-Fujāʾa al-Salamī. I should either have killed him instantly or left him alone in sound condition”.Footnote 49 Such early accounts do not depict Abū Bakr as threatening to kill by burning men who were “penetrated like a woman”. Footnote 50
One of the earliest mentions, even if it is brief, of al-Fujāʾa’s punishment by burning is by Ibn al-Kalbī (d. 204/819), a historian who spent much of his life in Baghdad collecting the genealogies and history of ancient Arabs. He identifies al-Fujāʾa as “Baḥīra b. Iyās b. ʿAbdallāh b. ʿAbd YālīlFootnote 51 b. Salama b. ʿUmayra. He is the one whom Abū Bakr burned [to death] for apostasy”.Footnote 52 Here, Ibn al-Kalbī clearly states that al-Fujāʾa was burned specifically for his act of apostasy. Likewise, the early Medinese historian, al-Wāqidī (d. 207/823)Footnote 53 recounts al-Fujāʾa’s story in full detail, without any isnāds, in his Kitāb al-Ridda as follows:
A man from the Banī Sulaym tribe, known as al-Fujāʾa b. ʿAbd Yālīl, approached Abū Bakr, may God be pleased with him, and greeted him and said, “O Successor of the Messenger of God, I am a Muslim man who has been following the religion of Islam ever since [I was a child]. I have not changed or exchanged it [for another]. I wish to fight the people of apostasy. I would like for you to aid me [by supplying me] with horses and weapons, so that I might distribute them among my people and my paternal cousins from the Banū Sulaym and join Khālid b. al-Walīd, so that I can fight with him Ṭulayḥa b. Khuwaylid and his Companions.
He said: So, Abū Bakr, may God be please with him, armed him with ten horses and many weapons, [including] swords, spears, bows and arrows, and he sent ten Muslims to accompany him. He said: Al-Fujāʾa left Medina as if he were heading to Khālid b. al-Walīd, but he left the road to Khālid and went to the territory of the Banī Sulaym. He sent to some of them, calling them, and they responded. He directed them to those ten with whom he had been sent, and he killed every last one of them. Then he distributed the horses and weapons that Abū Bakr had given him to those who had followed him, the foolish among his people. Then he went on and began killing everyone, sparing neither his own people nor others…
He said: Al-Fujāʾa continued doing what he was doing, attracting those who were sexually depraved (ahl al-daʿāra) and morally corrupt to join him. This reached Abū Bakr – may God be please with him – so he went to those who were with him from the Banū Sulaym and others from Qays ʿAylān and informed them of what al-Fujāʾa had done. The Banū Sulaym in particular were extremely distressed and said, “O Successor of the Messenger of God, our conscience has troubled us concerning this. We have surely imitated the actions of God’s enemy [al-Fujāʾa], a disgrace that will never be washed away from us…”.
Abū Bakr then wrote to Khālid, informing him of what al-Fujāʾa had done, regarding the weapons he had taken and the Muslims he had killed. He ordered him to send a group to capture him, wherever he may be … [When al-Fujāʾa was captured, Muʿādh b. Wāthila said to him], “O enemy of God, you took Abū Bakr’s horses and weapons and used them to kill Muslims, and you became an apostate, [leaving] the religion of Islam. Did you think that Abū Bakr would ignore your actions?” He said: “Al-Fujāʾa fell silent and did not say a word…”.
So, Muʿādh [b. Wāthila] sent to Khālid b. al-Walīd, informing him of what had happened and reporting that al-Fujāʾa had been captured. Khālid then directed him to Abū Bakr – may God be pleased with him – so that he might give his opinion concerning [what to do with] him. Al-Fujāʾa was taken to Medina. When he stood in front of Abū Bakr, he [Abū Bakr] did not speak to him a single word, and he did not question him regarding what he had done. [Instead,] he called a man from among the Banū Sulaym, named Ṭurayfa [ibn Ḥājiz], and said to him, “O Ṭurayfa, take this enemy of God with you, outside Medina and burn him [to death] with fire”.
He said: Al-Fujāʾa was then taken outside [of Medina], firewood was collected for him, his hands and feet were tied, and he was placed in the centre of the wood. Then, the wood was set on fire, and al-Fujāʾa burned until he became charcoal.Footnote 54
In many of the verses sung about al-Fujāʾa in this early work where his actions are recounted in detail, he is blamed for his having “betrayed” (ghadara) and “committed treason against” (khāna) Abū Bakr. Significantly, nowhere in al-Wāqidī’s work is al-Fujāʾa described as “being penetrated like a woman”.Footnote 55 It should be noted that there is one brief mention of al-Fujāʾa attracting men who were “sexually depraved (ahl al-daʿāra) and morally corrupt to join him [in his raiding and killing]”.Footnote 56 But even this note does not describe al-Fujāʾa as engaging in any debauchery himself, let alone specify the nature of such acts (i.e. what such acts entailed and with whom). The report only seems to describe the types of immoral people he attracted to join him in his betrayal of Abū Bakr and the ruthless killing of Muslims and others.
Other early Muslim historians offer accounts similar to that of al-Wāqidī, though many are much more succinct. For example, the Baghdadi historian al-Balādhūrī (d. 279/892) writes:
And among them [Banū Sulaym b. Manṣūr] was al-Fujāʾa [d. 11/632]: he is Baḥīr ibn Iyās b. ʿAbdallāh b. ʿAbd Yālīl b. Salama b. ʿUmayra. They said, al-Fujāʾa approached Abū Bakr, may God be pleased with him, and said: “Supply me and reinforce me so that I may fight the apostates”. So, [Abū Bakr] supplied him with weapons and [al-Fujāʾa] went out to capture people, killing Muslims and apostates … Then Abū Bakr wrote to Ṭurayf b. Ḥājira,Footnote 57 ordering him to fight [al-Fujāʾa], so he fought him, and Ibn Ḥājira captured him and sent him to Abū Bakr. Abū Bakr ordered that he be burned near the prayer area outside the city (muṣallā). It is also said that Abū Bakr wrote to Maʿan b. Ḥājira to fight al-Fujāʾa and that he sent his brother Ṭurayf[a] to him.Footnote 58
Al-Ṭabarī (d. 310/923) offers two longer accounts that resemble al-Balādhurī’s account, in which Ṭurayfa b. Ḥājira reportedly captured al-Fujāʾa and brought him to Abū Bakr who then ordered that a fire be built, according to one account, in the prayer area (muṣallā) in Medina and, according to another account, in al-Baqīʿ [Cemetery], where al-Fujāʾa was burned to death.Footnote 59 In both accounts, al-Fujāʾa is blamed for his acts of betrayal and treachery, robbing and killing Muslims. Like al-Wāqidī, al-Ṭabarī does not include any descriptions of al-Fujāʾa as “being penetrated like a woman”. Hence, these early historical chronicles do not seem to draw any connection between al-Fujāʾa the apostate and al-Fujāʾa who was discovered “penetrated like a woman”. This direct conflation does not seem to occur until the fifth/eleventh century in Ibn ʿAbd al-Barr’s legal work.
IV. Conflating the two accounts into the sexual passivity–apostasy report
If early historical chronicles that discuss al-Fujāʾa do not indicate that he was additionally known for occupying the passive role in liwāṭ, then how did a report about AbūBakr ordering the burning of apostates develop into a report about Abū Bakr ordering the burning of an unnamed man for occupying the passive sex role in liwāṭ, at the behest of ʿAlī? A close examination of a report in a fifth/eleventh-century Mālikī text, Fatḥal-barr fī al-tartīb al-fiqhī, reveals a clear conflation between the two accounts. Unlike al-Jaṣṣāṣ and Ibn Ḥazm, who advocated for discretionary punishment in this debate, Ibn ʿAbd al-Barr, who was considered “the best traditionist of his time” and was equally distinguished in Mālikī law, followed the standard position of the Mālikī school.Footnote 60 The Medinese position was uncompromising and was exceptional in that it did not change over time on this matter. Mālikī jurists held that liwāṭ offenders should be punished with the ḥadd punishment of an unconditional death penalty, regardless of their iḥṣān status. Notably, Ibn ʿAbd al-Barr cites a variant report in the section pertaining to the punishments for apostasy, underscoring the way in which Ibn Abī al-Dunyā’s sexual passivity report was conflated with a report on apostasy. It is worth citing this report here in full:
When al-Fujāʾa became an apostate – and his name is Iyās b. ʿAbdallāh b. ʿAbd Yālīl – Abū Bakr al-Ṣiddīq sent al-Zubayr b. al-ʿAwwām [to capture] him with thirty horsemen … [after seizing him] he brought him to Abū Bakr. Then Abū Bakr said, take him out to al-Baqīʿ [Cemetery] – meaning to the prayer area (muṣallā) – and burn him to death with fire. So, they took him out to the prayer area and burned him to death. Some biographers (ahl al-sīra) claimed that it was reported that he was penetrated like a woman. Yaʿqūb b. Muḥammad al-Zuhrī mentioned all of this in Kitāb al-Ridda.Footnote 61 He said, ʿAbd al-ʿAzīz b. Abī Ḥāzim informed me, on the authority of Dāwūd b. Bakr, on the authority of Muḥammad b. al-Munkadir, that Khālid wrote to Abū Bakr noting that he found in some Arab villages a man who was being penetrated like a woman. So, Abū Bakr consulted [his Companions] on the matter and ʿAlī was the sternest in opinion among them. He said, “This is a transgression which no nation has committed except one, and God did to them what you already know. My considered opinion (arā) is that he should be burned to death with fire”. The Companions of the Prophet therefore agreed that he should be burned to death with fire. They [the Companions] agreed on this and Abū Bakr wrote to Khālid [informing him of the punishment]. So, he [Khālid] burned him to death … [according to others] when Abū Bakr sought their [the Companions’] opinion, they suggested stoning him, but ʿAlī said, “My considered opinion (arā) is that he should be burned to death, since Arabs disdain the tremendous shame that would be attached to them from an exemplary penalty as opposed to [execution through the framework of] fixed penalties [ḥudūd] (inna al-ʿarab taʾnafu min ār al-muthla wa-lā taʾnafu min al-ḥudūd)”. So, [Khālid] burned him to death with fire.Footnote 62
Here, Ibn ʿAbd al-Barr combines an apostasy report with the sexual passivity report, including them both in a single account. He identifies the apostate who was penetrated like a woman as al-Fujāʾa. Interestingly, Ibn ʿAbd al-Barr includes an addition at the very end of this report which has the Companions suggesting punishing al-Fujāʾa with stoning, the normative punishment for liwāṭ in the Mālikī school. This additional detail is not found in earlier variants of the sexual passivity report; rather, it specifically conforms to the Mālikī punishment for liwāṭ.Footnote 63 This addition sheds light on the evolution of this report as it was narrated by various jurists over time, which reflects the ideological and legal disagreements amongst the jurists rather than the actual historical incident itself.
a. Earliest references to al-Wāqidī
While al-Jaṣṣāṣ only hinted at the identity of the unnamed man in the sexual passivity report, specifying the crime for which he was burned to death as treachery and apostasy, later jurists such as Ibn Ḥazm identify the offender in the sexual passivity report by name as al-Fujāʾa. Ibn ʿAbd al-Barr not only names him but also combines the crime of sexual passivity and apostasy for the two offenders – an unnamed man and al-Fujāʾa – into a single report. Clearly, these jurists were familiar with al-Fujāʾa and his infamous reputation as an apostate. Even though jurists continued to cite the sexual passivity report from the fourth/tenth century onwards to either support or oppose the ḥadd penalty for liwāṭ offenders, it is not until the eighth/fourteenth and ninth/fifteenth centuries that some scholars cite their source of information for this report. The Ḥanafī jurist and traditionist al-Zaylaʿī (d. 762/1360) is among the earliest jurists I have encountered who cited al-Wāqidī (d. 207/823) as his source for a conflated report on sexual passivity and apostasy. Al-Zaylaʿī first cites al-Bayhaqī as having narrated the sexual passivity report in his Shuʿab al-īmān on the authority of Ibn Abī al-Dunyā, citing his chain of transmitters, ending with Muḥammad b. al-Munkadir, and finally cites the content of the report.Footnote 64 Al-Zaylaʿī then explains that “al-Wāqidī narrated it [the sexual passivity report] in his Kitāb al-Ridda at the end of the apostasy of the Banū Sulaym [al-Fujāʾa’s tribe]”, subsequently citing a variant of the apostasy report on the authority of Yaḥyā b. ʿAbd Allāh b. Abī Farwa on the authority of ʿAbd Allāh b. Abī Bakr b. Ḥazm (d. 65/135), who said that:
Khālid wrote to Abū Bakr informing him that a man was brought to him, against whom he had evidence that established he was penetrated in his anus as a woman is penetrated [in her vagina] (yūṭaʾu fī duburihi kamā tūṭaʾu al-marʾa). Abū Bakr gathered the Companions of the Prophet – may peace and blessings be upon him – and consulted them concerning him [the offender]. ʿUmar and ʿAlī suggested that he should burn him to death with fire, since the Arabs disdain the notoriety that they could derive from an exemplary penalty. Yet others suggested that he should lapidate him. Subsequently, Abū Bakr wrote to Khālid b. al-Walīd commanding him to burn him to death with fire. So Khālid burned him to death with fire.Footnote 65
There are several developments in this later variant that are noteworthy: First, the phrase used to describe the offender hints at a shift from an initial insult, a man “penetrated like a woman”, which seems to have been used rhetorically to humiliate al-Fujāʾa for his acts of betrayal and treachery against Abū Bakr, but morphed into a more specific and literal crime for later jurists, a man “penetrated in his anus as a woman is penetrated [in her vagina]”. I will explore this possibility in more detail below. Second, al-Zaylaʿī’s report uses a phrase that is reminiscent of al-Kharāʾiṭī’s gloss of Ibn Abī al-Dunyā’s report, which indicates that Khālid b. al-Walīd established that the offender had committed the crime of sexual passivity through evidence, rather than punishing him on the basis of an accusation alone. By the eighth/fourteenth century, the evidence for those who wished to punish liwāṭ offenders with the ḥadd punishment had become well established and necessary, and this variant reflects this development. Third, this report highlights the Companions’ disagreement over the punishment they advised Abū Bakr to adopt for the passive male, with ʿUmar and ʿAlī suggesting a ḥadd of an unconditional death penalty through burning and other Companions recommending a ḥadd of a conditional death penalty instead, presumably based on the zinā model of punishment (stoning for those who have attained iḥṣān and lashing for those who have not). The conflicting forms of punishment suggested in this report reflect the legal debate over liwāṭ punishments, rather than the purported agreement (ijmāʿ) in Ibn Abī al-Dunyā’s report, where the Companions are said to have agreed with ʿAlī to burn the offender. Finally, the chain of transmitters which al-Zaylaʿī cites from al-Wāqidī – Yaḥyā b. ʿAbd Allāh b. Abī Farwa on the authority of ʿAbd Allāh b. Abī Bakr b. Ḥazm – is not one that al-Wāqidī himself uses in his apostasy report or in the section on al-Fujāʾa.
Al-Zaylaʿī was not the only jurist to identify al-Bayhaqī as transmitting the sexual passivity report on the authority of Ibn Abī al-Dunyā while also citing al-Wāqidī as his source for this report. Other jurists after him followed suit. More specifically, several jurists who, like al-Zaylaʿī, were using or commenting on al-Marghīnānī’s Hidāya, including the Ḥanafī Badr al-Dīn al-ʿAynī (d. 855/1451), the Shāfiʿī Ibn Ḥajar al-ʿAsqalānī, and the Ḥanafī Ibn al-Humām (d. 861/1457), all cite al-Wāqidī in relation to the sexual passivity report. While commenting on al-Hidāya, al-ʿAynī explains that because of the disagreement among the Companions regarding punishing by fire, Abū Ḥanīfa maintained that liwāṭ was not equivalent to zinā and, therefore, did not warrant a ḥadd punishment. He cites the same two tradents cited by al-Zaylaʿī, and likewise claims that al-Wāqidī narrated (rawā) the sexual passivity report at the end of the section on the apostasy of the Banū Sulaym, in his Kitāb al-Ridda.Footnote 66 Similarly, al-ʿAsqalānī, who wrote an abridgement (mukhtaṣar) of al-Zaylaʿī’s work, cites al-Zaylaʿī’s report verbatim, only adding that he believed this report to be “very weak” (ḍaʿīf jiddan).Footnote 67 Finally, Ibn al-Humām, who studied with both al-ʿAynī and al-ʿAsqalānī, also authored a commentary on al-Hidāya, similar to al-ʿAynī’s work. Hence, it is not surprising to see Ibn al-Humām referring to al-Bayhaqī as narrating the sexual passivity report via Ibn Abī al-Dunya, as well as citing al-Wāqidī as having narrated it in his Kitāb al-Ridda.Footnote 68
It is peculiar that it took until the eighth/fourteenth century for al-Wāqidī’s name and work to appear as the source of the sexual passivity report, purportedly in the section on the Banū Sulaym and al-Fujāʾa’s acts of treachery and apostasy. This raises the possibility that al-Zaylaʿī had access to a manuscript of Kitāb al-Ridda that is no longer extant and that no one else had seen. Alternatively, it is plausible that al-Zaylaʿī made this connection himself based on the conflated apostasy–sexual passivity report of his predecessors. Once early indications linked the passive male’s crime to apostasy and identified the offender as al-Fujāʾa, it would not have been far-fetched to suggest that al-Wāqidī himself made this connection, alleging that he narrated the report on sexual passivity at the end of his section on the apostasy of the Banū Sulaym in his Kitāb al-Ridda. Therefore, after the association with al-Fujāʾa was established during the fifth/eleventh century, it seems likely that al-Wāqidī’s apostasy report became conflated with Ibn Abī al-Dunyā’s sexual passivity report, resulting in citations of al-Wāqidī’s work in the eighth/fourteenth century as the source of this conflated narrative.
b. False accusation (qadhf) and the shame associated with the passive male role
While it is possible that the apostasy report is entirely separate from the sexual passivity report, it seems unlikely for two reasons. First, there is significant overlap between the details in the two accounts. Both reports recount an incident in which a man was burned to death under Abū Bakr’s orders, albeit for different crimes. Both reports include Khālid b. al-Walīd as the military commander who was responsible for bringing al-Fujāʾa or the unnamed man to justice for his crimes. There are a few differences between the two accounts. The apostasy report identifies the man as al-Fujāʾa, while the sexual passivity report does not name the offender. While al-Wāqidī’s apostasy report has Abū Bakr writing to Khālid to inform him about what al-Fujāʾa had done, ordering him to send a group to capture him, Ibn Abī al-Dunyā’s sexual passivity report has Khālid writing to AbūBakr inquiring about how to punish the unnamed offender.
Notably, the main difference between the two accounts is the crime for which the male offender was burned. While al-Wāqidī’s apostasy report specifies that the punishment of burning was for his treacherous crimes of apostasy, betrayal, and slaughter of Muslims, Ibn Abī al-Dunyā’s sexual passivity report underscores the man’s crime of occupying the passive sex role. The apostasy report is found in several major historical chronicles. The earliest accounts of the sexual passivity report, on the other hand, are found in works in dhamm genres, dedicated to condemning instruments of diversion and bad moral character, which often include Companion reports or Prophetic reports without full chains of transmission or a rigorous means of verifying their authenticity.
Second and more importantly, several jurists from the fifth/eleventh century and later specifically identify al-Fujāʾa as the unnamed man in the sexual passivity report, thereby conflating the two reports. Moreover, some jurists from the eighth/fourteenth century onwards even cite al-Wāqidī as the source of the sexual passivity report. While it is difficult to know with certainty, it is plausible that the apostasy report evolved into the sexual passivity report with Muslims initially using the descriptive phrase, “he was penetrated like a woman” rhetorically to humiliate and insult al-Fujāʾa for his acts of betrayal and treachery against Abū Bakr. This assumption is reasonable considering that the passive role in males was socially linked to subjugation and humiliation. Moreover, descriptive phrases sometimes served as insults during the Prophet Muḥammad’s Arabia. For example, the insult “yā muṣaffira istihī” (lit., O you who [bleaches or] dyes his anus yellow) was coined for males who occupied the passive role in liwāṭ.Footnote 69
The fact that the conflated report specifically depicts al-Fujāʾa as a passive male is significant. It sheds light on Muslim scholars’ socio-legal perceptions of male sexual passivity as shameful and demeaning. Several early and classical works depict the passive male role as especially loathsome for adult males.Footnote 70 Take for example an early work of lives of the prophets (qiṣaṣ al-anbiyāʾ) by Abū Ḥudhayfa Ibn Bishr (d. 206/821), which attributes to ʿAlī the saying, “The punishment for the one who commits the acts of the people of Lot during his youth is that when he reaches old age, he will be afflicted with calling men to [penetrate] him [out of desire for the passive role]”.Footnote 71 While this report does not specify whether the man who commits the “act of the people of Lot” penetrates other males by force or voluntarily, it distinguishes the active penetrative role from the passive role in male–male anal intercourse, clearly denigrating the male who assumes the passive role. In fact, this report emphasizes how the passive male role is more egregious, carrying a punishment of humiliation rooted in socio-cultural norms that condemn adult males desiring the passive sex role. Even medical treatises portrayed the condition of an adult male desiring to be penetrated by another adult male (ʾubna) as a pathology, with some physicians contending that it was treatable.Footnote 72
Tellingly, for many jurists, falsely accusing a man of committing liwāṭ constituted a qadhf offence, which is related to slander. In cases where a person falsely accuses another of illicit sexual intercourse and fails to prove the veracity of his charge, the accuser is “liable to the punishment of eighty lashes of the whip [in accordance with Q 24: 4–5]. The accuser stands as one who has lied and is permanently discredited.”Footnote 73 While Mālik, al-Shāfiʿī, and Ibn Ḥanbal include this charge under slander, Abū Ḥanīfa maintained that it is not a prescribed offence, but should nonetheless be punished severely.Footnote 74 The fact that some jurists believed that falsely accusing a man of liwāṭ constituted a prescribed offence reveals not only that they took seriously such a false accusation, but also, more importantly, that they believed that it had the power to tarnish a man’s reputation. Hence, socially, men who engaged in liwāṭ must have been viewed as morally corrupt (fāsidūn) and depraved (fāsiqūn),Footnote 75 just as those who engaged in illicit sex (zinā) were viewed as morally suspect.Footnote 76 Hence, in many legal texts, qadhf offences fall under ḥudūd punishments and are often related both to the accusation of zinā (illicit male–female sexual intercourse) and to the accusation of liwāṭ. This is because the purpose of Islamic law is “to protect the honour and good name of upright individuals regardless of the veracity of the charge, so long as the offence is degrading and humiliating”.Footnote 77
More specifically, while both the active and the passive roles in liwāṭ were prohibited, some early Muslims appear to have believed that the false accusation of liwāṭ applied more strictly to the passive male partner than to the active partner. For instance, when Ibn Ḥanbal’s fellow traditionist Isḥāq Ibn Rāhawayh (d. 238/853) was questioned about the appropriate punishment for the one who falsely accuses (yaqdhif) another man, the questioner was specifically inquiring about the case of a man accused of “seeking a[nother] man to penetrate you like a woman”, (innakā taʾtī fulānan fa-yaṭaʾuka kamā tūṭaʾu al-marʾa).Footnote 78 Already, during the third/ninth century, an adult male who occupied the passive sexual role was viewed socially with disdain and that this phrase, likening a passive male to a woman, was used to insult and slander these men.
Interestingly, rather than directly addressing the punishment for qadhf, Ibn Rāhawayh responds by outlining the varying positions on punishing liwāṭ offenders. He includes the following report which contains some semblance to Ibn Abī al-Dunyā’s sexual passivity report: “It is narrated that Abū Bakr [punished] by burning [the offender to death] with fire. He reasoned, saying, “This is something with which God has punished a nation [Lot’s people?], but with which He has never punished a nation prior to them. Hence, my considered opinion (arā) is that it [the punishment] should be applied and they should be burned to death with fire.”Footnote 79 However, Ibn Rāhawayh adds that he personally prefers that “his [the offender’s] body should be burned with fire after he has been killed, just as ʿAlī Ibn Abī Ṭālib [purportedly] did to a group of apostates. He killed them and [subsequently] burned their bodies with fire.”Footnote 80 Ibn Rāhawayh contends that this form of punishment is better because ʿAlī did not burn the offender alive, while his soul was still inside him, for if he had done this, he would have been punishing the offender with the Lord’s punishment. Here, the slander is aimed at accusing a man of sexual passivity “yaṭaʾuka kamā tūṭaʾu al-marʾa”, which is slightly different from Ibn Abī al-Dūnyā’s formulation, “yunkaḥu kamā tunkaḥu al-marʾa”. More significantly, this report is cited in response to a formal charge of qadhf against the offender and therefore indicates that the earliest legal attestation to this report was one pertaining to a slanderous accusation and an insult, rather than an actual case of liwāṭ.
In later legal discourses, the active penetrative role in sex continued to be associated with adult men and the passive receptive role with women. For instance, the Ḥanbalī Ibn Taymiyya (d. 728/1328) explains that men were created to desire the active penetrative role because “he is the one who usually desires and seeks” this penetrative role, while the passive receptive male was “not created with the desire for this [i.e. to be penetrated]”.Footnote 81 The use of the passive male role specifically as an insult persists in modern Arabic dialects, such as the Moroccan zāmil, as well as in Persian (kūnī, from kūn or “ass”) and Turkish. In a fourteenth-century Classical Arabic lexicon, Ibn Manẓūr (d. 711/1311) identifies the active male penetrator as nāʾik and the passive penetrated male as manīk.Footnote 82 In modern Egyptian dialect, manīk has transformed into manyūk and mitnāk, and manyak in Lebanese, Syrian, and other Arabic dialects. In Egyptian dialect, the more common mitnāk is equivalent to another common insult khawal, meaning the passive male in male–male intercourse.Footnote 83 These vulgar terms for males who occupy the passive penetrated role in sex are used as insults to debase them.Footnote 84
c. Issues with the sexual passivity report
While tracing the formation of the sexual passivity report, several issues should be considered. First, most of the earliest extant ḥadīth collections include reports about burning as the form of punishment used to punish apostates,Footnote 85 but they do not recount Abū Bakr’s burning of a man for “being penetrated like a woman”. The burning reports are often associated with Abū Bakr, ʿAlī b. Abī Ṭālib, and Khalid b. al-Walīd. For example, early Muslim traditionists such as al-Ṣanʿānī (d. 211/827), Ibn Abī Shayba (d. 235/849), and Aḥmad b. Ḥanbal (d. 241/855) include an entire section or several reports on the punishment of burning. Some of these early works such as al-Ṣanʿānī’s Muṣannaf attribute the burning of male apostates to Khālid b. al-Walīd.Footnote 86 Al-Ṣanʿānī and Ibn Ḥanbal also include a report that ʿAlī b. Abī Ṭālib found a group of apostates with their books and subsequently commanded that a pyre be constructed and that they be burned on it, along with their books. When Ibn ʿAbbās heard of this, he reportedly said: “If that were me, I would not have burnt them to death, because of the Prophet’s prohibition. Instead, I would have killed them in accordance with the Prophet’s saying, ‘Whoever changes their religion, then kill them’. The Prophet also said, ‘Do not punish [anyone] with God Almighty’s punishment [i.e. fire].’”Footnote 87 This report is repeated in Ibn Abī Shayba’s Muṣannaf, along with three other reports about ʿAlī b. Abī Ṭālib specifically burning apostates to death.Footnote 88
Even later scholars such as Ibn ʿAbd al-Barr and Ibn Ḥubaysh (d. 584/1188) include accounts of Khālid b. al-Walīd burning apostates to death. Ibn ʿAbd al-Barr describes an incident pertaining to the apostasy of the tribes of AsadFootnote 89 and Ghaṭafān during the battle of Buzākha (11/632). He explains that many captives were captured that day and that Khālid ordered that a pyre be built. Then a great fire was lit under it, and the captives were cast into the fire. On the authority of Qatāda (d. 117/735), he adds that Abū Bakr fought apostates and “killed [them], captured captives, and burned [them]”.Footnote 90 Similarly, Ibn Ḥubaysh explains that during Abū Bakr’s Wars of Apostasy (ḥurūb al-ridda), Ṭulayḥa b. Khuwaylid al-Asadī led an army against Khālid b. al-Walīd, but fled the battlefield during the battle of Buzākha. At the behest of Abū Bakr, Khālid ordered for a pyre to be built, and he ordered that those captured in this battle be thrown into it alive.Footnote 91 Hence, several ḥadīth collections and historical chronicles, such as al-Ṭabarī’s history, include reports that associate burning with the punishment for apostasy, not the passive sexual role in liwāṭ.Footnote 92
Second, in later works, ʿAlī b. Abī Ṭālib reportedly punished liwāṭ offenders with conflicting forms of punishments, including the ḥadd of an unconditional death penalty through stoning,Footnote 93 casting the offender from a high place (“minaret”),Footnote 94 or the ḥadd of a conditional death penalty using the zinā model for punishment.Footnote 95 Thus, burning was not a form of punishment that he was reported to have applied to liwāṭ offenders who were found guilty of this crime. In other words, in early ḥadīth collections, ʿAlī is reported to have punished only apostates, and not liwāṭ offenders, with burning.Footnote 96 Given that the association of ʿAlī with burning apostates had already been well established in early ḥadīth collections, it is not surprising to see the apostasy report name ʿAlī as the Companion who urged Abū Bakr to burn the man who was “penetrated like a woman” in the later sexual passivity report. Moreover, since ʿAlī served as an authoritative figure, whose precedent was cited and used as proof when adjudicating legal cases for which scriptural proofs were absent, it is not surprising that he is portrayed as advocating for various punishments for liwāṭ offenders. The competing reports ascribing conflicting punishments for liwāṭ to ʿAlī and other Companions reflect the competing positions in this legal debate more than any given Companion’s position on this issue.Footnote 97
Third, the Prophet reportedly prohibited Muslims from punishing others with burning,Footnote 98 saying, “It is not permissible for a human to punish [others] with God’s punishment”,Footnote 99 and “Do not burn him with fire, for no one punishes with fire except the Lord of the Fire”.Footnote 100 Because of this ḥadīth and the prohibition of punishment with fire, many jurists struggled to reconcile such ḥadīths with the sexual passivity report, and they were reluctant to use burning as a form of punishment for liwāṭ offenders. Moreover, this discomfort with burning as a punishment was connected to jurists’ doubts about the reliability of the report attributing the burning of apostates to ʿAlī. They considered it mursal, lacking a continuous chain of authority.Footnote 101 Hence, while there are a few instances of early Companions punishing apostates with burning, many later jurists did not specify that liwāṭ offenders should be punished with fire. Instead, proponents of the ḥadd punishment for liwāṭ offenders often chose an unconditional death penalty through stoning or a conditional death penalty using the zinā model for punishment. Ultimately, even though some jurists cited the sexual passivity report, they did so only to support their ḥadd penalty over their opponents’ taʿzīr penalty, rather than to advocate for burning as an actual punishment for liwāṭ offenders.Footnote 102
Finally, the sexual passivity report is peculiar, in that Khālid b. al-Walīd purportedly wrote to Abū Bakr inquiring only about the punishment for the man who was “penetrated like a woman”, rather than the punishment for both the passive and the active partners found engaged in the act of liwāṭ. Given that Muslim jurists prohibited both roles in liwāṭ, it is curious that Khālid would have only inquired about the punishment for only one of the two partners rather than both. The fact that this report portrays Khālid as inquiring only about the passive male is itself telling. Moreover, the way Muslim scholars specifically depict the passive male role as shameful sheds light on their social perceptions of sexual passivity. Simply put, they connected male sexual passivity with subjugation and humiliation.
Conclusion
The apostasy report, which seems to have circulated initially to condemn al-Fujāʾa’s reprehensible acts of apostasy, betrayal, and slaughter of Muslims, appears to have evolved into an account that described him as a passive male “penetrated like a woman”. This is a descriptive phrase that, in the beginning, was likely intended as an insult, since the technical legal term used elsewhere to refer to the passive penetrated male partner in liwāṭ is mafʿūl bihī, literally meaning “the one done to”. It is therefore not a coincidence that al-Fujāʾa became specifically associated with the passive role in these traditions, since this would have been an apt way to humiliate and defame him. Furthermore, it is also not a coincidence that ʿAlī b. Abī Ṭālib was cited as the Companion who suggested that the unnamed man found “penetrated like a woman” should be burned to death, since reports found in earlier ḥadīth collections had already established that ʿAlī advocated burning apostates with fire.
The earliest documentation of punishment by burning to death pertains to apostasy and is found in some of the earliest ḥadīth collections from the early third/ninth century, including those of al-Ṣanʿānī, Ibn Abī Shayba, and Aḥmad b. Ḥanbal. However, instances of punishment by burning related to sexual passivity appear in non-ḥadīth works, with the earliest example coming from Ibn Abī al-Dunyā in the late third/ninth century. While the apostasy account found in al-Wāqidī’s historical chronicle provides a detailed narrative of al-Fujāʾa and his acts of treachery and apostasy, Ibn Abī al-Dunyā’s report focuses on an unnamed man who was burned for being discovered “penetrated like a woman”. In juridical texts from the mid-fourth/tenth century, such as that of the Ḥanafī jurist al-Jaṣṣāṣ, there are hints suggesting that the unnamed man in the sexual passivity report may have been burned for his treachery and apostasy, rather than for any sexual transgression. This idea is reinforced and elaborated upon by subsequent jurists of the same century and the following one, including Ibn Ḥazm, Ibn ʿAbd al-Barr, and Ibn al-ʿArabī (d. 543/1148), all of whom identify the unnamed sexual offender as al-Fujāʾa. In fact, Ibn ʿAbd al-Barr combines the accounts of apostasy and sexual passivity into a single report. Meanwhile, traditionists such as al-Bayhaqī narrate the sexual passivity report on the authority of Ibn Abī al-Dunyā, asserting that it is weak and unreliable. It is not until the eighth/fourteenth century that some jurists begin to cite al-Wāqidī as their source for the sexual passivity report, linking it to the account of al-Fujāʾa and the apostasy incident. Some Ḥanafī jurists subsequently follow suit, likewise citing al-Wāqidī as their source for the sexual passivity report.
It is likely that, while Muslims circulated the incident of al-Fujāʾa, the conflation of his treacherous acts with the derogatory reference to him as a man “penetrated like a woman” were rhetorical, meant to humiliate him in the eyes of the public. However, this also resulted in the confusion that al-Jaṣṣāṣ attempts to resolve in his work. Hence, while passivity may have initially been used rhetorically to insult al-Fujāʾa for his treachery, in later sources it evolved into a crucial association with the crime for which an unnamed man was purportedly punished with burning to death. This transformed tradition – of an unnamed man being penetrated as a woman and consequently punished with burning – has endured and is commonly cited by jurists as Abū Bakr’s precedent to support the ḥadd of an unconditional death penalty, rather than to advocate for burning as the specific punishment for offenders. Meanwhile, al-Fujāʾa’s acts of treachery, apostasy, and slaughter of Muslims were relegated to some other incident or were forgotten.
Acknowledgements
I would like to thank Devin Stewart for reading drafts of this paper, Ahmad Atif Ahmad for discussing al-Wāqidī’s text with me, and the anonymous peer reviewers for BSOAS.
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