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the theory of limits 205the verse mentions an alternative punishment to confinement to thehouse: ‘or God ordain for them some (other) way’. It should beconsidered that Allah calls here for a much lighter form of punishment.Who are we to think that we can afford to ignore a hint fromGod for more lenience in such serious matters!II.Male homosexuality in public:If two men among you are guilty [of it], punish them both. If theyrepent and amend leave them alone; for God is oft-returning, mostmerciful. ( Al-Nis§" 4:16)In the case of homosexual intercourse between two males in public,punishment can be immediately inflicted without the need to call forwitnesses. And yet, we should not forget that we can forgive the sinnerbecause God has suggested this possibility in the very same verse.If, however, the path of forgiveness is blocked (because homosexualactivities continue publicly) we should not hesitate to inflict punishmentsthat cause pain. Strictly speaking, all kinds of pain, short ofdeath, are allowed because this constitutes the upper limit of punishmentfor male homosexual intercourse in public. 23 Homosexual23The harshness of MS’s verdict on repeated public homosexual activity reflectsthe severity by which homosexuality is treated in Islamic fiqh. In the M§likÊ, Sh§fi#Ê,and \anbalÊ schools homosexual intercourse is equated to illicit sexual intercourse( al-zin§) and is, therefore, punished by death through stoning (M§likÊ) or the sword(Sh§fi#Ê and \anbalÊ). According to the \anafÊ school, punishment is determined byta#zÊr or discretionary (corrective) chastisement because the treatment of the punishmentfor homosexuality lacks, unlike zin§, a clear naßß. The most frequently prescribedpunishment by \anafÊ jurists is flogging or imprisonment, but theyacknowledge the possibility of the death penalty if the ‘offence’ is repeated (seeal-JazÊrÊ, al-Fiqh #al§ ’l-madh§hib al-arba#a, vol. 5, 63; Peters, Crime and Punishment,61–62). MS demands punishments ‘short of death’ which means that he follows theposition of the \anafÊ school in the case of nonrepentance and the continuation ofhomosexual practices. As for female homosexuality, it is a great offence according toall four schools. There is however, a consensus among the fuqah§" that the rule ofÈadd is not applied to lesbianism, so that the punishment is given according to ta#zÊr,because full sexual intercourse (with penetration) does not take place between twowomen (see al-JazÊrÊ, al-Fiqh, vol. 5, 63). MS follows this logic of ‘lighter punishment’and proposes corrective ta#zÊr measures of chastising lesbian ‘offenders’. MS staysmore or less within the remits of classical fiqh but restricts punishments for homosexualityto acts of sexual intercourse in public. His more liberal interpretation allowshomosexual couples a loving relationship without feeling guilty as long as they do notact it out in public. In this respect, public homosexual intercourse is not better orworse than public heterosexual intercourse which is equally illicit. What matters isnot the sexual orientation of people but the undermining of the public order through