Likewise, with regard to sodomy, most of the early authorities held that the active participant must be put to death unconditionally, even if he was not married. It has been said that this was the consensus of the Companions. It is the position of the scholars of Medina, including Mālik and others; the position of Ahmad according to the sounder of the two reports transmitted from him; and one of al-Shāfiī’s two positions. According to this position (1), the passive participant must also be put to death unconditionally if he is an adult. The other position is that his prescribed punishment is the same as that of one guilty of unlawful sexual intercourse (2). This is the position of Abū Yūsuf and Muhammad, and one of the two positions attributed to each of al-Shāfiī and Ahmad.

Among those who held that the active participant is treated like one guilty of unlawful sexual intercourse, some said that the passive participant must be put to death unconditionally; others said that he must not be put to death; and still others held that the same distinction should be made for him as for the active participant. The position that no prescribed punishment applies is unique to Abū Hanīfah.

As for establishing paternity when a woman in the East is married to a man in the West, this (3) is likewise one of the opinions (4) peculiar to Abū Hanīfah. His underlying principle in this matter is that, in his view, lineage is intended to determine property rights. He therefore apportions (5) that which it is intended to secure. Thus, if two women claim a child (6), he ascribes the child to both of them in the sense that they share his estate, not in the sense that he was created from both of them.

Likewise, if a man divorces a woman before having had the opportunity to engage in intercourse with her, Abū Hanīfah attributes the child to him in the sense that the two inherit from one another, not in the sense that the child was created from his semen.