The Future of Shari'a

It is important to put the following discussion in perspective in at least two ways. First, the conflict between religious law and freedom of religion is not peculiar to Islam alone, as it can be found in relation to other religions and ideologies. For example, traditional understandings of Jewish and Christian texts imposed the death penalty and other drastic consequences for apostasy and related offences (The Bible, Deuteronomy 13:6-9, and Leviticus 24:16; Saeed and Saeed 2004, 35). Indeed, it can be argued that the enforcement of religious conformity by such measures is simply the equivalent of modern notions of treason, which remains a capital crime under most legal systems today. The prohibition of apostasy and related matters under Shari`a, therefore, was neither unique among religious traditions, nor a phenomenon limited to religion, as similar penal and other measures continue to be applied to the so-called secular ideologies. Non-conformity with Marxist ideology, for example, was probably punished more harshly in the former Soviet Union for much of the twentieth century than apostasy and related crimes were ever punished under Shari`a.

Another important point to emphasize is that the relevant Shari`a principles have rarely been strictly and systematically applied in the past, and even less so today. Nevertheless, the existence of these principles constitutes a fundamental conflict with the premise of universality of human rights and a source of serious violations of the freedom of religion and belief in practice. It is therefore necessary for me as a Muslim to confront this issue in order to uphold the moral integrity of my religious beliefs, in addition to challenging the practical violation of this human right, however unlikely or infrequent that may be today.

The Arabic term riddah, commonly translated as apostasy, literally means to “turn back,” and murtad is the person who turns back (al-Samar`i 1968; Rahman 1972). Under the traditional understandings of Shari`a, riddah is reverting from the religion of Islam to kufr (unbelief), whether intentionally or by necessary implication (Saeed and Saeed 2004, 36, 42). In other words, once a person becomes a Muslim by his or her free choice, there is no means by which he or she can change religions. According to Shari`a scholars, the ways in which riddah can occur include: denial of the existence or attributes of God; denial of a particular messenger of God or that a messenger is truly a messenger of God; denial of a principle that is established as a matter of religion, such as the obligation to pray five times a day or fast during the month of Ramadan; declaring prohibited what is manifestly permitted (halal), or declaring permitted what is manifestly prohibited (haram). Apostasy is traditionally held to apply to any Muslim who is deemed to have reverted from Islam by an intentional or blasphemous act or utterance, even when said mockingly, or out of stubbornness (Saeed and Saeed 2004, 36–37).

The view that apostasy is a crime or a legal wrong for which an apostate should suffer any punishment or other legal consequences is inconsistent with the dominant theme in the Qur’an, such as in verses 2:217, 4:90, 5:54, 59, 16:108, and 47:25, which condemn apostasy but do not specify any legal consequences for it in this life (Saeed and Saeed 2004, 57). In fact, the Qur’an clearly contemplates situations where an apostate continues to live among the Muslim community. For example, verse 4:137 of the Qur’an can be translated as follows: “Those who believed, then disbelieved, then believed, and then disbelieved [once more] and became more so, God will not forgive them or guide them to the righteous pathway.” This verse clearly confirms that the Qur’an envisions the apostate continuing to live among Muslims, even to engage in repeated apostasy and still face the consequences in the next life. Shari`a scholars relied on some Sunna reports in imposing the death penalty on an apostate, in addition to implementing other negative legal consequences, like barring inheritance by or from a murtadd (Saeed and Saeed 2004, 413–14). There are two problematic aspects of the notion of apostasy in traditional Islamic jurisprudence itself, the vagueness and fluidity of the concept, and the ambiguity of the basis for its legal consequences as a capital crime.

Scholars of the four main Sunni schools classified apostasy into three categories: beliefs, actions, and utterances, with further sub-divisions for each of them. But each of these categories can be controversial. For instance, the first category is supposed to include: doubts about the existence or eternity of God, or about the message of the Prophet Muhammad or any other prophet, doubts about the Qur’an, the Day of Judgment, the existence of paradise and hell, or about any other matter of belief on which there is consensus (ijma) among Muslims, such as the attributes of God. It would, therefore, logically follow that where there is no consensus on an issue, apostasy is not possible on that count. Yet, as a matter of fact, there is no consensus among Muslims on many of the issues included in the list of various scholars and schools. For example, since there is significant disagreement among Muslim scholars on the attributes of God, a person can be condemned as an apostate for accepting or rejecting an attribute of God according to the views of one scholar that is accepted or denied by another scholar (Saeed and Saeed 2004, 37, 189). Moreover, Muslim scholars did not generally discriminate among the various associated concepts and tended to use the broader category of apostasy as subsuming all of them (Saeed and Saeed 2004,). This makes this term dangerously broad and vague, and confuses the legal basis of an alleged crime and its punishment among different types of conduct.

The Qur’an does not expressly state the consequences of questioning the meaning of the confession of faith itself. For instance, what does it mean to affirm the Muslim confession of faith that: “There is no God but God”? What do believers know, or what should they know, about God? What are the imperative consequences of belief in the unity of God for the personal practice or behavior of Muslims, whether at the private personal level or in relation to public socio-economic and political institutions and processes? Who has the authority to adjudicate the inevitable disagreements about these and other matters after the death of Prophet, and how? Instead of providing any answers to such questions, the Qur’an leaves Muslims free to struggle with all these issues for themselves. It is true that they have the additional practical guidance of the Sunna, or the life-model of the Prophet, but that also has its uncertainties and ambiguities. It is, therefore, not surprising to find major differences among Muslims on the role that actions or deeds (amal) play within the definition of belief (iman). Whereas some Muslim scholars were willing to accept an apparent confession of the faith as sufficient for a person to be considered a Muslim, others insisted that the professed belief must be expressed in specific actions or deeds. For those who require action according to belief, the question becomes what to do about the people who claim to be Muslims but fail to act accordingly. But then, who decides whether or not a person has acted according to the requirements of the faith, and by which criteria? These debates and their manifestations range from the views and actions of the Kharijites during the civil wars of the seventh century to the status of the Ahmadiyya in Pakistan since the 1950s, to the present cults of murder and terrorism (for example, Abou El Fadl 2001).

Such profound uncertainties are further complicated by ambiguities and disagreements about other concepts, like blasphemy. Blasphemy is the use of foul language primarily about the Prophet Muhammad, known as insulting the Prophet (sabb al-rasul), God, or any of the angels or prophets; it is held by traditional Islamic scholars to be punishable by death (Saeed and Saeed 2004, 37-38). At a later stage, this offense was extended to cover using foul language against the Companions of the Prophet. While for some scholars this category of blasphemy is a special category in which the person remains a Muslim, but can be killed as a punishment for this offense, others maintain that committing such a sin automatically removes the person from the fold of Islam. If the act is committed by a non-Muslim, then the question of apostasy does not arise, but the person can still be punished by death for blasphemy. As with apostasy, the punishment for blasphemy appears to be based on certain incidents in the lifetime of the Prophet as there is no clear Qur’anic instruction on the matter. Even when the Qur’an uses the term sabb, as in 6:108, it only commands Muslims to refrain from reviling the deities of non-Muslims lest they revile God, but without any reference to punishment in this life. While scholars cite incidents in early Islamic history in support of imposing the death penalty for blasphemy, it is clear that neither the Qur’an nor Sunna declare the existence of an offense called “blasphemy” or a specific punishment for it (Saeed and Saeed 2004, 38–39).

Similar problems exist with the jurisprudence regarding heresy. The term heresy (zandaqah) is applied in Shari`a sources to a heretic whose teachings become a danger to the Islamic community, thereby rendering him liable to the death penalty. However, the term and its derivatives do not appear in the Qur’an at all, and seem to have come into Arabic from Persian. This term was apparently used for the first time in connection with the execution of Ja`d bin Dirham in 742—more than a century after the Prophet’s death. “In practice, the polemics of the conservatives describe as a zindik (one who is guilty of zandaqah) anyone whose external profession of Islam seems to them to be not sufficiently sincere” (Gibb and Kramers 1991, 659). However, there is no agreed definition of what that means and a variety of views exist about “the type of conduct” that constitutes zandaqah, or make a person a zindiq, such as those who outwardly show that they are Muslims while retaining their former religion. But how is that to be known, or proved, in specific cases? Without a clear and specific definition of the term, it is not surprising that some scholars were prepared to infer zindiqah because a person advocated indulgence in various acts that are prohibited in Islam such as zina or drinking wine (Saeed and Saeed 2004, 40). The need for a clear definition is also apparent when one considers that some scholars, of the Hanafi and Maliki schools in particular, deny a zindiq the chance to repent, while an apostate is afforded that opportunity (Saeed and Saeed 2004, 41, 54–55).

As this brief review clearly shows, there has always been substantial confusion and fluidity in these concepts and how they were defined, as well as uncertainty about the basis of their criminal punishment. Since the Qur’an neither defined these concepts nor imposed a punishment for any of them in this life, the present Islamic societies can and should reconsider this aspect of Shari`a in terms of the freedom of religion and belief. In fact, more texts of the Qur’an and Sunna can be cited for this view than in support of imposing any penal or other legal consequences on such conduct (Saeed and Saeed 2004, 69–87). In other words, there should be no penal or other negative legal consequences for apostasy and all of the related concepts from an Islamic perspective because belief in Islam presupposes and requires the freedom of choice, and can never be valid under coercion or intimidation. The possibility of belief in anything logically requires choice in the matter, as one cannot believe in anything without the freedom and ability to disbelieve in it.