Post by StudentOfTheDeen on Mar 2, 2021 14:39:22 GMT
Classical Islāmic Views on the Punishment for Apostasy
By Shaykh Abu Amir
Comments on Classical Islāmic Views on the Punishment for Apostasy
Classically, there has been consensus amongst the Muslim jurists that, in an Islāmic polity, an apostate from Islām who refuses to return back to the religion will be executed. The famous Ḥanbalī jurist, Muwaffaq al-Dīn ibn Qudāmah (541 – 620 H), for example, said: “The people of religious knowledge have reached consensus on the obligation of executing apostates. This has been reported from Abū Bakr, ‘Uthmān, ‘Alī, Mu‘ādh, Abū Mūsā, Ibn ‘Abbās, Khālid and others, without any disapproval – hence, there was consensus.”[1] The famous scholar of ḥadīth and jurisprudence, Ibn Daqīq al-‘Īd (625 – 702 H), said: “Apostasy is a cause of making the blood of a Muslim licit by consensus with respect to a male [apostate].”[2]
There are some explicit ḥadīths which state that a Muslim who renounces the religion should be put to death. Some of these will be mentioned below.
Due to the current political climate, many Muslims feel compelled to reject this ruling and to interpret the statements of the Prophet (peace be upon him) and the jurists as punishments relating to treason and not apostasy. They also claim, there has historically been disagreement on this ruling.
In light of a recent defence of this revisionist take on the Islāmic law of apostasy,[3] the following will address the opinions of ‘Umar ibn al-Khaṭṭāb, Ibrāhīm al-Nakha‘ī and ‘Umar ibn ‘Abd al-‘Azīz, as statements of all three have been misrepresented to support the claim that there was no consensus. A few more relevant issues will then be touched upon.
‘Umar ibn al-Khaṭṭāb
An incident has been quoted in some collections of ḥadīth that ‘Umar ibn al-Khaṭṭāb denounced the execution of an apostate or a group of apostates. This has been misrepresented by some individuals to support the claim that ‘Umar rejected the death penalty for apostates altogether. What ‘Umar in fact denounced was the execution of apostates without affording them the opportunity to repent and return back to the religion. I will quote a few narrations below, showing explicitly that ‘Umar was in support of the death penalty for apostasy, so as to leave no doubt over his opinion on this matter.
On the very incident in question, Sufyān ibn ‘Uyaynah (d. 198 H) narrates from Muḥammad ibn ‘Abd al-Raḥmān ibn ‘Abd al-Qārrī from his father, ‘Abd al-Raḥmān ibn ‘Abd (d. 80), that he narrates:
With respect to the chain of narration, ‘Abd al-Raḥmān ibn ‘Abd al-Qārrī was from the senior Tābi‘īn, born in the time of the Prophet (peace be upon him). He is known to have accompanied ‘Umar, and is regarded as a trustworthy transmitter found in the six famous collections of ḥadīth. His son, Muḥammad, is amongst those known to have narrated from him.[5]
It is clear from this version of the report that ‘Umar did not contest the death penalty for apostasy. He only disapproved of the procedure that was followed. An apostate must be afforded the opportunity to repent before he is sentenced to death. After being given this opportunity, however, ‘Umar himself said the apostate will be executed if he refuses to repent.
Below are two further reports which prove that ‘Umar supported the death penalty for apostasy:
‘Abd al-Razzāq al-Ṣan‘ānī reports in his Muṣannaf from his teacher, Ma‘mar ibn Rāshid (d. 153), from his teacher, al-Zuhrī (d. 124), from ‘Ubaydullāh ibn ‘Abdillāh ibn ‘Utbah (d. 98), one of the seven great jurists of Madīnah, from his father, a Ṣaḥābī by the name of ‘Abdullāh ibn ‘Utbah, that he said:
This is an authentic report.
Second, Ibn Abī Shaybah reports in his Muṣannaf from ‘Abd al-Raḥīm ibn Sulaymān from Ḥajjāj ibn Arṭāt from ‘Amr ibn Shu‘ayb from his father from his grandfather, ‘Abdullāh ibn ‘Amr ibn ‘Āṣ, that he said:
There is some weakness in the chain of this report due to Ḥajjāj ibn Arṭāt. However, it is acceptable as a supporting narration.
In short, the view of ‘Umar ibn al-Khaṭṭāb does not negate the consensus on the death penalty for apostasy. His position is clearly in agreement with the death penalty. He only believed that apostates should be afforded the opportunity to repent, in which he has historically been supported by the vast majority of jurists.
Ibrāhīm al-Nakha‘ī
Ibrāhīm al-Nakha‘ī is a famous jurist of Kūfah from the era of the Tābi‘īn. The cause of confusion here is a report from him stating that an apostate will be asked to repent indefinitely.[8]
However, this does not mean an apostate should never be executed, but that if a Muslim apostatises, he will be asked to repent, and if he repents he will be released. If the same person apostatises again and then repents, he will be released a second time. According to al-Nakha‘ī, this can potentially go on indefinitely. However, if he does not repent, he will be executed according to al-Nakha‘ī too, as mentioned in clear reports from him (see below). Ibn Ḥajar explains this in his Fatḥ al-Bārī.[9] In fact, in one version of this statement of al-Nakha‘ī, it states: “An apostate will be asked to repent indefinitely every time he relapses [into disbelief]”,[10] making the intent of his statement very clear.
Mughīrah ibn Miqsam (d. 133 H) narrates from Ibrahīm al-Nakha‘ī with regards to the apostate: “He will be asked to repent. If he repents he will be released, and if he refuses, he will be killed.”[11]
Al-Nakha‘ī even advocated the view that a female apostate will be executed if she refuses to repent, as mentioned in a couple of reports.[12]
Hence, al-Nakha‘ī’s view also does not negate the transmitted consensus.
‘Umar ibn ‘Abd al-‘Azīz
A narration is quoted from ‘Umar ibn ‘Abd al-‘Azīz, the famous righteous Muslim caliph, that a group of people left Islām after having accepted it briefly and ‘Umar ibn ‘Abd al-‘Azīz ordered that the jizyah tax be re-enforced on them and they be left alone.[13]
However, this was his policy with respect to a group of people who accepted Islām without knowledge of its basic teachings. In an authentic narration, it is reported that ‘Urwah wrote to ‘Umar ibn ‘Abd al-‘Azīz asking about a man who accepted Islām and then apostatised. ‘Umar wrote back to him: “Ask him about the basic teachings of Islām. If he was aware of them, offer Islām to him, and if he refuses, strike his neck. If he was not aware of them, harshen the jizyah tax and release him.”[14]
This report makes his position clear. He was in favour of the death penalty, but in the case where a person came into Islām without an understanding of its basic teachings, he did not regard apostasy in this case to be true apostasy.
In short, the view of all three of these personalities from the early generations of Muslims was clearly in favour of the death penalty for apostates, and can in no way be advanced to suggest that there was no consensus.
“Parting From the Community”
Some people exploit the wording found in a famous ḥadīth, “the blood of a Muslim is not licit except in three cases,” with the third being, “the one who leaves the religion, parting from the community” (al-tāriku li dīnihī, al-mufāriqu li l-jamā‘ah), by claiming that “parting from the community” implies rebellion, treason and an act of war, something over and above leaving the religion. But this is incorrect. Parting from the community is simply an explanation of what it means to leave the religion: the one who apostatizes is no longer from the Muslim community, but is now from the non-Muslim community.
Ibn Ḥajar explains in his Fatḥ al-Bārī that “parting from the community” is an explanatory attribute (ṣifah mufassirah) and not an extra, independent attribute (ṣifah mustaqillah). He quotes al-Bayḍāwī who said the phrase “parting from the community” is an attribute confirming the previous phrase, and merely means, “he ceases to be part of them” (kharaja min jumlatihim). Ibn Ḥajar further explains that this is supported by the fact that another version of this narration, reported by ‘Uthmān, only mentions “the one who disbelieves after having accepted Islām,” which al-Nasa’ī narrated with an authentic chain. The same narration appears in a ḥadīth from ‘Āishah with the words: “disbelieves after having accepted Islām” and in a ḥadīth from Ibn ‘Abbās with the words: “apostatizes after having believed.”[15]
Legal Cause
Some people misunderstand what some of the classical jurists mentioned regarding the legal cause of this ruling. While the majority state that a female apostate should be sentenced to death if she refuses to repent just like a man, the Ḥanafīs famously say that she should be imprisoned and forced to return to Islām, but not killed. One justification given for this distinction by the Ḥanafī jurists is that a man is a potential enemy combatant (muḥārib). In a territory governed by Islāmic law, religious affiliations naturally bring with them political affiliations. And since only a male non-Muslim can add force to a non-Muslim army, some Ḥanafī jurists argued that this is the reason why male apostates are killed to the exclusion of female ones. But no Ḥanafī jurist stipulated a further condition to apostasy (besides the refusal to repent) for the death sentence. A male apostate could easily have been asked to join the non-Muslim residents of a Muslim-governed region, i.e. the Ahl al-Dhimmah. But he is not, even if he gives assurances that he will not threaten the Islāmic regime in any way. The simple reason for this is that the actual legal cause for the death penalty is, as the Ḥanafī jurists themselves stated, “remaining firmly on disbelief after accepting the faith” (iṣrār ‘ala l-kufr).
One very famous late Ḥanafī jurist, Ibn ‘Ābidīn al-Shāmī, stated that the wisdom behind the death penalty is the greater objective of preserving the religious belief of the Muslim residents. If a person who leaves the faith is allowed to live freely amongst the residents, this could be an impetus for the weak believers to follow suit, and renounce the religion.[16]
Pardoning Like Other Offences
Some people argue that if apostasy is a capital offence, then it should not be pardonable just like other punishable offences, like theft and murder. Ibn ‘Ābidīn also explains that it is not apostasy per se that is a capital offence, but remaining firmly on disbelief after having accepted the faith. That is, the capital offence is the refusal to return back to the religion after committing apostasy, not apostasy alone.[17]
Addendum: Apostasy, Islām and Nation States
“Logical” Analysis and Hypothesis
Logical proofs are advanced to undermine the ruling of apostasy. It is argued that disagreeing with Islām attracts no sanction, yet doing so once accepted, deserves death. This, the argument goes, is as irrational as arguing “fornicating before accepting Islām attracts no sanction yet doing so after becoming Muslim does”, and therefore the original ruling is logically flawed and incoherent. The argument is in fact a non-argument.
It is further argued that, hypothetically, were such “discriminatory laws” enacted in modern states like the UK, US and France, the people adhering to the classical view would be complaining about human rights violations. In other words, there is a double standard at play.
This argument is the weakest and demonstrates ignorance of the conception of the nation state. Such an argument confuses the ruling between two paradigms and effectively imposes a western secular liberal epistemology of so-called “rationalism” upon Shari’ah. It also presumes that “discrimination” on the basis of beliefs do not occur.
Firstly, the law applies to Muslims, not non-Muslims. Due the foundation of governance being Islām itself, religious affiliations naturally bring with them political affiliations. This bring us to a fundamental point.
Nation State and Belief
There is a paradigmatic difference between Islām and the conception of the modern Nation State. With the onset of the 20th century, artificial boundaries were imposed on the world based upon the Eurocentric experience. From the ashes of WWI and II emerged countries which were created loosely in the image of the Western nation state. Secularisation meant that all religions became subordinate to and excised from the state political realm. However, this paradigm shift deposed traditional religions as a basis for governance with a new religion, the “nation state” itself.
The forging of a “national identity” means coercing the people over time to believe in ethereal symbols which helps unify a nation. Renowned Professor Emeritus of Nationalism and Ethnicity and one of the founders of nationalism studies, British sociologist Anthony Smith elucidates in his text, Nations and Nationalism in a Global Era,
“Undermining” the National State belief system
Philosophically contested, and vague ideas of liberalism, for instance become necessary tools for the state to foster a criteria of “integrated” and dissident citizens. We saw how nationalism was powerfully exploited in a cult like fashion by Hitler. A contemporary manifestation of this can be found in the famous case of Refah Partisi. In 2003, the European Court of Human Rights supported the Turkish court in expelling the party due to the fact that they were likely to win the elections, but wished to introduce Islāmic principles, including allowing women to wear the Hijab again in public institutions. The underlying reason for this ruling was the threat to the secular nature of the regime.
A local example can be found in David Cameron’s speech in Birmingham, in which the Prime Minister called for everyone to rally under “British values”, against “extremism”.[19] Cameron previously stated that,
The PM thus encouraged the people to promote State beliefs of “British values”. Those who do not (i.e. “vocally oppose”) are excommunicated to the nebulous realm of “extremism” and subjected to various “discriminatory” measures. “Extremists”, thus are the “apostates” of the nation state religion. Whilst it is ostensibly true that these “apostates” are not “put to death”, for holding dissenting views, the incongruity of the secular model is that, whilst it propounds equality regardless of personally held beliefs, those who hold views denoted by the State to be “extreme”, will be disadvantaged in public life, resulting in a loss of earnings, social standing etc. The reason is the “undermining of democracy”, as articulated by Theresa May.[21]
Discrimination on the basis of belief and culture in Western states does occur, however due to the presumed, encultured normalcy of the secular nation state model, we rarely recognise it. The criteria utilised for “discriminating” is different. The grounds and criteria for it is nationalism – i.e. the “discrimination” of non-nationals versus national, or non-EU nationals versus EU nationals. Nationalism even encourages discriminatory treatment of nationals too if they differ from “beliefs” promoted by the state. After citing French treatment of minorities and noting the crisis of nation states, the professor writes,
We can equally argue in accordance with the proposed “rational argument” advanced against Islāmic apostasy laws, that this is outrageous too.
Nation State and National Security
Varying systems of governance have their own measures to preserve social order. In the theological explanation above, it was explained that some ‘ulama’ did refer to the effect of the ruling (not the cause), in that it acted as a means to deter and prevent social unrest and, ultimately, preserve the spiritual health of the community.
Where someone leaves the faith it can be construed as a threat to the spiritual health and by extension the social and political security of the community. As such, a strong deterrent is required to prevent this. Thus, when a Muslim who understands the faith makes a conscious decision to leave it, he will be subject to capital punishment after being reasoned with and given the opportunity to recant. The legal process is made clear to all, as is the fact that the jurisdiction of this law is limited to a land governed through Islām.
In the modern nation state paradigm, the discourse of “national security” has become prevalent particularly after WWII. It entails political and societal security, the latter requiring social order. Social order according to David Cameron for instance, necessitates defeating “extremism”,[23] or an ideological threat to the state. His British values and counter-extremism strategy has already been discussed above.
Where a person is deemed a security threat, he will be pursued often using secret evidence, without a fair hearing, due process and in judicially murky waters. Furthermore, this defence of national security manifests in a borderless manner. Britain for instance, has recently started engaging in “banishment”. Measures are now in place to strip the nationality of individuals who are under mere suspicion of being a threat to national security, i.e. individuals who are not criminals and therefore not put through a judicial process.[24] In 2013, the Home Secretary Theresa May had removed the passports of British nationals while they were abroad, only for them to be killed in drone attacks.[25] The treatment of whistleblowers like Edward Snowden also brings to light the modern implication of perceivably “undermining” national security. Snowden is unable to return to his country because he fears the death penalty.[26]
Under the same premise (threat to national security), Muslim citizens have been “put to death” through “clinical killing” due to their “apostasy” in terms of the values promoted by the nation state.[27] And again, under the same premise, the west will engage in wars to “protect” and project Western values.
In other words the leading proponents of secular liberal democracy “put to death” people based upon a criteria of “national security” rooted in the belief system of the nation state.
The law in Islām is clear and constrained by an extensive legal process. Each model of governance has its own criterion which determines what constitutes societies’ best interests. All states seek to protect themselves and their citizenry for their own reasons. Islām in its spiritual and political capacity is no different, except that its implementation is transparent, and less intrusive (Islām actively discourages spying on its citizens, and encourages providing alternate explanations to statements and actions which may seem to violate the Islāmic creed) than the Western implementations.
Endnotes
[1] al-Mughnī, Dār ‘Ālam al-Kutub, 12:264
[2] Fatḥ al-Bārī, Dār al-Salām, 12:251
[3] This has been drafted in reference to statements recently made on Facebook by Abu Layth of Birmingham, UK
[4] Muṣannaf Ibn Abī Shaybah, Dār al-Qiblah, 14:594
[5] Siyar A‘lām al-Nubalā’, Mu’assasat al-Risālah, 4:14-5
[6] Muṣannaf ‘Abd al-Razzāq, al-Maktab al-Islāmī, 10:169
[7] Muṣannaf Ibn Abī Shaybah, Dār al-Qiblah, 17:438
[8] Muṣannaf ‘Abd al-Razzāq, al-Maktab al-Islāmī, 10:166
[9] Fatḥ al-Bārī, Dār al-Salām, 12:337
[10] al-Sunan al-Kubrā, Dār al-Kutb al-‘Ilmiyyah, 8:342
[11] Muṣannaf Ibn Abī Shaybah, Dār al-Qiblah, 14:594
[12] Muṣannaf Ibn Abī Shaybah, Dār al-Qiblah, 14:599; Muṣannaf ‘Abd al-Razzāq, al-Maktab al-Islāmī, 10:176
[13] Muṣannaf ‘Abd al-Razzāq, al-Maktab al-Islāmī, 10:171
[14] Muṣannaf ‘Abd al-Razzāq, al-Maktab al-Islāmī, 10:171
[15] Fatḥ al-Bārī, Dār al-Salām, 12:251
[16] Majmū‘ah Rasā’il Ibn ‘Ābidīn, 1:319
[17] Majmū‘ah Rasā’il Ibn ‘Ābidīn, 1:319
[18] Nations and Nationalism in a Global Era, “Problems of civic and ethnic nationalisms”, 1995
[19] www.independent.co.uk/news/uk/politics/david-cameron-extremism-speech-read-the-transcript-in-full-10401948.html
[20] www.independent.co.uk/news/uk/politics/britain-is-too-tolerant-and-should-interfere-more-in-peoples-lives-says-david-cameron-10246517.html
[21] www.theguardian.com/politics/2014/sep/30/theresa-may-tory-government-snoopers-charter
[22] Nations and Nationalism in a Global Era, “Problems of civic and ethnic nationalisms”, 1995
[23] www.gov.uk/government/speeches/extremism-pm-speech
[24] www.theguardian.com/politics/2014/jan/29/theresa-may-terror-suspects-citizenship-clegg-approval
[25] www.thebureauinvestigates.com/2013/02/27/former-british-citizens-killed-by-drone-strikes-after-passports-revoked/
[26] www.catholic.org/news/politics/story.php?id=55578
[27] www.theguardian.com/world/2015/sep/07/david-cameron-justifies-drone-strikes-in-syria-against-britons-fighting-for-isis
Taken from HERE
When the news of the conquest of Tustar reached ‘Umar, he asked them: “Any news?” They said: “There was a man amongst the Muslims who joined the idolaters so we captured him.” He said: “What did you do with him?” They said: “We executed him.” He said: “Why did you not put him in a room and lock the door, feed him a loaf of bread each day, and then ask him three times to repent: then if he repents – good and well –, and if not, execute him?” Then he said: “O Allāh, bear witness, I did not order this nor was I happy when its news reached me.”[4]
It is clear from this version of the report that ‘Umar did not contest the death penalty for apostasy. He only disapproved of the procedure that was followed. An apostate must be afforded the opportunity to repent before he is sentenced to death. After being given this opportunity, however, ‘Umar himself said the apostate will be executed if he refuses to repent.
Below are two further reports which prove that ‘Umar supported the death penalty for apostasy:
‘Abd al-Razzāq al-Ṣan‘ānī reports in his Muṣannaf from his teacher, Ma‘mar ibn Rāshid (d. 153), from his teacher, al-Zuhrī (d. 124), from ‘Ubaydullāh ibn ‘Abdillāh ibn ‘Utbah (d. 98), one of the seven great jurists of Madīnah, from his father, a Ṣaḥābī by the name of ‘Abdullāh ibn ‘Utbah, that he said:
‘Abdullāh ibn Mas‘ūd captured a group of men from the inhabitants of ‘Irāq who had apostatized from Islām. He wrote concerning them to ‘Umar. He wrote back to him: “Offer to them the true religion and to bear testimony that there is no deity but Allāh. If they accept, release them. If they do not accept, execute them.” Some of them accepted so he released them and some did not accept so he killed them.[6]
Second, Ibn Abī Shaybah reports in his Muṣannaf from ‘Abd al-Raḥīm ibn Sulaymān from Ḥajjāj ibn Arṭāt from ‘Amr ibn Shu‘ayb from his father from his grandfather, ‘Abdullāh ibn ‘Amr ibn ‘Āṣ, that he said:
Amr ibn ‘Āṣ wrote to ‘Umar ibn al-Khaṭṭāb that a man had converted to disbelief after belief. ‘Umar wrote back to him: “Ask him to repent. If he repents, accept it, and if not strike his neck.”[7]
In short, the view of ‘Umar ibn al-Khaṭṭāb does not negate the consensus on the death penalty for apostasy. His position is clearly in agreement with the death penalty. He only believed that apostates should be afforded the opportunity to repent, in which he has historically been supported by the vast majority of jurists.
Ibrāhīm al-Nakha‘ī
Ibrāhīm al-Nakha‘ī is a famous jurist of Kūfah from the era of the Tābi‘īn. The cause of confusion here is a report from him stating that an apostate will be asked to repent indefinitely.[8]
However, this does not mean an apostate should never be executed, but that if a Muslim apostatises, he will be asked to repent, and if he repents he will be released. If the same person apostatises again and then repents, he will be released a second time. According to al-Nakha‘ī, this can potentially go on indefinitely. However, if he does not repent, he will be executed according to al-Nakha‘ī too, as mentioned in clear reports from him (see below). Ibn Ḥajar explains this in his Fatḥ al-Bārī.[9] In fact, in one version of this statement of al-Nakha‘ī, it states: “An apostate will be asked to repent indefinitely every time he relapses [into disbelief]”,[10] making the intent of his statement very clear.
Mughīrah ibn Miqsam (d. 133 H) narrates from Ibrahīm al-Nakha‘ī with regards to the apostate: “He will be asked to repent. If he repents he will be released, and if he refuses, he will be killed.”[11]
Al-Nakha‘ī even advocated the view that a female apostate will be executed if she refuses to repent, as mentioned in a couple of reports.[12]
Hence, al-Nakha‘ī’s view also does not negate the transmitted consensus.
‘Umar ibn ‘Abd al-‘Azīz
A narration is quoted from ‘Umar ibn ‘Abd al-‘Azīz, the famous righteous Muslim caliph, that a group of people left Islām after having accepted it briefly and ‘Umar ibn ‘Abd al-‘Azīz ordered that the jizyah tax be re-enforced on them and they be left alone.[13]
However, this was his policy with respect to a group of people who accepted Islām without knowledge of its basic teachings. In an authentic narration, it is reported that ‘Urwah wrote to ‘Umar ibn ‘Abd al-‘Azīz asking about a man who accepted Islām and then apostatised. ‘Umar wrote back to him: “Ask him about the basic teachings of Islām. If he was aware of them, offer Islām to him, and if he refuses, strike his neck. If he was not aware of them, harshen the jizyah tax and release him.”[14]
This report makes his position clear. He was in favour of the death penalty, but in the case where a person came into Islām without an understanding of its basic teachings, he did not regard apostasy in this case to be true apostasy.
In short, the view of all three of these personalities from the early generations of Muslims was clearly in favour of the death penalty for apostates, and can in no way be advanced to suggest that there was no consensus.
“Parting From the Community”
Some people exploit the wording found in a famous ḥadīth, “the blood of a Muslim is not licit except in three cases,” with the third being, “the one who leaves the religion, parting from the community” (al-tāriku li dīnihī, al-mufāriqu li l-jamā‘ah), by claiming that “parting from the community” implies rebellion, treason and an act of war, something over and above leaving the religion. But this is incorrect. Parting from the community is simply an explanation of what it means to leave the religion: the one who apostatizes is no longer from the Muslim community, but is now from the non-Muslim community.
Ibn Ḥajar explains in his Fatḥ al-Bārī that “parting from the community” is an explanatory attribute (ṣifah mufassirah) and not an extra, independent attribute (ṣifah mustaqillah). He quotes al-Bayḍāwī who said the phrase “parting from the community” is an attribute confirming the previous phrase, and merely means, “he ceases to be part of them” (kharaja min jumlatihim). Ibn Ḥajar further explains that this is supported by the fact that another version of this narration, reported by ‘Uthmān, only mentions “the one who disbelieves after having accepted Islām,” which al-Nasa’ī narrated with an authentic chain. The same narration appears in a ḥadīth from ‘Āishah with the words: “disbelieves after having accepted Islām” and in a ḥadīth from Ibn ‘Abbās with the words: “apostatizes after having believed.”[15]
Legal Cause
Some people misunderstand what some of the classical jurists mentioned regarding the legal cause of this ruling. While the majority state that a female apostate should be sentenced to death if she refuses to repent just like a man, the Ḥanafīs famously say that she should be imprisoned and forced to return to Islām, but not killed. One justification given for this distinction by the Ḥanafī jurists is that a man is a potential enemy combatant (muḥārib). In a territory governed by Islāmic law, religious affiliations naturally bring with them political affiliations. And since only a male non-Muslim can add force to a non-Muslim army, some Ḥanafī jurists argued that this is the reason why male apostates are killed to the exclusion of female ones. But no Ḥanafī jurist stipulated a further condition to apostasy (besides the refusal to repent) for the death sentence. A male apostate could easily have been asked to join the non-Muslim residents of a Muslim-governed region, i.e. the Ahl al-Dhimmah. But he is not, even if he gives assurances that he will not threaten the Islāmic regime in any way. The simple reason for this is that the actual legal cause for the death penalty is, as the Ḥanafī jurists themselves stated, “remaining firmly on disbelief after accepting the faith” (iṣrār ‘ala l-kufr).
One very famous late Ḥanafī jurist, Ibn ‘Ābidīn al-Shāmī, stated that the wisdom behind the death penalty is the greater objective of preserving the religious belief of the Muslim residents. If a person who leaves the faith is allowed to live freely amongst the residents, this could be an impetus for the weak believers to follow suit, and renounce the religion.[16]
Pardoning Like Other Offences
Some people argue that if apostasy is a capital offence, then it should not be pardonable just like other punishable offences, like theft and murder. Ibn ‘Ābidīn also explains that it is not apostasy per se that is a capital offence, but remaining firmly on disbelief after having accepted the faith. That is, the capital offence is the refusal to return back to the religion after committing apostasy, not apostasy alone.[17]
Addendum: Apostasy, Islām and Nation States
“Logical” Analysis and Hypothesis
Logical proofs are advanced to undermine the ruling of apostasy. It is argued that disagreeing with Islām attracts no sanction, yet doing so once accepted, deserves death. This, the argument goes, is as irrational as arguing “fornicating before accepting Islām attracts no sanction yet doing so after becoming Muslim does”, and therefore the original ruling is logically flawed and incoherent. The argument is in fact a non-argument.
It is further argued that, hypothetically, were such “discriminatory laws” enacted in modern states like the UK, US and France, the people adhering to the classical view would be complaining about human rights violations. In other words, there is a double standard at play.
This argument is the weakest and demonstrates ignorance of the conception of the nation state. Such an argument confuses the ruling between two paradigms and effectively imposes a western secular liberal epistemology of so-called “rationalism” upon Shari’ah. It also presumes that “discrimination” on the basis of beliefs do not occur.
Firstly, the law applies to Muslims, not non-Muslims. Due the foundation of governance being Islām itself, religious affiliations naturally bring with them political affiliations. This bring us to a fundamental point.
Nation State and Belief
There is a paradigmatic difference between Islām and the conception of the modern Nation State. With the onset of the 20th century, artificial boundaries were imposed on the world based upon the Eurocentric experience. From the ashes of WWI and II emerged countries which were created loosely in the image of the Western nation state. Secularisation meant that all religions became subordinate to and excised from the state political realm. However, this paradigm shift deposed traditional religions as a basis for governance with a new religion, the “nation state” itself.
The forging of a “national identity” means coercing the people over time to believe in ethereal symbols which helps unify a nation. Renowned Professor Emeritus of Nationalism and Ethnicity and one of the founders of nationalism studies, British sociologist Anthony Smith elucidates in his text, Nations and Nationalism in a Global Era,
“For the nation and its identity is expressed and revealed in the ‘authentic’ memories, symbols, myths heritage and vernacular of the ‘people’ who form a community of history and destiny and whose intellectuals and professionals seek to authenticate, safeguard and embody that heritage and culture through cultural and educational institutions in an autonomous homeland. The need for protection, recognition and belonging encourages the nation and its members, especially its intellectual and professionals, to seek to institutionalize their symbols, culture and heritage in and through a nation state which will both embody that heritage, symbols and culture and fulfil these needs.”[18]
“Undermining” the National State belief system
Philosophically contested, and vague ideas of liberalism, for instance become necessary tools for the state to foster a criteria of “integrated” and dissident citizens. We saw how nationalism was powerfully exploited in a cult like fashion by Hitler. A contemporary manifestation of this can be found in the famous case of Refah Partisi. In 2003, the European Court of Human Rights supported the Turkish court in expelling the party due to the fact that they were likely to win the elections, but wished to introduce Islāmic principles, including allowing women to wear the Hijab again in public institutions. The underlying reason for this ruling was the threat to the secular nature of the regime.
A local example can be found in David Cameron’s speech in Birmingham, in which the Prime Minister called for everyone to rally under “British values”, against “extremism”.[19] Cameron previously stated that,
“For too long, we have been a passively tolerant society, saying to our citizens ‘as long as you obey the law, we will leave you alone’… It’s often meant we have stood neutral between different values. And that’s helped foster a narrative of extremism and grievance…”[20]
Discrimination on the basis of belief and culture in Western states does occur, however due to the presumed, encultured normalcy of the secular nation state model, we rarely recognise it. The criteria utilised for “discriminating” is different. The grounds and criteria for it is nationalism – i.e. the “discrimination” of non-nationals versus national, or non-EU nationals versus EU nationals. Nationalism even encourages discriminatory treatment of nationals too if they differ from “beliefs” promoted by the state. After citing French treatment of minorities and noting the crisis of nation states, the professor writes,
“Not only ethnic but civic nationalism may demand the eradication of minority cultures and communities qua communities, on the common assumptions, shared by Marxists and liberals, not just of equality through uniformity, but that ‘high cultures’, and ‘great nations’, are necessarily of greater value than ‘low’ cultures and small nations and ethnies… the civic equality of co-nationals destroys all associations and bodies that stand between the citizen and state, and the ideology of civil nationalism relegates the customary vernacular to the margins of society, to the family and folklore. In doing so, it also delegitimizes and devalues the ethnic cultures of resident minorities and immigrants alike, and doing so consciously and deliberately.”[22]
Nation State and National Security
Varying systems of governance have their own measures to preserve social order. In the theological explanation above, it was explained that some ‘ulama’ did refer to the effect of the ruling (not the cause), in that it acted as a means to deter and prevent social unrest and, ultimately, preserve the spiritual health of the community.
Where someone leaves the faith it can be construed as a threat to the spiritual health and by extension the social and political security of the community. As such, a strong deterrent is required to prevent this. Thus, when a Muslim who understands the faith makes a conscious decision to leave it, he will be subject to capital punishment after being reasoned with and given the opportunity to recant. The legal process is made clear to all, as is the fact that the jurisdiction of this law is limited to a land governed through Islām.
In the modern nation state paradigm, the discourse of “national security” has become prevalent particularly after WWII. It entails political and societal security, the latter requiring social order. Social order according to David Cameron for instance, necessitates defeating “extremism”,[23] or an ideological threat to the state. His British values and counter-extremism strategy has already been discussed above.
Where a person is deemed a security threat, he will be pursued often using secret evidence, without a fair hearing, due process and in judicially murky waters. Furthermore, this defence of national security manifests in a borderless manner. Britain for instance, has recently started engaging in “banishment”. Measures are now in place to strip the nationality of individuals who are under mere suspicion of being a threat to national security, i.e. individuals who are not criminals and therefore not put through a judicial process.[24] In 2013, the Home Secretary Theresa May had removed the passports of British nationals while they were abroad, only for them to be killed in drone attacks.[25] The treatment of whistleblowers like Edward Snowden also brings to light the modern implication of perceivably “undermining” national security. Snowden is unable to return to his country because he fears the death penalty.[26]
Under the same premise (threat to national security), Muslim citizens have been “put to death” through “clinical killing” due to their “apostasy” in terms of the values promoted by the nation state.[27] And again, under the same premise, the west will engage in wars to “protect” and project Western values.
In other words the leading proponents of secular liberal democracy “put to death” people based upon a criteria of “national security” rooted in the belief system of the nation state.
The law in Islām is clear and constrained by an extensive legal process. Each model of governance has its own criterion which determines what constitutes societies’ best interests. All states seek to protect themselves and their citizenry for their own reasons. Islām in its spiritual and political capacity is no different, except that its implementation is transparent, and less intrusive (Islām actively discourages spying on its citizens, and encourages providing alternate explanations to statements and actions which may seem to violate the Islāmic creed) than the Western implementations.
Endnotes
[1] al-Mughnī, Dār ‘Ālam al-Kutub, 12:264
[2] Fatḥ al-Bārī, Dār al-Salām, 12:251
[3] This has been drafted in reference to statements recently made on Facebook by Abu Layth of Birmingham, UK
[4] Muṣannaf Ibn Abī Shaybah, Dār al-Qiblah, 14:594
[5] Siyar A‘lām al-Nubalā’, Mu’assasat al-Risālah, 4:14-5
[6] Muṣannaf ‘Abd al-Razzāq, al-Maktab al-Islāmī, 10:169
[7] Muṣannaf Ibn Abī Shaybah, Dār al-Qiblah, 17:438
[8] Muṣannaf ‘Abd al-Razzāq, al-Maktab al-Islāmī, 10:166
[9] Fatḥ al-Bārī, Dār al-Salām, 12:337
[10] al-Sunan al-Kubrā, Dār al-Kutb al-‘Ilmiyyah, 8:342
[11] Muṣannaf Ibn Abī Shaybah, Dār al-Qiblah, 14:594
[12] Muṣannaf Ibn Abī Shaybah, Dār al-Qiblah, 14:599; Muṣannaf ‘Abd al-Razzāq, al-Maktab al-Islāmī, 10:176
[13] Muṣannaf ‘Abd al-Razzāq, al-Maktab al-Islāmī, 10:171
[14] Muṣannaf ‘Abd al-Razzāq, al-Maktab al-Islāmī, 10:171
[15] Fatḥ al-Bārī, Dār al-Salām, 12:251
[16] Majmū‘ah Rasā’il Ibn ‘Ābidīn, 1:319
[17] Majmū‘ah Rasā’il Ibn ‘Ābidīn, 1:319
[18] Nations and Nationalism in a Global Era, “Problems of civic and ethnic nationalisms”, 1995
[19] www.independent.co.uk/news/uk/politics/david-cameron-extremism-speech-read-the-transcript-in-full-10401948.html
[20] www.independent.co.uk/news/uk/politics/britain-is-too-tolerant-and-should-interfere-more-in-peoples-lives-says-david-cameron-10246517.html
[21] www.theguardian.com/politics/2014/sep/30/theresa-may-tory-government-snoopers-charter
[22] Nations and Nationalism in a Global Era, “Problems of civic and ethnic nationalisms”, 1995
[23] www.gov.uk/government/speeches/extremism-pm-speech
[24] www.theguardian.com/politics/2014/jan/29/theresa-may-terror-suspects-citizenship-clegg-approval
[25] www.thebureauinvestigates.com/2013/02/27/former-british-citizens-killed-by-drone-strikes-after-passports-revoked/
[26] www.catholic.org/news/politics/story.php?id=55578
[27] www.theguardian.com/world/2015/sep/07/david-cameron-justifies-drone-strikes-in-syria-against-britons-fighting-for-isis
Taken from HERE