Post by StudentOfTheDeen on Mar 3, 2021 12:09:51 GMT
Al-Sarakhsī on Apostasy -
A Response to Dr Jonathan AC Brown
A Response to Dr Jonathan AC Brown
By Shaykh Abu Amir
Dr Jonathan Brown has written a paper on the Islāmic ruling on apostasy. [1] The basic thesis he argues is summarised in the abstract:
The Shariah consists of some laws that remain the same regardless of changing circumstances and others that change with them. Most of the Shariah is up to individual Muslims to follow in their own lives. Some are for judges to implement in courts. Finally, the third set of laws is for the ruler or political authority to implement based on the best interests of society. The Shariah ruling on Muslims who decide to leave Islam belongs to this third group. Implemented in the past to protect the integrity of the Muslim community, today this important goal can best be reached by Muslim governments using their right to set punishments for apostasy aside.
The principal juristic source Brown uses for arguing this thesis is a discussion by the early Ḥanafī jurist, al-Sarakhsī. Brown does not merely argue his position using al-Sarakhsī’s text, but claims al-Sarakhsī actually held the position he is defending, i.e. that the Sharī‘ah does not stipulate a fixed punishment for leaving Islām, but leaves it up to the ruler to implement it on a discretionary, administrative, basis.
Here we will address this claim, and show that had Brown quoted one of the sentences he translated from al-Sarakhsī fully, it would have been clear that his reading of al-Sarakhsī was incorrect. We will also look at al-Sarakhsī’s other writings as well as that of the jurists of his school to establish that their legal philosophy for punishing apostasy is of a more fundamental nature than Brown makes out.
There are other problems with Brown’s arguments against a fixed, unchanging, capital punishment for apostasy in Sharī‘ah [2], but it is not the purpose of this piece to address these.
Here is the relevant discussion from Brown’s article:
Though we’ll refer to ridda as apostasy for the sake of convenience, as in so many cases, the heart of the matter lies in the simple act of translation. In the time of the Prophet Muhammad ﷺ and the early Muslim community, the Arabic noun ridda and the verb for engaging in it were understood not as meaning a personal choice of changing one’s religion but as the public act of political secession from the Muslim community.
…
In the logic of this order, questioning Islam’s primacy was to undermine the societal order itself. As a result, all pre-modern Muslim schools of law considered apostasy to be a serious crime. The majority of Muslim scholars considered it among the Hudud crimes (leading voices in the Hanafi school of law were exceptions to this), albeit with some important distinctions.[7]
That apostasy was understood primarily as a threat to an overarching political order and not as a crime in and of itself is clear from how Muslim jurists described it. Apostasy differed from other serious crimes, such as fornication and murder, because on its own it did not transgress the rights of others. As a result, unlike other crimes, if someone who had left Islam decided to recant, the crime of apostasy vanished and no punishment followed. For a crime like murder, on the other hand, even if the perpetrator deeply regretted his act, the harm had been done and the victim and their family had a right to justice. Leaving Islam and embracing unbelief are great offenses, said the famous Hanafi jurist al-Sarakhsī (d. circa 1096 CE). “But they are between the human being (lit. the slave) and his Lord,” he added. Their punishment lies in the Hereafter. “What punishments there are here in this world [for apostasy],” he continued, “are policies set down for the common good of human beings (siyāsāt mashrūʿa li-maṣāliḥ taʿūdu ilā al-ʿibād).” Someone who repeatedly and insistently proclaimed their apostasy from Islam was akin to a violent criminal threatening public safety, al-Sarakhsī explained. The common good that apostasy threatened was the Shariah itself and the rights that it pledged to protect for all its subjects, Muslim or not: rights to physical integrity, property, religion, reason, family and honor (ʿirḍ).[8]
“The word that al-Sarakhsī used to indicate ‘policy,’ siyāsa, is crucial for understanding the functioning of Islamic law in general and issues like apostasy in particular. Siyāsa can be translated as politics, governance, administrative law and even criminal law. Its functions varied, but what unified them is that, while most of Islamic law was applied by independent Muslim judges (in fact, it was jealously guarded by them in part out of fear of political abuse), siyāsa fell under the purview of the ruler/political authority.[9] Siyāsa included areas that clearly belonged to an executive political authority, such as foreign policy, military organization, dealing with non-Muslim minorities in a Muslim state and mundane administrative laws (think: traffic laws). Other issues, like taxation, would come under siyāsa provided the ruler didn’t exceed certain limits.
Finally, there were areas of criminal law like violent theft or premeditated murder that Muslim jurists understood to be left to the ruler for final decision. According to al-Sarakhsī and many other Muslim legal theorists, this is where the topic of apostasy belonged.
…
[7] See Wahba al-Zuḥaylī, Mawsūʿat al-fiqh al-islāmī, 14 vols. (Damascus: Dār al-Fikr, 2010), 5:714-15.
[8] Shams al-Dīn al-Sarakhsī, al-Mabsūṭ, 30 vols. (Beirut: Dār al-Maʿrifa, n.d.), 10:110. I’m indebted to Ramon Harvey for this insight. See ramonharvey.com/category/islamic-jurisprudence/
…
In the logic of this order, questioning Islam’s primacy was to undermine the societal order itself. As a result, all pre-modern Muslim schools of law considered apostasy to be a serious crime. The majority of Muslim scholars considered it among the Hudud crimes (leading voices in the Hanafi school of law were exceptions to this), albeit with some important distinctions.[7]
That apostasy was understood primarily as a threat to an overarching political order and not as a crime in and of itself is clear from how Muslim jurists described it. Apostasy differed from other serious crimes, such as fornication and murder, because on its own it did not transgress the rights of others. As a result, unlike other crimes, if someone who had left Islam decided to recant, the crime of apostasy vanished and no punishment followed. For a crime like murder, on the other hand, even if the perpetrator deeply regretted his act, the harm had been done and the victim and their family had a right to justice. Leaving Islam and embracing unbelief are great offenses, said the famous Hanafi jurist al-Sarakhsī (d. circa 1096 CE). “But they are between the human being (lit. the slave) and his Lord,” he added. Their punishment lies in the Hereafter. “What punishments there are here in this world [for apostasy],” he continued, “are policies set down for the common good of human beings (siyāsāt mashrūʿa li-maṣāliḥ taʿūdu ilā al-ʿibād).” Someone who repeatedly and insistently proclaimed their apostasy from Islam was akin to a violent criminal threatening public safety, al-Sarakhsī explained. The common good that apostasy threatened was the Shariah itself and the rights that it pledged to protect for all its subjects, Muslim or not: rights to physical integrity, property, religion, reason, family and honor (ʿirḍ).[8]
“The word that al-Sarakhsī used to indicate ‘policy,’ siyāsa, is crucial for understanding the functioning of Islamic law in general and issues like apostasy in particular. Siyāsa can be translated as politics, governance, administrative law and even criminal law. Its functions varied, but what unified them is that, while most of Islamic law was applied by independent Muslim judges (in fact, it was jealously guarded by them in part out of fear of political abuse), siyāsa fell under the purview of the ruler/political authority.[9] Siyāsa included areas that clearly belonged to an executive political authority, such as foreign policy, military organization, dealing with non-Muslim minorities in a Muslim state and mundane administrative laws (think: traffic laws). Other issues, like taxation, would come under siyāsa provided the ruler didn’t exceed certain limits.
Finally, there were areas of criminal law like violent theft or premeditated murder that Muslim jurists understood to be left to the ruler for final decision. According to al-Sarakhsī and many other Muslim legal theorists, this is where the topic of apostasy belonged.
…
[7] See Wahba al-Zuḥaylī, Mawsūʿat al-fiqh al-islāmī, 14 vols. (Damascus: Dār al-Fikr, 2010), 5:714-15.
[8] Shams al-Dīn al-Sarakhsī, al-Mabsūṭ, 30 vols. (Beirut: Dār al-Maʿrifa, n.d.), 10:110. I’m indebted to Ramon Harvey for this insight. See ramonharvey.com/category/islamic-jurisprudence/
Introductory Comments
Al-Sarakhsī was a prominent Ḥanafī jurist. His Mabsūṭ is a detailed commentary on a condensation of an earlier work also called al-Mabsūṭ or al-Aṣl. This latter work was authored by Imām Muḥammad ibn al-Ḥasan al-Shaybānī, a prominent disciple of Imām Abū Ḥanīfah, and the Ḥanafī madhhab’s codifier. Al-Sarakhsī’s discussion on apostates begins on page 98 and ends on page 124 of the 10th volume of al-Mabsūṭ. Brown focuses only on a small section of this discussion (from pages 109-10) which results in bypassing a fundamental underlying legal philosophy that al-Sarakhsī outlines here as well as elsewhere.
A basic outline of this legal philosophy is as follows. Only the lives of Muslims and of Dhimmīs [permanent non-Muslim residents of an Islamically governed territory (Dārul Islām)] are sacred. Lives of non-Muslim adult males that do not belong to Dārul Islām are not intrinsically sacred, although they can temporarily become impermissible for the taking by treaties and agreements. [4] Hence, when a Muslim apostatises, he is not a Muslim or a Dhimmī, but what is called a “Ḥarbī” – he now no longer fits within the Muslim social structure.
A normal male Ḥarbī without amān (amnesty) that has been subjected to Muslim control will either be executed, enslaved or freed. An apostate-Ḥarbī, however, can only be executed or made to return to Islām. With regards to a female, an original female Ḥarbī is not killed, even in a battle, unless she actually engages in combat. The Ḥanafī reasoning is that just as an original female Ḥarbī is not killed, a female apostate is similarly not killed. It is this latter point that al-Sarakhsī articulates in the section of the Mabsūṭ Brown referred to.
This overall understanding will become clear as we look further into the writings of al-Sarakhsī and that of other earlier and later Ḥanafī jurists. Isolating one part of this narrative and overlooking the rest would of course result in a misconstrual of al-Sarakhsī’s underlying philosophy.
Definition of the Crime of Apostasy
Brown claims “ridda” or apostasy is defined Islāmically as the “public act of political secession from the Muslim community.” However, this is not how it was defined historically.
Towards the beginning of his discussion on apostasy, while explaining why an apostate is executed, al-Sarakhsī states: “This apostate was from the followers of the religion of Allāh’s Messenger (peace and blessings be upon him), and he recognised the wonders of his religion, but then became unobservant of it when he apostatised, so just as nothing besides the sword or Islām is accepted from the Arab idolaters, likewise the apostates – although if he seeks respite, he will be given respite for three days.” [5] Here apostasy is clearly defined as leaving Islām after having embraced it.
The great earlier Ḥanafī jurist, Abū Ja‘far al-Ṭaḥāwī, defines apostasy as “disbelieving after having īmān.” [6] Apostasy is defined explicitly in ḥadīths narrated by Ibn ‘Abbās, ‘Ᾱ’ishah and ‘Uthmān as “leaving Islām after accepting it.” [7] Of course, a person can only be described as having left Islām by openly rejecting it. If he privately rejects it, he will still publicly be regarded as a Muslim. This is based on the well-known fact that the Sharī‘ah only works on what is apparent and leaves the inward reality to Allāh.
It is important to note, however, as have the Ḥanafī jurists, that the crime of apostasy is only truly realised with insistence (iqāmah, iṣrār) on disbelief – i.e. when the individual refuses to turn back to Islām. This is when it becomes binding on the state to carry out the death penalty. If the individual turns back, the punishment is not carried out on him. This is explained by jurists such as al-Taḥāwī, Abū Bakr al-Jaṣṣāṣ, al-Sarakhsī and Ibn ‘Ᾱbidīn. [8]
Of course, the act of apostasy entails the person automatically becomes a “Muḥārib” or “Ḥarbī”, effectively a persona non grata within the social fabric of the Islāmic system of governance. However, this is merely definitional, and does not add anything practically to the definition of “ridda” beyond the act of leaving Islām. For apostasy to be realised, the person does not have to do anything beyond leaving Islām and refusing to turn back to it.
Fixed Punishment
In the original work called al-Mabsūt or al-Aṣl, Imām Muḥammad mentions the punishment for apostasy – that the person is executed unless he recants within a three-day period – and cites narrations from the Prophet and Companions to support this. Then he says: “This is the decree (ḥukm) [of Sharī‘ah] and the established practice (sunnah).” [9] In other words, he is affirming it as a fixed Islāmic ruling.
Similarly, in a narration of Ṣaḥīḥ al-Bukhārī that Brown refers to, in which the Companions Mu‘ādh and Abū Mūsā execute an apostate, Mu‘ādh thrice describes it as “the decree (qaḍā’) of Allāh and his Messenger.” He did not describe it as a judgement that they as rulers or governors decided upon. In fact, Abū Mūsā had this individual tied up, and Mu‘ādh insisted that he will not dismount to greet Abū Mūsā until he carried out Allāh’s judgement on him. [10] It is clear from this narration that the punishment is one of religious necessity, not merely of political expediency. Also noteworthy is that the narration does not mention the individual was a “political threat”. It only states he was a “Jew who became a Muslim and then went back to Judaism.” [11]
In al-Sarakhsī’s other major juristic work, Sharḥ al-Siyar al-Kabīr, he quotes Imām Muḥammad saying: “The [male] apostate is executed if he does not accept Islām, whether a freeman or a slave, because of his (peace and blessings upon him) saying: ‘One who changes his religion, execute him,’ and this includes freemen and slaves. The master of the slave may execute him himself if he so wishes. Ibn ‘Umar did that to a slave of his that converted to Christianity. [This is also] because by apostatising, he has become a Ḥarbī in respect to the ruling of execution, and every Muslim may execute a Ḥarbī who has no protection; although it is best for him to take it to the ruler so that he executes him.” In commenting on why it is best to take the apostate to the ruler, al-Sarakhsī says:
“Because the meaning of ḥadd is found in [executing an apostate] and the fulfilment of ḥudūd is handed over to the ruler.” [12]
The great late Ḥanafī jurist, Ibn ‘Ᾱbidīn, however, argued the punishment for apostasy is in fact a ḥadd and not just “in the meaning of ḥadd”. He argues that even though Ḥanafī jurists did not include it in the section on “ḥudūd”, it falls under the definition of ḥadd as a fixed Islāmic punishment legislated as a right of God. He states:
“Execution is a specific punishment owed to Allāh, consequential upon apostasy specifically, just as stoning is consequential upon a married person’s illicit sex. From this it is clear to you that executing the apostate is a ḥadd, because ḥadd…in Sharī‘ah is a fixed punishment owed to Allāh, so excludes discretionary punishments as they are not specified, and excludes Qiṣāṣ (rules of retaliation), as it is a right of the person…A ḥadd cannot be dropped once its cause is established.” [13]
“[They mention only these four ḥudūd] in the chapter of ḥudūd, but otherwise [ḥudūd] are more than these, since the bandit with his four categories is from them. Likewise the ḥadd of the apostate, since it is of the greatest interest that applies to all people, as in this is preservation of religion, which is greater than the preservation of the four aforementioned. If an apostate was to be left without execution, apostasy of many of the weak in faith would follow one after another. It appears our scholars limited [themselves] to the four mentioned in the book of ḥudūd and mentioned the ḥadd of bandits and apostates in the book of Jihād because of the relevance to fighting them and preparing armies.” [14]
Legal Philosophy of Apostasy Law
A hundred years before al-Sarakhsī, the great Ḥanafī imām, Abū Bakr al-Jaṣṣāṣ, explains why the punishment for male and female apostates differ, and in doing so provides a framework for understanding the legal philosophy of capital punishment for apostasy.
He explains that what causes a person to be entitled to execution for apostasy is a combination of two things: leaving Islām and remaining firmly on disbelief (i.e. refusing to turn back to Islām). However, there is an underlying basis to this, which is that the apostate becomes a Ḥarbī (i.e. neither a Muslim nor a permanent resident of Dārul Islām) by apostatising, and thus the rules pertaining to a Ḥarbī apply (to some extent) to an apostate-Ḥarbī. Thus, there are two types of Ḥarbīs: an original Ḥarbī and an apostate-Ḥarbī. An original male Ḥarbī who remains firmly on his disbelief may be killed when he comes under the control of Muslims, whereas an original female Ḥarbī who remains on disbelief may not be killed. Al-Jaṣṣāṣ thus explains that in the same way that an original female Ḥarbī who remains firmly on disbelief cannot be executed, a female apostate-Ḥarbī can likewise not be executed, as the principal cause in both cases for execution is the same: not being on the religion and remaining firmly on disbelief. He further states that a male Ḥarbī’s blood only becomes “protected” by accepting Islām. However, a female’s blood is always “protected” whether Ḥarbī or not. This explains the difference between the ruling of a male and female apostate. [15]
Note, there are of course more basic reasons why Ḥanafīs do not accept the death penalty for a female apostate, namely a clear narration on the subject from Ibn ‘Abbās and ḥadīths stating women are not to be killed. However, al-Jaṣṣāṣ is here explaining the underlying legal philosophy behind this distinction, not the more fundamental scriptural basis.
This discussion clearly illustrates the reasoning the jurists employed in explaining the punishment for apostasy. Al-Sarakhsī’s discussion in the section Brown quotes is effectively a restatement of the above explanation of al-Jaṣṣāṣ, as we will demonstrate in the next section.
The same underlying philosophy can be found in other parts of al-Sarakhsī’s discussion on apostasy. For example, while explaining why according to Ḥanafīs the Muslim relatives of an apostate inherit his wealth even though a Muslim does not inherit from a non-Muslim, al-Sarakhsī says: “Apostasy is death, as by it he becomes a Ḥarbī, and the people of Ḥarb in respect to Muslims are like the dead…” [16] In other words, the Muslim relatives can be considered his heirs because his death is legally considered to have occurred at the moment he apostatised not when the actual punishment is carried out.
In explaining further, he says: “Just as apostasy eliminates his ownership [of what he had in his possession], it eliminates the sanctity [of his blood].” [17] He further says: “By his apostasy, he [automatically] becomes a Ḥarbī, and this is why he is killed. The Ḥarbī compelled under our control, like prisoners, his treatment is suspended. [In the case of the prisoner], his fate is suspended between putting into slavery, execution or freeing; while [in the case of the apostate] it is [suspended] between execution and accepting Islām.” [18] He further states: “We treat the apostate like a Ḥarbī who has no amān (amnesty).” [19] From these statements, there can be no doubt as to what al-Sarakhsī’s underlying philosophy was for fixing the death penalty for apostasy.
This understanding also explains why an apostate who turns to another religion is not considered to be a member of that religion. In al-Aṣl, the question of whether an apostate’s slaughtered meat is ḥalāl is entertained. The answer is “no” even if the apostate identifies as a “Christian”, “because he is not equal to a Jew or Christian – don’t you see that that he is not left to remain on his religion until he accepts Islām or is executed?” [20] Al-Jaṣṣāṣ explains: “[The apostate] is a disbeliever that is not a Kitābī (Jew or Christian), as he is not accepted to [have turned to] the religion to which he turned.” [21] And al-Sarakhsī says: “After apostasy, [the individual] is not accepted as being on [the faith] that he believes.” [22] An apostate, therefore, holds a particular legal standing in the Islāmic society. This fundamental characterisation of the apostate is largely overlooked in Brown’s selective reading of al-Sarakhsī.
Al-Sarakhsī’s Explanation of why Female Apostates are not Executed
Now we turn to the section of al-Sarakhsī’s Mabsūṭ Brown referred to. It is important to realise that in this section, al-Sarakhsī is discussing, much like al-Jaṣṣāṣ above, why female apostates are not killed in the Ḥanafī madhhab but male apostates are. He is engaging in a polemic with al-Shāfi‘ī who states both the male and female apostates are executed. Let us first look at what al-Sarakhsī says in this passage before turning to Brown’s construal of it.
The meaning in [not executing a female apostate] is that she is a disbeliever (kāfir), so is not killed just like an original female disbeliever. This is because execution is not recompense for the apostasy [alone] but is necessitated by consideration of persisting on disbelief. Don’t you see that if [the apostate] was to become Muslim, [the punishment] will be dropped due to the absence of persistence, while that which is deserving as a recompense is not dropped by repenting, like the ḥudūd? – because once its cause is established with the ruler, it is not dropped by repenting…
This is [further] explained by [the fact] that changing the religion as well as an original state of disbelief are from the greatest of offences. However, they [i.e. all offences] are between the person and his Maker. Thus, [as a default], punishment of them is delayed to the Abode of Recompense. That which is brought forward to this world are policies legislated for interests that apply to all people, like Qiṣāṣ to save lives, the ḥadd of zinā to protect lineages and partners, the ḥadd of theft to protect property, the ḥadd of slander to protect honours, the ḥadd of drinking wine to protect intellects.
By persisting on disbelief, he becomes a Muḥarib to Muslims, so is killed to ward off this state of being a Muḥārib…[But] since it is established that execution is by consideration of the state of being a Muḥārib, and a woman does not have the right constitution for such a state, she is not killed in an original state of disbelief nor in an oncoming state of disbelief. [23]
This is [further] explained by [the fact] that changing the religion as well as an original state of disbelief are from the greatest of offences. However, they [i.e. all offences] are between the person and his Maker. Thus, [as a default], punishment of them is delayed to the Abode of Recompense. That which is brought forward to this world are policies legislated for interests that apply to all people, like Qiṣāṣ to save lives, the ḥadd of zinā to protect lineages and partners, the ḥadd of theft to protect property, the ḥadd of slander to protect honours, the ḥadd of drinking wine to protect intellects.
By persisting on disbelief, he becomes a Muḥarib to Muslims, so is killed to ward off this state of being a Muḥārib…[But] since it is established that execution is by consideration of the state of being a Muḥārib, and a woman does not have the right constitution for such a state, she is not killed in an original state of disbelief nor in an oncoming state of disbelief. [23]
Al-Sarakhsī describes the punishment for all religious offences as being postponed to the afterlife, although some are accounted for in this world as it provides general benefits. Here he is referring to a general philosophy for all Islāmic punishments, and not just apostasy (as Brown asserts). Only after talking about the general philosophy of all Islāmic punishments does al-Sarakhsī narrow down on apostasy specifically.
It is also important to understand the nature of al-Sarakhsī’s discourse in this passage. He is not discussing the Islāmic ruling for punishing apostates, whether it is a fixed or a discretionary punishment, but is rather looking at the underlying philosophy of rulings that have already been established (i.e. that male apostates who insist on disbelief are executed while female apostates are not). The purpose of this exercise in this case is to provide a juristic framework in which to understand why Ḥanafīs make a distinction between a male and female apostate. Philosophical discussions such as these are not normally meant to inform how or when the ruling is carried out. Just as al-Sarakhsī’s description of all ḥudūd as “policies set down in Sharī‘ah for the common good” does not in any way change the nature of ḥudūd rulings, his philosophical discussion here on apostasy does not in any way impact on the nature of the ruling itself.
Let us now turn to Dr Brown’s explanation to demonstrate why his analysis falls short based on the detailed explanation above.
Brown states:
“Apostasy differed from other serious crimes, such as fornication and murder, because on its own it did not transgress the rights of others. As a result, unlike other crimes, if someone who had left Islam decided to recant, the crime of apostasy vanished and no punishment followed. For a crime like murder, on the other hand, even if the perpetrator deeply regretted his act, the harm had been done and the victim and their family had a right to justice.”
Brown continues:
“Leaving Islam and embracing unbelief are great offenses, said the famous Hanafi jurist al-Sarakhsī (d. circa 1096 CE). “But they are between the human being (lit. the slave) and his Lord,” he added. Their punishment lies in the Hereafter.””
Brown continues:
““What punishments there are here in this world [for apostasy],” he continued, “are policies set down for the common good of human beings (siyāsāt mashrūʿa li-maṣāliḥ taʿūdu ilā al-ʿibād).””
“That which is brought forward to this world are policies legislated for interests that apply to all people, like Qiṣāṣ to save lives, the ḥadd of zinā to protect lineages and partners, the ḥadd of theft to protect property, the ḥadd of slander to protect honours, the ḥadd of drinking wine to protect intellects.”
Brown continues:
“Someone who repeatedly and insistently proclaimed their apostasy from Islam was akin to a violent criminal threatening public safety, al-Sarakhsī explained.”
Brown continues:
“The common good that apostasy threatened was the Shariah itself and the rights that it pledged to protect for all its subjects, Muslim or not: rights to physical integrity, property, religion, reason, family and honor (ʿirḍ).”
Brown continues:
“The word that al-Sarakhsī used to indicate ‘policy,’ siyāsa, is crucial for understanding the functioning of Islamic law in general and issues like apostasy in particular. Siyāsa can be translated as politics, governance, administrative law and even criminal law. Its functions varied, but what unified them is that, while most of Islamic law was applied by independent Muslim judges (in fact, it was jealously guarded by them in part out of fear of political abuse), siyāsa fell under the purview of the ruler/political authority… According to al-Sarakhsī and many other Muslim legal theorists, this is where the topic of apostasy belonged. Siyāsa was still very much part of the Shariah, but it was applied by the temporal ruler, not the Muslim scholars/judges (though, on issues like criminal law, Muslim scholars formulated much of the law that the political authorities applied and they were almost always present in the criminal courts).”
Final Remarks
We do not have to bend over backwards to try to accommodate western liberal standards of morality. The simple fact is that Islām accepts “freedom of religion” before a person converts to Islām. This is what the verse, “There is no compulsion in religion,” refers to. A disbeliever who has never been a Muslim cannot be forced into Islām. But once a sane adult of their own volition and choice becomes a Muslim, the Islāmic judicial system will force them to remain Muslim – they no longer have the freedom to (openly) leave the religion within the jurisdiction of Islam. For a Muslim who believes in God’s word and His final guidance to Muḥammad, the fact that this is well-supported in the Prophet’s ḥadīths and the example of his companions is sufficient a reason to accept it. A person with insight and faith, who probes a little, will also be able to see the rationality, justice and mercy in this ruling.
There is little doubt that modernist and deformist ideas that originated primarily in colonial India and Egypt in the latter half of the nineteenth century have heavily influenced Muslim thought in recent times. The fact that some scholarly individuals in the recent past have opposed the punishment for apostasy does not overturn the earlier consensus, nor the clear evidence for it in the example and words of the Prophet and his companions.
In the end, we hope that at the minimum, Dr Brown will correct the misuse of al-Sarakhsī. It is clear that al-Sarakhsī did not believe the punishment for apostasy was a discretionary one that is left to the judgement of the ruler. Al-Sarakhsī believed the death penalty was a fixed legal punishment that applied to adult male apostates who refused to turn back to the religion. It would be a misconstrual of what he said to say otherwise.
For a previous article discussing classical views on apostasy and a comparison of the nation state model, please click here.
Endnotes:
[1] yaqeeninstitute.org/en/jonathan-brown/apostasy
[2] For example, his use of the case of ‘Ubaydullāh ibn Jaḥsh. Assuming Ibn Jaḥsh’s story (that he converted to Christianity from Islām) is true, Ibn Jaḥsh was in Abyssinia and out of the jurisdiction of the Prophet in Madīnah. How was the Prophet to enforce punishment on him? Punishments are not enforceable outside of the jurisdiction of Islām.
The ḥadīth from al-Bukhārī that Brown refers to, regarding the man who broke his pledge, does not explicitly state that he left Islām. It may be that he broke the part of the pledge that meant he had to remain in Madīnah. Even if he did leave Islām, once he left Madīnah, he was no longer under the jurisdiction of the Muslims and Islām and hence punishment could not be enforced on him.
On Brown’s mistaken use of ‘Umar ibn al-Khaṭṭāb and ‘Umar ibn ‘Abd al-‘Azīz – who both believed and practised the death penalty for apostasy – see our previous piece here: theislamiclens.wordpress.com/2015/12/10/comments-on-classical-islamic-views-on-the-punishment-for-apostasy/.
[3] We realise that Brown adapts his discussion on Sarakhsī from Ramon Harvey. To some extent, therefore, this piece can also be viewed as a critique of the latter’s construal of al-Sarakhsī’s position also.
[4] Note, a Muslim who enters into land governed by Ḥarbīs, and they perceive him to be non-threatening, a state of “amān” (amnesty) is automatically contracted, and it becomes impermissible for the Muslim to take their lives or wealth (without permission). This is agreed upon by all classical jurists.
[5] al-Mabsūṭ, 10:98
[6] Sharḥ Mukhtaṣar al-Taḥāwī, 6:113
[7] Fatḥ al-Bārī, Dārus Salām, 12:251
[8] Sharḥ Mushkil al-Ᾱthār, 7:306, Sharḥ Mukhtaṣar al-Taḥāwī, 6:122, al-Mabsūṭ, 10:110, Majmū‘ah Rasā’il Ibn ‘Ᾱbidīn, 1: 319
[9] al-Aṣl, Dār Ibn Ḥazm, 7:492
[10] Ṣaḥīḥ al-Bukhārī , 6923
[11] ibid.
[12] Sharḥ al-Siyar al-Kabīr, Dārul Kutub al-‘Ilmiyyah, 5:166
[13] Majmū‘ah Rasā’il Ibn ‘Ᾱbidīn, 1:318
[14] Majmū‘ah Rasā’il Ibn ‘Ᾱbidīn, 1:319
[15] Sharḥ Mukhtaṣar al-Ṭaḥāwī, 6:122
[16] al-Mabsūṭ, 10:100
[17] ibid. 10:101
[18] ibid. 10:106
[19] ibid. 10:111
[20] al-Aṣl, 7:495
[21] Sharḥ Mukhtaṣar al-Ṭaḥāwī, 6:116
[22] al-Mabsūṭ, 10:110
[23] al-Mabsūṭ, 10:110
Taken from HERE