By SYED IQBAL ZAHEER
The Islamic legal system has been protected from disintegrating in the way many other religious legal systems have disintegrated, in the way the classical Roman Law disintegrated, and as the neo-Roman empire’s Law is disintegrating in our times. This robustness of the Shariah derives from a cogent and logical system of checks and balances that is not put off by way of mere allegations and externally influenced desires, howsoever humanitarian, against any of its legal measures, the most famous of which would be the ruling of death penalty for the apostate. Presented hereunder is a brief, but significant, analysis of this issue in its better perceived context.
An article is being clicked around on the Net as a goodly one (for some, a droll), entitled, “Islam and Contemporary Muslims: Apostasy – A Crime or an Exercise in Free Will.” (Written by Indian American Dr. Aslam Abdullah) But, in effect, it happens to be an exercise in vain.
Every discipline has its experts. Islamic law is just one such discipline. Does a legal expert have a right to express his opinion on major issues in Islam, that the rest are bound to accept? Of course not. Or, has a legal authority the same right? Once again, not.
Why not, when authorities in other systems of law, religious and secular, are much respected for their opinions? After all, there are legal experts in British Law, authorities in Judaic Law, and so on. After all, isn’t our age that of experts, teeming in millions?
Well, that is because other systems of law are meant to serve this earthly life; whereas Islamic laws serve the life of the Next world first, and needs of this world next – if we have to differentiate. They decide the future of a man, whether he will enter Paradise or Hellfire. In other systems of law, a man is responsible to an earthly authority; but in the Islamic system he is answerable to God. Therefore, mere ‘legal experts’ or ‘legal authorities’ will not be allowed any say in the divine law. They will not be allowed to play with lives of people in this or the Next world. So, who is allowed in Islam to express an opinion in legal issues of importance? The answer is: it is an ‘authority in legal matters.’
Now, what is the difference between a ‘legal authority’ and ‘an authority in legal matters?’ The answer is that an ‘authority in Islamic legal matters’ (known as a Mujtahid) is he whose opinion cannot be challenged and shown to be wrong, by anyone, at any time, in any place. It is only a person of such caliber who is allowed to express a legal opinion that may be given some credence. (Our use of the word ‘express’ and not ‘have,’ may be noted. Everyone has the right to ‘have’ opinions. But not everyone is allowed to ‘express’ his opinion. To be sure, in the light of a Qur’anic verse which said (17: 36): “… indeed, the hearing, the sight, and the heart – all of them shall be questioned thereof” – a good Muslim would not like to have an opinion which does not agree with the Shari`ah. In other words, he has no personal opinions.
So, is it to be understood that an authority in legal matters can lay down the Law in Islam? Well, when did we say that? We said that such a person has the right to express his opinion. Yet, his opinion is an opinion. It is not the Law in Islam. Why not? It is because no single individual, apart from the Prophet, will be allowed to say who enters Paradise, and who Hellfire. This right cannot be conferred upon an individual. It is in the light of the opinion of a ‘body of authorities in law’ that a person can be told about an act of his: “You are on the mark,” or, “You are sinning.”
The gradation then, so far as opinions are concerned, is as follows:
1. The laity
3. Eminent scholars
4. Specialists, experts
5. Authorities (in various disciplines) [the Mujtahids]
6. A body of authorities (Fiqh Schools in legal matters, Muhaddithin in Hadith)
7. The four Caliphs
8. The Four Schools of Law (Ijma` of the Fiqh schools)
9. The body of Companions (Ijma` al-Sahabah)
10. Ahadith Mutawatirah
12. The Qur’an
In theory, the opinion of the four rightly-guided caliphs prevails over the four schools of law, but their unanimous opinions are few and, therefore, in practice, it is the consensus of the four schools that is left to operate; and it is from the sixth level onwards that legal opinions in major matters (Usul) matter.
These are the principles that have kept the Islamic legal system from disintegrating in the way many other religious legal systems have disintegrated, in the way the classical Roman Law disintegrated, and as the neo-Roman empire’s Law is disintegrating in our times. According to the law of the last mentioned, for example, an individual living 5000 km away is a terrorist because he is so declared by a foreign country, and therefore, taking him out without trial by that foreign country is legal, while, on the other hand, a state which terrorizes populations in distant lands by bombing them, entering by force waving white flags, imprisoning kids, sodomizing them, ruining towns beyond recognition and sending millions fleeing for their lives, is not a terrorist state. According to this disintegrating law, if a man embezzles money, he deserved to be behind bars, but when a hundred banks do it, declaring themselves guardians of the financial system one day, and bankrupt the next, they are rewarded with bail-out printed money in hundreds of billions, handed over as free gift. According to this disintegrating legal system, a man to man sexual relationship, a man to ten men such relationship, a man to dozens of men and dozens of women sexual relationship is perfectly legal, but a man having two wives is such a crime that you enter the country as an immigrant on condition that you sign a statement saying you will not take two wives.
Going back to where we started, apart from the fact that the article is not simply an exercise in vain, but a sin, the whole of it is constructed illogically, if we consider Islamic logic as the instrument to employ.
Does Islam have its own logic? The answer is, yes. Look into the syllabi, for example, of Deoband or Nadwah, you find books such as Tayseer al-Mantiq and others. These are books on Islamic logic, taught at various levels. It is because of emphasis on Mantiq, that you may – if you so will – find a variety of defects – real or imaginary – in the Madrasah scholar but rarely that they are illogical.
In comparison, most averagely educated men and women of our times remain illogical the rest of their lives after leaving colleges, where they are given systematic lessons in illogical reasoning. Sadly, most non-Muslims seem to be illogical only in religious matters, but not so in other affairs of life; while Muslims seem to be illogical in most of their affairs, especially the college-educated class.
Scientists cite the following as an example of logical construction of the common people: “God is love. Love is blind. John is blind. Therefore, John is God.” May be in actual practice, the logical error is not so blunt and not in such short steps; but, many people do think in these steps.
Let us give a simple example to show the difference between common and Islamic logic, although, it must be admitted, such examples, nor such deductions, are contained in Islamic logic text books: A man says, “I have served my parents, the way they served me. They looked after me when I lay in the bed as an infant, too weak. I look after them now as they lie in the bed as infants, too weak in their old age. Therefore, I have offered the service they offered, and we are square: one to one.” To a modern man, this sounds reasonable. But the Islamic answer to such a logical argument would be, “No, you are not square with your parents. They served you when you lay in bed as an infant, while they were hoping and praying that you will live long; whereas, you serve your parents as they lie in the bed, hoping (secretly) that they die. So, it is not the case of one to one.”
In his book, God Delusion, Richard Dawkins gives several examples from the Bible and other religious literatures, of unscientific statements, and then concludes that all religions are illogical and false, and so God is a product of delusion. But he doesn’t cite a single verse from the Qur’an to demonstrate how illogical the Qur’an is. To him, if all religious books other than the Qur’an are wrong, the Qur’an too is wrong; and, in the next logical step, all religions are wrong!
To give another example: when a rejecter of Hadith was asked why he rejects Hadith, he answered: “Look, I was first in Jamat-e-Islami, even conducting Dars al-Qur’an. Then I lost faith in the Jamat and left them. Next I went into Tabligh, and remained a long while with them. But ultimately, I was disillusioned of that Jama`ah also. So, I came out of it. Now, I don’t belong to any group. I follow my own reason and logic, which has led me to the rejection of Hadith.”
We can see in this statement, that the man provides good evidence for a psychological problem he suffers (viz., inconsistency), but no reason why he rejects the Hadith, which was what he was asked. It is not only that he is illogical, but the reasonably educated men in the audience too are, who shake their heads in agreement. They think they got the answer to their question!
If the students in Islamic Madrasah are not trying hard to pass out with passing marks, but show sincere interest in studies, their teachers train them well. In consequence, they are strong in logic. We can pick up an example from Thanwi. Once, he chided, in a friendly manner, a Shi`ah scholar while he was making ablution: “Why do you go against us in everything you do? Why don’t you wash your feet?” [The Shi`ah Qur’an reads: “wa arjulikum,” instead of the standard “arjulakum” and fish out the meaning as, “wipe your feet,” instead of, “wash your feet.”]
The whole ayah says, “Believers! When you prepare for Prayer, wash your face, arms up to the elbows, wipe your heads and (wash) your feet up to the ankles. However, if you are in a state of major impurity, then wash yourselves (wholly). Yet, were you to be ill, or on a journey, or one of you has come from the privy (requiring minor ablution) or you have been in contact with women (requiring major ablution), but you do not find water, then resort to clean dust and wipe your faces and hands therewith. Allah does not desire to cause inconveniences to you. Rather, He wishes to purify you and complete His favors upon you, haply you will give thanks.” (5: 5)
The Shi`ah scholar was quick to answer: “Look. The ayah contains the commandment pertaining both to wudu (ablution) as well as tayammum (wiping). Does it not? In the second half of the verse, Allah ordered two organs to be wiped: face and hands. Right? This demonstrates that Allah attached importance to the face and hands. Accordingly, He ordered in the earlier part of the verse that if water is available, then, you may ‘wash’ two important organs (face and hands) and ‘wipe’ two organs of less importance (head and feet). Doesn’t that sound reasonable and logical?”
Of course, it sounds reasonable and logical; but only to the untrained. To a trained scholar, it is illogical reasoning. Why? Because, the said scholar first supposed it that the feet should be wiped and not washed, and then worked out the wisdom behind it. But, that is not a logical construction. He must first ‘prove it’ that the feet must be wiped and not washed. After he has proven that the feet may only be wiped, then alone can he state the wisdom (of his contrivance). To put it differently: the feet are under question, whether they should be washed or wiped. But he pre-supposed it that they must be wiped, and then defended his interpretation by stating the wisdom behind it. (There are other reasons to demonstrate why fishing out such a meaning is incorrect, but this is not the subject at the moment).
We have deliberated a little on this topic in order that our readers learn how to evaluate an Islamic article. Many of the type we are discussing at the moment are being clicked around, round the clock, but which must be ignored. Now, let us look into the article in question from the point of view of logic and scholarship. The author maintains against:
1. The Qur’an,
2. The Sunnah,
3. The Ijma` of the Companions, and,
4. The Ijma` of the four schools of Fiqh that the crime of apostasy in Islam, cannot, should not, and has not
Suddenly becoming more learned than 10,000 learned people of the golden age of Islam, (he is only one of the millions of experts), he writes at the start of the article:
“Every now and then, when a court in a Muslim country issues a death sentence against someone who decided to switch her or his faith, the issue of apostasy is deliberated among Muslims for or against the decision.”
Note the errors:
- In actual fact, the issue does not happen every now and then.
- Can he cite the date last time a Sunni court issued the verdict of death anywhere in the world? He might note our words carefully: a court issuing the verdict of death, not individuals or groups pronouncing their opinions.
- Can he cite when was it the last time that the issue was ‘deliberated’ by legal authorities, who alone can deliberate the issue?
- Can he cite a case where a woman switched her faith and was convicted in a court?
Perhaps influenced by the frenzied Western drive towards ‘equality of sexes’, the writer includes women by saying, ‘her,’ unaware that according to the leading school of Fiqh, the Ahnaf, a woman should not be executed for switching from Islamic faith to another.
“Depriving a human being of the right to live and breathe, a right every human being is granted by the divine as an act of mercy, is a very serious matter and if that right is taken away in the name of God in order to please Him, then it becomes even more serious.”
Beautiful words for many, but hollow. The following are the logical errors:
- God can give life, but should not issue a command to take it away!
- God contradicts Himself by saying in the Qur’an, “Kill them (the Arab pagans), wherever you find them,” (2: 191), and, “Fight and slay the pagans, all of them” (9: 36), forgetting that He has already granted them ‘the right to live and breathe.’ (How accurate: have you witnessed a corpse breathing?)
- In the light of the following verse dealing with highway robbers, “(What can be their reward but that) they should be killed?” (5: 34), the writer perhaps thinks that highway robbery is a more serious crime than rebellion against Allah.
- The writer’s statement about ‘the right to live and breathe’ contradicts another of Allah’s command dealing with the very subject he has taken up: apostasy. He ordered the Israelites who had committed apostasy: “So, kill (from among) yourselves, (those who worshipped the cow).” [2: 54]
He writes further:
“Throughout human history, repeated examples are found in abundance to show that people were killed in the name of God for exercising their inalienable and inherent freedom to choose ideas that appealed to them most.”
We may comment:
- What happened in past history has nothing to do with a Divine ordinance.
- The killing he refers to happened in Christianity, never in Islam. So why does he cite it here?
- If tomorrow morning you exercised your ‘inalienable and inherent freedom to choose ideas that appeal to you most,’ and publicly expressed the opinion in front of the UNO headquarters in Washington, that the homosexual laws are dishonorable, you will be locked up within 30 minutes.
The following is another paragraph of the article:
“Why does He (God) not execute His will directly, why does He rely on a human agency to kill those who have differences of opinions on how to relate with God and His attributes.
Can we ask: Should God be doing the killing Himself? Should He have killed the Fatimid caliph Hakim, Hulagu Khan, Hitler, and many others, and should we await Bush, Blair and Bashshar a similar treatment?
If our readers’ patience is not up, we may cite another example. He argues that killing of an apostate goes against a verse of the Qur’an. He quotes: “Let there be no compulsion in the way of life: ..” (2: 256). Firstly, the translation is wrong (but we have to be liberal with someone who does not know Arabic, or just the manageable kind), secondly, this is faulty logic. The Qur’anic verse says: “There is no compulsion in religion.”
And to remove what he sees as a contradiction: The ayah is allowing people to accept or reject this or that religion by free will; while the Prophet’s ordinance of execution refers to a man who was a Muslim, living among Muslims, and then renounced his faith. The two are different issues. An apostate:
- Is a criminal in divine sight. Allah said (2: 217), “But whosoever turns back from his religion, and dies in the state of unbelief, it is such whose works will go waste both in this life as well as in the Next. These are companions of the Fire. They shall abide in it forever.”
- Is a state criminal: he will pass state secrets to its enemies.
- Is to be continuously kept under watch, and so, is a burden on finance.
- Is a social criminal: his wife is to be separated from him, his children will not inherit his wealth, his friends begin to suspect everyone and ask: who could be next? He created social upheaval in a society whose hallmark is peace.
- Is a pain in the neck for his friends. How should they treat a former companion who is now a companion of the Fire?
But, it appears the writer has another religion: the UNO. He writes:
“In the above two verses God, has given freedoms that the world recognized in the form of Human rights declaration only in 1948. The United Nations Commission on Human Rights observed that the freedom to ‘have or to adopt’ a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views.”
Well, the UNO might be an authority for the writer, equal to the authority of the Qur’an, Sunnah,consensus of the Companions etc. That is his choice. After all, “There is no compulsion in religion.” As for us, a body which ‘legalizes’ theft and lies, (to mention just one crime) deserves little respect. It is the same UNO, which, in 1948 stole Palestinian lands, where they were living for last 10,000 years, and gave them away to the European Jews (the Ashkenazi) who never lived there at any time in their entire history, but who claimed that it was their homeland. (Although, theft, dishonesty and hypocrisy apart, we do believe the body’s non-political wings should remain active, as long as Muslims remain inactive).
Rest of the article is in the same vein, same kind of logic, same inconsistency and same lack of knowledge, maintaining a good distance from any learning.
It turns out that the present article is a washed down version of a chapter in Dr. Mohammad Hashim Kamali’s book, “Freedom of Expression in Islam,” (1997) and that of M. E. Subhani, “Apostasy in Islam.” (New Delhi, 2005). To take the Master Builder, we may say at the start that it is unfortunate that Kamali wrote the article in question maintaining that death for apostasy is not an Islamic ordinance. Those opposed to Islamic ruling of death for the apostate, herald it as a “well-researched” document, “from an expert” in the field. But, regretfully, closer examination reveals that, despite 55 footnotes covering the 17-page article, it is far from being well-researched, and throws a dark shadow on expertise.
There are several major problems:
As evidence, Dr. Kamali cites the names of Sufyan al-Thawri (d. 161/ 772), Ibrahim al-Nakha`i (d. 95/ 713), Ibn Taymiyyah, Shawkani, and Rashid Rida Misri, as those who held opinions that death is not the penalty for apostasy, and that Shamsuddin al-Sarakhsi (the Hanafiyy) was ambiguous about it. This is the most unfortunate part of Dr. Kamali’s article. It is unfortunate for the fact that someone who was a professor of Law at International Islamic University Malaysia (IIUM), and now heads several world organizations, should have been accused of lack of integrity. (A harsher word was used several years ago by a critic, but we are, sadly, not so angry).
Abu Yusuf notes in his Kitab al-Kharaj (398) about Nakha`i that he suggested death to the apostate after respite for repentance fails. In fact, according to Al-Mughni, Nakha`i took the hard line against a female apostate suggesting that she too should be killed. On what basis did Dr. Kamali make his claim about Nakha`i?
Sufyan Thawri too, as reported in Al-Mughni, ruled that an apostate may be given mere three days to repent. If he would not, he may be executed.
Sarakhsi, once again, was never of two minds, as Dr. Kamali would lead us to believe. Rather, he held the opinion of death for apostasy which he explicitly or implicitly mentioned in his Al-Mabsutat several places. Surprisingly (at least for Dr. Kamali), Sarakhsi maintained that if a Murtaddescaped to a non-Muslim land, he should be treated as dead, and his wealth and property distributed among the inheritors.
Similarly, citing Shawkani’s name as one of those who were opposed to the death penalty seems quite odd, if not a blunder; for, Shawkani has at several places in his writings, as well as in his Fath al-Qadir (e.g. 1/457), expressed penalty of death for an apostate as a standard opinion.
Quoting Rashid Rida Misri out of context also leaves one wondering whether the question of integrity that had been raised in reference to Kamali was justified. Rashid Rida was clearly with the Fiqh bodies when dealing with the question. He wrote in his Tafsir al-Manar: “As for apostasy, there are rules that may be referred to in Fiqh books (2: 217),” and, we all know what the Fiqhbooks have to say: death. Further, at least in one issue of his magazine Al-Manar, he re-confirmed this opinion. (He was a rationalist, but not an apologist).
But the most stunning is Dr. Kamali’s citation of Ibn Taymiyyah’s statement from his Sarim al-Maslul that an apostate may be spared. Ibn Taymiyyah said no such thing in this book, nor in hisSiyasah al-Shar`iyya. To be sure, Ibn Taymiyyah goes a step further in stating the punishment for insulting the Prophet (saws) as death, whether it is a Muslim or non-Muslim, since, if he was a Muslim, he became an apostate by doing so, and deserves death more than an unbelieving abuser.
It is hard to believe that the above errors were inadvertent.
The difficulty in considering Kamali’s article as a piece of research is that he quotes the opinions only of those of the modern times who agree with his personal opinion that an apostate should not be killed, ignoring those who did not agree with him. A researcher shows both sides of the coin.
But, a more serious failure, unbefitting a research scholar is that he takes the pain to quote scholars who do not matter at all when such important matters are involved, viz. Mahmasani, Selim el-Awa, Ayatollah Mutahhari and others, and completely ignores those who matter: the Companions, their followers and the Fuqaha’ of the first four hundred years, e.g. Abu Bakr,`Umar, `Uthman, `Ali, Abu Musa al-Ash`ari, Mu`adh b. Jabal, Hasan al-Basri, Mak-hul, Hammad, Al-Layth, Awza`i, Is-haq b. Rahwayh, Abu Haneefa, Malik, Ahmad b. Hanbal, Shafe`i, Ta’us, `Ubayd b. `Umayr, Ibn abi Salamah, `Ataa’, Zuhri, to name just a few, who maintained that an apostate should be put to death.
Consider. If not for the second ever consensus of the Companions over death for the apostate, which led to the famous Riddah battles, would we be here as Muslims discussing the issue?
To quote those who were mere pebbles before mountains in knowledge, understanding, wisdom, practice, renunciation, and piety of the highest order, is cruel.
Yet, Kamali’s article attained world fame (why not, when the million experts, Muslim and non-Muslim, are not sleeping), and many lesser (modern-day) scholars and non-scholars in hundreds fell into the trap and began to quote Thawri, Nakha`i, Sarakhsi, and Ibn Taymiyyah, without referring to original sources, assuming that the original sources must have said what was being attributed to them.
The author of the article under discussion, “Islam and Contemporary Muslims: Apostasy – A Crime or an Exercise in Free Will,” seems to be a victim too. He built upon the original unfortunate article, by adding names of the modern-day West-stung, apologists as those opposed to death for apostasy. In an after-thought note, he displays the names of several dozens, (who he assumes are authorities), such as: Dr. Chandra Muzaffar (political scientist?), Jeffrey Lang (new Muslim), Mirza A. Beg (Geologist), Abidullah Ghazi (school text books), Ziauddin Sardar (freelance, free writer), Ruqaiyyah Waris Maqsood, Adil Salahi (journalist), Tariq Ramadan (political writer, religious apologist), Dr. Ingrid Mattson, Dr. Asma Afsaruddin, Mike Mohamed Ghouse (founder, ‘Pluralism’), Riaz Hasan (director ‘Outreach’), Dr. S. M. Ghazanfar (Economist), Muhammad Ali Jawhar (politician, long dead), Ayatullah Murtadha Mutahhari (Shi`ee), Grand Ayatollah Hossein-Ali Montazeri (Shi`ee), Asghar Ali Engineer (Isma`li Bohri), and of course, the thieving body. What a list of Law-givers!