Freedom of Religion and the Question of Apostasy in Islam1
by Professor Abdulaziz Sachedina

     
The Qur’an deals not only with individual religious freedom, but also with the creation of a just social order. Under certain conditions the Qur’an gives the state, as the representative of society, the power to control "discord on earth," a general state of lawlessness created by taking up arms against the established Islamic order.2 The eradication of corruption on earth, taken in the light of the Qur’anic principle of instituting good and preventing evil, is a basic moral duty to protect the well-being of the community. In the Islamic polity, where religion is not divorced from the public agenda, leaving adherents of competing doctrines free to pursue their beliefs engenders an inherent tension between religious communities that has to be resolved through state regulation.

The "millet system" in the Muslim world provided the pre-modern paradigm of a religiously pluralistic society by granting each religious community an official status and a substantial measure of self-government. The system based on the millet, which means a "religiously defined people"3 was a "group rights model"4 that was defined in terms of a communitarian identity and hence did not recognize any principle of individual autonomy in matters of religion.
And, this communitarian identity was not restricted to identifying non-Muslim dhimmis,5 the millet's self-governing status allowed it to base its sovereignty on the orthodox creed officially instituted by the millet leadership. Under the Ottoman administration this group status entailed some degree of state control over religious identification, overseen by the administrative officer responsible to the state for the religious community. In addition, the system allowed the enforcement of religious orthodoxy under the state patronage, leaving no scope for individual dissent, political or religious. Every episode of the individual exercise of freedom of conscience was seen as a deviation from the accepted orthodoxy maintained and enforced by the socio-religious order.

Although the Qur’anic respect for the founders of the other Abrahamic religions created a relatively more tolerant attitude among Muslims, the policies of discrimination against the millets in the Muslim world remained in force because the Shari‘a never accepted the equality of believers and non-believers. Contrary to the pluralistic spirit of the Qur’an, Muslim jurists encouraged a state-sponsored institutionalization of the inferiority of non-Muslims, including the monotheist ahl al-dhimma, as necessary for the well-being of the Muslim public order. For legal scholars, unbelievers had willfully spurned the offer of Islam. Hence, their inferiority was not imposed but freely chosen

It was precisely this kind of evaluation of the religious "other" that led to the contemptuous attitude towards non-Muslim minorities in Muslim societies. But this negative attitude, arising from the spirit of enforced uniformity in the community, also extended to fellow believers who failed to meet the criteria of pure faith, unsullied by the accretions and innovations that the ultrapious believed had corrupted the authentic Islam of the Prophet and his companions.6 The pious restoration of the faith meant intolerance toward individual freedom of conscience and hence the removal of the cornerstone of Qur’anic pluralism. "Heresy" (ilhad, that is, questioning the orthodox doctrinal position) and "apostasy" (irtidad, that is, changing one's socio-religious affiliation) were promulgated as punishable crimes in the Shari‘a. Given the Qur’an's endorsement of pluralism and individual autonomy and agency in matters of faith, one must wonder whether the Muslim penal code's provisions on apostasy lead to an enforced religiosity that runs counter to the letter and spirit of the Qur’an.7

Is Apostasy a Religious or Civil Offense in Islam?
Muslim jurists have not engaged in a conceptual investigation of the ethical-legal presuppositions of certain commandments in the Qur’an. For instance, the Qur’an assigns Muslim public order the obligation of controlling "discord on earth." This phrase is part of a long verse that prescribes the severest penalties for rebellion:



The punishment of those who fight against God and His Messenger, and hasten to do corruption, creating discord on earth: they shall be slaughtered, or crucified, or their hands and feet shall alternately be struck off, or they shall be banished from the land. This is degradation for them in this world; and in the world to come awaits them a mighty chastisement, except for those who repent before you lay your hands on them. (K. 5:33-34)

Eradication of corruption on earth is a moral commandment to protect the well-being of a community. But this need not contradict the freedom afforded to individual conscience in matters of faith. This essential distinction between the civil and moral is not only absent in the exegetical literature on the foregoing verse, but it is also lacking in the classical juridical corpus.

In Islam the distinction between the religious and the temporal or between the moral and civil is not de jure but de facto. The categorization of religiously ordained God-human (‘ibadat) and inter-human (mu‘amalat) relationships in Islamic sacred law, the Shari‘a, is perhaps the most explicit expression of the two realms of religious and temporal in human activity on earth. Whereas God-human relations are founded upon individual autonomy under the divine regulation, interhuman relations are within the jurisdiction of human institutions founded upon political consensus with the purpose of furthering justice and equity in society. The same distinction rules out the authority of the Muslim state to regulate religious matters except when the free exercise of religion for any individual is in danger.


That the Qur’an presents comprehensive commandments in which moral and civil are not always easy to distinguish is demonstrated by the equal gravity under civil law accorded to moral and religious transgressions by Muslim jurists. The conceptual distinction aside, Islamic law treats these transgressions as affecting not only humans, but also God. There is a sense in which both humans and God may have claims in the same infringement, even if the event seems to harm only one of them. Although punishment of crimes against religion are beyond human jurisdiction, the juridical body in Islam is empowered to impose sanctions only when it can be demonstrated beyond doubt that the grievous crime included an infringement of a human right (haqq adami = private claim). There are six transgressions that are treated as crimes against religion and society and for which the law prescribes the specific hadd ("well-defined”) punishments:

1. illicit sexual relations
2. slanderous allegations of unchastity
3. wine-drinking
4. theft
5. armed robbery
6. apostasy (irtidad)

The underlying principle in the penal code is that the punishment should fit the crime and the character of the offender, because the purpose of punishment is the prevention of any conduct that might undermine public order. The supreme duty of the Muslim ruler is to protect the public interest, function for which the law afforded him an overriding personal discretion to determine how the purposes of God might best be achieved in the community

Since criminal law in Islam was a system of private law that fell under the ratifying and enforcement powers of the established political regime, prosecutions for offenses like false accusation of unlawful intercourse or theft, crimes that offend against both God's will and just human relations, take place only if initiated by the victim, and the plaintiff must be present both at trial and the execution. In the case of unlawful intercourse the witness plays a crucial role. There must be four witnesses to the actual act of intercourse. Moreover, at the time of punishment, if the witnesses are not present (and, if the punishment is stoning, if they do not throw the first stones) the punishment is not carried out. If the thief returns the stolen object before an application for prosecution has been made, the prescribed punishment lapses; repentance for highway robbery before arrest causes the punishment to lapse; and if an offense is treated a misdemeanor (jinayat) and the complainant is willing to pardon, blood-money may be paid instead or the punishment remitted altogether. In the cases of offenses against religion that are not sanctioned by specific punishments --apostasy, for example (for which there is no definite punishment in the Qur’an) -- the effects of repentance are even more far-reaching.

The treatment of apostasy as an impingement on the right of God and humanity in Islam presents an interesting case of interdependency between the religious and civil in the laws that govern in the Muslim community.

To begin with, there is a fundamental problem in rendering the Arabic word irtidad as "apostasy." The term irtidad, meaning "rejection" or "turning away from," was historically applied to the battles that were fought against those Muslims who had refused to pay taxes to the Muslim political authority after the Prophet's death. Hence, the murtaddun were those who had rebelled against the established order. Compare this with the way the term apostasy is understood in Christianity, where it suggests historically an abandoning of exclusive and institutionalized religion for another.8 In this sense apostasy occurs when different religions compete with one another in one public arena. Irtidad, on the other hand, occurs within the communal order in the form of internal subversion, which is no longer merely a religious offense. I have dealt elsewhere with the problem of the legal definition of apostasy in Islamic jurisprudence.9 Here I am once again confronted with the complexity of the question of apostasy in Islam, especially in the light of consistent and obvious Qur’anic treatment of that offense as being beyond human jurisdiction. It is evident that the Qur’an supports full freedom of religion, not merely tolerance of religions other than Islam. The irtidad or ridda of the Qur’an is apparently a "turning away" from God and hence is punishable by God alone; in jurisprudence the irtidad, depending on its public manifestation and its adverse impact on the Muslim public order, denotes turning away from the community, in which case. The determination of the gravity of the offense is strictly under the jurisdiction of the legitimate Muslim public order. The extent of punishment depends on the civil interpretation of the act by the political and juridical authority.

Consequently, although classified as a capital offense (hudud crime) in the Islamic penal code, apostasy was and remains the only crime that present Muslim legal authorities with a serious dilemma. The verse of the Qur’an that provides the jurists with the original ruling unambiguously characterizes apostasy as a non-capital offense. The Qur’an says:


And, whosoever turns (yartadid) from his religion, and dies disbelieving - their works have failed in this world and the next; those are the inhabitants of the Fire; therein they shall dwell forever. (K. 2:217)


Clearly, the problem is that while the Qur’an favored an overall tolerance of religious pluralism, the social ethics delineated by the Muslim jurists regarded pluralism as a source of instability in the Muslim public order. The so-called wars of "apostasy" (ridda) under the first caliph Abu Bakr (d. 634 CE) in the aftermath of the Prophet's death in 632 CE served as a grave reminder to the jurists to provide measures that would deter disruptive activity in the community.

Moreover, in an Islamic context, the Muslim political authority, is solely responsible for determining that the act of ridda (as in the "rejection of" or "turning away from" the Muslim public order) is regarded as meriting certain punishment. The reason is that in the absence of the “church” and the “ecclesiastical body,” it is the responsibility of the civil authority to determine the ridda's criminality and take appropriate action to deal with it. Since its determination as ridda was restricted to the political authority required to protect the common good of the community, a number of Muslim jurists classified irtidad as part of the ta`zir ("chastisement," "deterrence") crimes that "infringe on private or community interests of the public order," and for which punishment is instituted by the legitimate political authority. Consequently, the burden is placed on the public authority to lay down rules that penalize all conduct that seems contrary to the public interest, social tranquility, or public order.10

Hence, civil considerations surrounding the question of sedition and civil strife have shaped the interpretation of the act of apostasy in Islam. The harsh treatment of apostates in Islamic law was promulgated without making an indispensable distinction between the Qur’anic doctrine of freedom of religion which insists that no human agency can negotiate an individual's spiritual destiny -- and legitimate concerns about the Muslim public order. As long as apostasy remains a private matter and does not disrupt the society at large, there is no particular punishment in the Qur’an. However, when it violates sanctity and impinges on the rights of Muslims to practice their belief, then it is treated as a physical aggression towards the faith. At that point it is no mere apostasy; it is, rather, treated as an act of sedition that causes discord and threatens the unity of Islamic community. It is only in this case that apostasy is punishable by the severest penalties, framed as self-defense against a violent rebellion against God and the Prophet, to be countered, in turn, with violence if necessary.

There is a self-evident problem in any Islamic criminalization of apostasy defined in the strict sense of public abandonment of an institutionalized religion for another; a mere expression of religious dissent against the established community, which the Qur’an grants as a basic individual right, cannot constitute a criminal act punishable in this world. The Muslim civil authority has the ultimate responsibility for using its discretionary power to assess the level of discord created by a public declaration of an apostasy and to lay down the appropriate measures to deal with it.

End Notes:
1 The article is based on Abdulaziz Sachedina, Islamic Roots of Democratic Pluralism (New York: Oxford University Press, 2001), pp. 96-101.

2 Abdulaziz Sachedina, "Justifications for Violence in Islam," War and Its Discontents: Pacifism and Quietism in the Abrahamic Traditions, ed. J. Patout Burns (Washington, D.C.: Georgetown University Press, 1996), pp. 122-160.
 
3 Benjamin Braude, "Foundation Myths of the Millet System," Christians and Jews in the Ottoman Empire: The Functioning of a Plural Society (New York: Holes & Meier Publishers, Inc., 1982), p. 69.
 
4 Will Kymlicka, "Two Models of Pluralism and Tolerance," Toleration: An Illusive Virtue, ed. David Heyd (Princeton: Princeton University Press, 1996), p. 82.

5 Braude, "Foundations...," Christians and Jews, pp. 69-72.

6 Sayyid Qutb, Fi zilal al-qur'an, Vol. 1, pp. 293-96 undertakes to justify the need for jihad, to reinstate the `original' Islam without the corrupt accretions introduced by the tyrannical order (al-nizam al-taghiya) and replace it with a just Islamic order. He does this in the context of the "No compulsion verse" (K. 2:257) which requires tolerance towards those who have not accepted the faith and which had been used by Muslim modernists as well as the orientalists to maintain the view that the obligation of jihad was in abeyance. For the modernist view on jihad see: Muhammad Sa‘id al-‘Ashmawi, "al-Jihad fi al-islam, in al-Islam al-siyasi (Cairo: Sina li-al-Nashr, 1987), pp. 95-109.
 
7 This question has been raised by a number of Muslim scholars in the recent decades, especially in the light of the basic individual right to freedom of religion. See: Muhammad Sa‘id al-‘Ashmawi, al-Shari‘at al-islamiyya wa al-qanun al-masri (Cairo: Maktaba Madbuli, 1988), pp. 73-90.

8 See the article "Apostasy" in The Encyclopedia of Religion, Vol. 1, p. 353ff. and fn. 20.

9 Abdulaziz Sachedina, "Freedom of Conscience and Religion in the Qur'an," in Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty, co-authored with David Little and John Kelsay (Columbia: Univ. of South Carolina Press, 1988), pp. 53-90.

10 Mansour, A. A., "Hudud Crimes," in The Islamic Criminal Justice System, ed. M. Cerif Bassiouni (New York: Oceana Publications, Inc., 1982), pp. 195-196




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