It used to be that the media (whether Muslim or non-Muslim) would cover Islam in reference to the well-known ‘three H’s’: hijab, halal and haram. It has now changed somewhat; now, the focus is on hijab, apostasy, shari’ah and hate (preachers of). Doubtlessly from the point of view of a religion that abjures intoxicants, this creates a rather unfortunate acronym.
On the second subject, apostasy, there has been a renewed interest, if a rather uninformed one. In the Washington Post last year, the Mufti of Egypt, Shaykh Dr Ali Gomma’, made his own point of view quite clear: the renunciation of Islam has dire spiritual consequences, but not necessarily many worldly ones. When one considers that the majority of ‘medieval sunni Muslim jurists (fuqaha) have considered riddah (commonly translated as ‘apostasy’), questions do arise. Has the Mufti, famous for his commitment to sunni orthodoxy become somewhat inventive? Or is the orthodox tradition (turath) of sunni Islam more complex than the media commonly supposes?
Catholic canon law details at least five different types of apostasy; perfidi (when a Christian relinquishes his faith for another one); ab ordini (when a cleric rejects the rules of the ecclesiastical life); monachatus (when one leaves the religious life); iteratio baptismatis (the repetition of baptism); and inobedienti (disobedience to a lawful authority).
A majority of Muslim jurists in the medieval period (and there were a minority of jurists who thought otherwise, which is where contemporary non-jurists such as Tariq Ramadan derive their own approach from) considered that the act of riddah was necessarily a combination of perfidi and inobedienti. In other words, the murtad (the one who commits riddah) did not simply reject an internalised faith, but was assumed to be a radical bent on subverting the established social order. On this point, there was little objection, despite the Qur’anic exhortation that ‘la ikraha fi-l-din’ (there is no compulsion in the religion). The jurists were obviously not unaware of the Qur’anic verse, and had no reason to ignore it – their conception, and that of the society around them, was that generally speaking, the punishing of the murtad was not ‘compulsion’, as it was necessarily bound up with other sins and crimes.
The jurists recognized the extremely strict standards of evidence and the procedural matters required for the process of conviction, which led to very few convictions of riddah in Muslim history. This is unlike, it has to be said, the case in Christendom, where the Catholic Inquisitions claimed many lives over many centuries. Where a conviction did take place, it was generally a façade, to cover up the ‘real reason’ of wanting to selfishly eliminate a threat. One example of this was the famous case of the Sufi saint, al-Hallaj. Another example would be the conviction of Ibn Taymiyya of apostasy; a great irony, when one considers that many of his contemporary fans are some of the most stalwart in their opinion that all kinds of apostasy should be punished by death.
Ibn Taymiyya’s subsequent amnesty by the political authority underlines a key point that deserves to be explored further. While it is clear that the majority of the jurists agreed for such issues to be kept on the books, it is equally clear they agreed that the execution (or suspension, commutation or amnesty) of these punishments is the absolute prerogative of the political/executive authority in question. No jurist could reject the punishments in principle; to do so would amount to an assertion that their legislative predecessors, including the Prophet, were collectively in error. However, no authority, except the political authority, had the right or the responsibility to carry out any punishment dictated by Muslim public law. No individual could carry it out: to do so would be a grave and terrible sin and criminal, and the state could (and indeed, did) suspend or commute any punishment if it was deemed to be in the public interest. If they were wrong, then they, and only they, would be answerable to God.
(This emphasis on the rejection of vigilante action, and on the acceptance on an effective political collective authority, is to be found in many systems of the world, as it is the only way in which order can be established, and thus civilization. George Mason, one of the key players in the American Revolution, changed his family coat of arms motto from pro patria semper to pro republica semper, (always for the state); in this, he reflected the motto of the medieval English clan of Hellyer…)
That authority could be a ‘caliphate’, a ‘sultanate’, a kingdom, a democracy; whatever happened to be the political/executive authority of a given geographic area. Despite the obsession over terms like ‘caliphate’ in contemporary media (whether non-Muslim or not), the reality is that in Islamic law the issue is whether or not Muslims have self-determination over their own affairs. If they choose to exercise such self-determination through calling such a state of affairs a ‘caliphate’ or a ‘democratic republic’, it is immaterial: what matters is how the state is run. In choosing to fulfil any legal punishment, whether on riddah or traffic violations, the state authority has the sole authority to carry it out, and could suspend it if it chose.
Of course, should Muslims still demand to have a caliphate, they have the option to migrate to Morocco immediately, and pledge allegiance to the ruler there, who remains the sole remaining genuine claimant to this ancient office…
Now, we in the West may disagree with all of this, and legitimate disagreements between the details of Islamic law and the details of Western law do exist, for a variety of reasons. It bears remembering, however, that in the contemporary era, for a broad variety of reasons, the political authorities of the Muslims across the Muslim world have introduced further legislation that makes it invariably impossible to fulfil such a procedure. Such reasons include the signing of international declarations that were to the benefit of the Muslim states, and, perhaps more importantly, the distinction between civic and religious obligations in the modern world.
Now, other muftis and authorities could argue otherwise, and that is living pluralism in action in Islamic legal analysis: but they will also point out that the implementation of any such punishment is the sole prerogative of the political/executive authority. Eventually, it is likely that they too will incorporate into the books of taught & applied Islamic law that the theory itself is outdated. That would not be in contradistinction to classical notions of Islamic law: indeed, it has happened many times before, and jurists have recognized as legitimate when it is in the public interest and is the prevailing public practice.
Or, to put it in another way, when the maqasid (overall aims) of Islamic law are not abrogated. Those maqasid, however, are elaborated upon not by liberal political elites, but by contemporary specialists in Islamic law – such as the aforementioned Mufti, or other such trained practitioners. Other contemporaries exist, but their opinions hold sway among Muslims only because of their chains of scholarly inheritance connecting them to the Prophet himself. And therein lies the rump – change, if it is to be sustainable, comes from within, or not at all. We in the West would do well to remember that.
Dr. H. A. Hellyer is Fellow of the Oxford Centre for Islamic Studies at the University of Oxford. As founder-director of the Visionary Consultants Group, a Muslim world-West relations consultancy, his advice and commentary has been sought by the Home Office & Foreign Office (UK) as well as the Brookings Institution (US) and the Washington Post (US).