Previous: Justification for Violence in Islam, Part V: The Law of Rebellion
[43] Undoubtedly, Islam provides a complex relationship between the principles undergirding private acts of self-defense with principles supporting public legal systems to promulgate order. It is important to bear in mind that even when concerns such as proportionality and self-preservation are present in different schools of legal-theological thought within Islam, these principles vary in scope, weight, and how they are applied in practice. With the existence of the Islamic legal tradition which grants concessions to the accused beyond those of the presumption of innocence and the requirement to prove guilt beyond a reasonable doubt, it is inconceivable to propose a purely pacifist attitude inspired by politically quietist prophetic traditions, like the one cited above.
[44] When the Qur’an and the Shari’a allow self-defense by appealing to the instinct of self-preservation and when the agent who is empowered to save his life undertakes to do so without intending to harm or kill the attacker, then it is difficult to maintain a position opposed to bear arms from the Islamic perspective. The alternative to that kind of “turn the other cheek” pacifism need not necessarily be the jih_d-oriented activism. Rather, on the basis of historically autonomous existence of the Muslim community (autonomous from any sense of loyalty to de facto Muslim political authority), faithful to the divinely ordained Shari’a and aspiring to live in accord with its norms, one might be able to speak about its pacifist activism inspired by the legal heritage of Islam.
[45] This pacifist activism in this context is characterized by the demand in the Shari’a for balancing the violence with the concerns of proportionality. The Qur’an admits human ability to cause harm to others and it, therefore, includes the “eye for an eye” limit on retaliation, although such retaliation is not commanded but merely permitted (5:45). The principle of legality requires that no one accused of a crime can be punished unless he has been forewarned of the criminal nature of his conduct.
[46] There are four purposes to punishment in Islamic criminal law: prevention, deterrence, retribution/revenge, and rehabilitation through repentance as a process of self-purification for one’s crime.1 Although deterrence is an underlying purpose in both private and public categories of crime, retributive justice and rehabilitation play important roles in qim_m (“retaliation”) crimes that require redressing of wrong by equalizing the crime, and ta’zAr (“chastisement,” “deterrence”) crimes for which discretionary punishment is instituted by the legitimate authority to deter the offender himself or others from similar conduct. Death penalty which falls under the (God’s “restrictive ordinances”) crime constitutes acts directly prohibited by God for which severe penalty such as capital punishment is sanctioned in the Qur’an.2
[47] Islam proclaims that a crime may affect not only humans, but God as well. There is a sense in which both humans and God may have claims in the same criminal act, 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 infringing a right of humans. There are six offenses which are treated as crimes against religion and for which the law prescribes the specific punishments:
1. Illicit sexual relations
2. Slanderous allegations of unchastity
3. Wine-drinking
4. Theft
5. Armed robbery
6. Apostasy (irtid_d)3
The punishments laid down for them are:
(a) the death penalty, either by stoning (the more severe punishment for unlawful intercourse) or by crucifixion or with sword (for armed robbery with homicide);
(b) cutting off hand and/or foot (for armed robbery without homicide and for theft, depending upon the conditions under which the offender had committed the crime);
(c) flogging with various number of lashes, depending upon the circumstances and the methods used in establishing the guilt.
[48] The underlying principle in the penal code is that the punishment should fit the nature of crime and the character of the offender because the purpose of punishment is the prevention of any conduct prejudicial to the good order of the state. Here the supreme duty of the Muslim ruler is to protect the public interest for which the law afforded him an overriding personal discretion to determine how the purposes of God for the Muslim community might best be achieved.
[49] Since criminal law in Islam represented a system of private law which was conceived to fall under the purview of established political power to ratify and enforce, prosecutions for offenses like false accusation of unlawful intercourse and for theft, crimes which include infringing a right of God and a private claim of humans, take place only on demand of the person concerned, and the applicant must be present both at trial and the execution. In the case of unlawful intercourse the witness play a crucial role. There should be four witnesses to the actual act of intercourse. Moreover, at the time of execution of the 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 from highway robbery before arrest causes the punishment to lapse, and any offenses committed are treated as ordinary delict (jin_y_t) so that, if the person entitled to demand retaliation is willing to pardon, blood-money may be paid instead or the punishment remitted altogether. In the cases of offenses against religion which are not sanctioned by specific punishments, like apostasy (for which there is no definite punishment in the Qur’an), the effects of repentance are even more far-reaching.
[50] Over all, there is a strong tendency in the penal code to restrict the applicability of the capital punishments as much as possible, except in the case of false accusation of illicit sexual relations with its wider social implications. But even in this case the applicability of the capital punishment is circumvented by the requirement of the four witnesses for unlawful intercourse itself.
[51] 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 political in the laws that govern the status of an apostate in the Muslim community.4 Although classified as a capital offense in the Islamic penal code, apostasy was and remains the only crime that presented Muslim legal authorities with a serious dilemma of treating it as such. The verse of the Qur’an which provides the jurists with the original ruling leaves no ambiguity as to its being 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 (2:217).” Clearly, the problem was that while the Qur’an favored an overall tolerance of religious pluralism, the social ethics delineated by the Muslim jurists regarded that pluralism to be a source of instability for the Muslim public order. The so-called wars of ‘apostasy’ (ridda) in the aftermath of the Prophet’s death had served as a grievous reminder to the jurists to provide measures that would desist those engaged in similar disrputive activity in the community.
[52] It is important to bear in mind that based on this early paradigmatic case of wars of ‘apostasy’ (ridda) the use of the term in Islam is not without a problem. To be sure, in its denotation the term carries the experience of the Christian church in dealing with public abandonment of the institutionalized religion. Hence, in the Christian-Western context ‘apostasy’ presupposes the existence of the ‘church’ which determines both the nature and occurrence of apostasy to institute appropriate punishment for an individual’s public abandonment of an exclusive and institutionalized religion for another. On the other hand, the Arabic term ridda or irtid_d (usually translated as ‘apostasy’), in Islamic context, presupposes the existence of a Muslim political authority, which is solely responsible to determine that the act of ridda (in the meaning of ‘rejection of’ ‘turning away from’ Muslim public order) has indeed occurred. Accordingly, in Islam ridda crime necessarily falls under the jurisdiction of political authority that is empowered to determine only the civil aspect of the crime. In the absence of the church and the ecclesiastical body, no one, not even the Prophet, has the power to negotiate the basic religious relationship between the divine and individual human. Thus, when an act of irtid_d (‘rejection’) occurs in the community, it is the responsibility of the civil authority to determine its criminality and take appropriate measure to deal with it. Since its jurisdiction was restricted to the political authority empowered to protect the common good of the community, a number of Muslim juristclassified irtid_d as part of the (“chastisement,” “deterrence”) crimes “which infringe on private or community interests of the public order,” and for which punishment is instituted by the legitimate political authority to deter the offender from such a conduct. Consequently, the burden is placed on the public authority to lay down rules which penalize all conduct that seem contrary to the public interest, social tranquility, or public order.5
[53] Hence, civil considerations surrounding the question of sedition have dominated in determining the act of apostasy in Islam. The ensuing harsh treatment of an apostate in Islamic law is promulgated without making an indispensable distinction between the freedom of religion granted by the Qur’anic insistence that no human agency can negotiate an individual’s spiritual destiny, and the legitimate concerns of 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 the sanctity and the rights of the society to practice their belief, then it is treated as a physical aggression towards the faith. At that point it is no more a case of apostasy; rather, it is treated as an act of sedition that had caused discord and threatened the unity of Islamic community. It is only in this case that ‘apostasy’ is punishable by the severest penalties instituted in the form of necessary self-defense. The Qur’an treats it as a violent rebellion against God and the Prophet and violent rebellion must be countered with violence if necessary: “The punishment of those who take up arms against God and His Messenger and devote themselves to [corruption], creating discord on earth, is that they should be killed….or exiled (5:33).”
[54] By now the problem of treating ‘apostasy’ in the strict meaning of public abandonment of an institutionalized religion for another in Islam is self-evident. In the final analysis, a mere expression of religious dissent against the established community, according to the Qur’an, cannot constitute a criminal act punishable in this world. Muslim civil authority has the ultimate responsibility to use its discretionary power to assess the level of discord created by a public declaration of an apostasy and lay down the appropriate measures to deal with it.
[55] The ordinary delict, that is, homicide, bodily harm, and damage to property is treated as a private and not as a public offense, although it is painstakingly regulated. Whatever liability is incurred through them, be it retaliation or blood-money or damages, is the subject of private claim. There is no prosecution or execution ex officio, not even for homicide, only a guarantee of the right of private vengeance, combined with safeguards against its exceeding legal limits. Pardon and agreeable settlement are possible, but repentance has no effect because the prosecutions are based on private claim. Unlike the crimes against religion, in the case of the delicta there is no tendency to restrict liability. The detailed regulations to verify culpability is undertaken to make sure that deliberate intent, quasi-deliberate intent, mistake, and direct causation are distinguished adequately without minimizing the gravity of the delict. At the same time, the juridical body responsible to administer justice undertakes to assure that the exacted retaliation or blood-money will not exceed legal limits and will not be destructive to the parties concerned.
Next: Justification for Violence in Islam, Part VII: Martyrdom, the Peak of Activism in Islam
End Notes
1 Information in this section is derived from several articles that deal with Islamic criminal law in the volume The Islamic Criminal Justice System, ed. M. Cherif Bassiouni (New York: Oceana Publications, Inc., 1982).
2 N. J. Coulson, A History of Islamic Law (Edinburgh: University Press, 1964) and Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1979) provide the most adequate definitions of the terminology and their discussion in the context of Muslim penal law.
3 There is a fundamental problem in rendering the Arabic word irtid_d as &=javascript:goNote(39apostasy.’ The term irtid_d, 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 murtadd_n 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 a whole range of different religious experience of abandoning an exclusive and institutionalized religion for another. In this sense apostasy occurs when different religions compete with each other in one public arena. Irtid_d, on the other hand, occurs within the communal order, which is threatened by its public manifestation. At that point it is no more a religious offense against which only God provides sanctions. Depending upon the interpretation of the act, which should be undertaken by the political authority, and not the ‘church’ or ‘ecclesiastical’ body, the appropriate punishment is carried out. See article APOSTASY in The Encyclopedia of Religion, Vol. 1, p. 353ff. and fn. 20.
4 I have dealt with the problem of legal definition of apostasy in Islamic jurisprudence in my chapter on “Freedon of Conscience and Religion in the Qur&=javascript:goNote(39an,” 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. Here, I am once again confronted with the complexity of the entire question about ‘apostacy’ in Islam, more particularly, in the light of consistent and obvious Qur’anic treatment of that offense as being beyond human jurisdiction. There is no doubt in my mind that the Qur’an supports freedom of religion and not just tolerance of religions other than Islam. Hence, it does not see itself in competition with other religions in winning converts. The irtid_d or ridda of the Qur’an is strictly speaking ‘turning away’ from God and, hence, punishable in the hereafter only. Whereas the irtid_d in jurisprudence, depending upon its public manifestation and its adverse impact upon the Muslim public order, denotes ‘turning away’ from the community. Hence, the determination of the gravity of the offense is strictly under the jurisdiction of legitimate Muslim authority.
5 Mansour, A. A., “Hudud Crimes,” in The Islamic Criminal Justice System, ed. M. Cerif Bassiouni (New York: Oceana Publications, Inc., 1982), pp. 195-196.