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
© February
2003
Journal of Lutheran Ethics (JLE)
Volume 3, Issue 2
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.