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THE CLASSICAL AND MODERN APPROACHES ON THE LAWS OF APOSTASY

IN ISLAMIC LAW

One of the most controversial areas of Islamic law is apostasy, converting from

Islam to another religion and its punishment by capital penalty. Historically, there has

been an unanimous approach on the punishment of apostasy by the death not only in the

classical Islamic jurisprudence but also in Judeo-Christian traditions. Negative attitudes

and harsh punishments towards apostates are common in the three Abrahamic traditions.

All three traditions have considered apostasy as an act of religious and public separation

from the community, and threat to the order of the community (Ayoub, 1). Although

there are some differences on the application of apostasy laws among four schools of

jurisprudence in the Sunni tradition, they all agree that apostasy is one of the major

crimes. Therefore classical jurists have considered apostasy as a violation of the right of

God (huquq Allah), and it is put in the same category as theft, banditry, unlawful sexual

intercourse, slanderous allegations of unchastity and drinking alcohol. This can be found

in the section of fixed punishment in the jurisprudence books (Peters, 7; 2005). In the

paradigm of classical Islamic legal discourse, in fact, the laws of apostasy are to protect

the community and the religion, which is one of the primary purposes of the Shari’a law

(Srakhsi, 110).

At the end of 19th and beginning of 20th centuries, however, Islamic law had to

face the significant challenge of modernity, the notion of the nation state, human rights,

and democracy. The universal declaration of human rights implies important principles

with regard to freedom of religion. According to the declaration of human rights, one has

the right of freedom to maintain or change his/her religion, and there should be no

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coercion to practice his/her religion. (Saeed and Saeed, 10). Therefore, in the modern

period, the freedom of religion has become an important question for Muslim scholars. In

the face of this challenge, some Muslim scholars support the universal declaration of

human rights, and they consider that the declaration is compatible with the general

principles of the Koranic text and Prophetic tradition, and the laws of apostasy are not an

essential part of Islam, rather they are part of the historical, social and political Muslim

jurisprudence thought. Alternatively, some Muslim scholars argue that the universality of

human rights is the product of Western culture, and can not be the basis of human rights

in Islam. So, they apologetically claim that the laws of Shari’a on apostasy are the

essential part of the religion (Saeed, 13).

The purpose of this essay is to discuss and analyze the classical Islamic

jurisprudence approach and the Modern Muslim scholars’ views on the laws of apostasy.

What is the nature and scope of apostasy? What are the arguments of the classical

approach on apostasy laws? How do the Koranic text and the prophetic tradition play a

role on the determination of the laws of apostasy? What is the relationship of these laws

with historical Muslim political tradition? What are the similarities and differences on the

apostasy laws among the four Sunni jurisprudence schools? Why did the laws of apostasy

become problematic in our times? What are the positions of modern Muslim scholars on

the apostasy laws? Are the laws of apostasy an essential part of Islam or a non-essential

part of historical, social and political Muslim juristic discourse? Finally, what is the

proper way and how can one reconcile and accommodate apostasy laws with the notion

of human rights and religious freedom in a pluralistic society? These are some possible

questions I will discuss in this essay. To begin with, in order to understand the concept of

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apostasy in Islamic jurisprudence, it is important to look first at the meaning and

definition of the term apostasy (riddah), and the related concepts such as heresy

(zandaqah), blasphemy (kufr), and hypocrisy (nifaq).

Apostasy in the Classical Islamic Jurisprudence:

a- The term of apostasy and related concepts:

Apostasy (riddah) means “tuning back,” and apostate (murtadd) is the active

participle for the verb irtadda (to turn back, to renounce) (Lexicon, 1064). Classical

jurists define apostasy very broadly. For them, any act of disbelief, or any belief which

contradicts with Islam, any disrespectful act towards God, the sacred book and the

Prophet or any deviant and clear mockery regarding Islam leads to apostasy. (Ghazzali,

166). For example, to prostrate to an idol, or to bow down to something other than God,

to speak such words as “Allah is the third of three” or “I am Allah,” to defame God or his

messenger, to deny any attributes of God which the consensus of Muslims adhere to, to

deny any verse of the Koran, to deny existence of an angel, jinn or heaven, to be sarcastic

about any ruling of the Shari’ah are some example of sayings and acts which imply

disbelief. (Al-Misri, 597-598). As a juristic term, apostasy means to turn away from

Islam and embrace another faith after being a Muslim by birth or conversion. To be

considered an apostate, one has to have reached the age of puberty and not be insane. The

act should be done with free will without any coercion (Ghazzali, 166).

The example of sayings and acts of disbelief and apostasy are plentiful and so

broad in fiqh manuals. Abdullah Saeed and Hassan Saeed in their significant study

Freedom of Religion, Apostasy and Islam, argues that the notion of apostasy in the

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classical juristic discourse is much related to early historical religious, theological and

political conflicts of the Muslim community. During these conflicts, apostasy was used as

a weapon by different sects, and different theological and juristic schools (sunni, shia,

khariji). They point out, “Consequently, each group claimed to be the representative of

true Islam, and those who did not share their views were readily labeled heretics,

apostates or unbelievers” (28). During the Prophet’s life, all instances of apostasy were

example hostility, violence and abuse against the Muslim community (Kemali 1997,

215). Although a few jurists make distinction between apostasy and blasphemy, majority

of classical jurists did not make a clear distinction between blasphemy, heresy and

apostasy (Kemali 1997, 215). The apostasy was used as umbrella term included both the

individual religious conversion and political and militant hostility towards the community

(Kemali, 1997, 214). Indeed, the same action or saying can lead a Muslim of being

accused of apostasy, heresy, disbelief and hypocrisy. Muhammad H. Kamali points out

that combining apostasy and blasphemy is not a consistent approach according to the

Koranic sole statement of “no compulsion on religion,” and they should be treated as

separate concepts (216). In this sense, it is important to look carefully at the word

apostasy and its’ different usage in the Koranic verses. How does the Koran approach

apostasy? Do the Koranic verses indicate a worldly punishment for the apostate or not?

b- Apostasy in the Koran:

Apostasy seems to be a subject of free choice to accept or reject a faith rather than to be a

legal or political issue. It is an issue between human free will and God’s absolute will and

power, it does not have any political and legal implication in this world (Ayoub, 77). The

word apostasy (riddah) and its’ different variants are mentioned in thirteen verses in

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different chapters of the Koran. None of these verses indicate a punishment to be held in

this world. On the contrary, all these verses demonstrate a serious punishment in the

Hereafter (El-Awa, 50). When we look at these verses, we see some of them reviled to

Prophet Muhammad during the Mecca period, and some of them reviled to him during

the Medina period. Some different usages of the term apostasy in the Koran are as

follows:

VERILY, those who turn their backs [on this message] (irtaddu ‘ala adbarihim)
after guidance has been vouchsafed to them, [do it because] Satan has
embellished their fancies and filled them with false hopes (Asad, 47:25.)

O you who have attained to faith! If you ever abandon (man yartaddu minkum ‘an
dinihi) your faith, God will in time bring forth [in your stead] people whom He
loves and who love Him – humble towards the believers, proud towards all who
deny the truth: [people] who strive hard in God’s cause, and do not fear to be
censured by anyone who might censure them: such is God’s favour, which He
grants unto whom He wills. And God is infinite, all-knowing (Asad, 5:54).

They will ask thee about fighting in the sacred month. Say: "Fighting in it is an
awesome thing; but turning men away from the path of God and denying Him,
and [turning them away from] the Inviolable House of Worship and expelling its
people therefrom – [all this] is yet more awesome in the sight of God, since
oppression is more awesome than killing." [Your enemies] will not cease to fight
against you till they have turned you away from your faith, if they can. But if any
of you should turn away from his faith (wa man yartadid minkum ‘an dinihi) and
die as a denier of the truth – these it is whose works will go for nought in this
world and in the life to come; and these it is who are destined for the fire, therein
to abide (Asad, 2:217).

As for anyone who denies God after having once attained to faith – and this, to be
sure, does not apply to one who does it under duress, the while his heart remains
true to his faith, but [only to] him who willingly opens up his heart (man sharaha
bil-kufr) to a denial of the truth: upon all such [falls] God’s condemnation, and
tremendous suffering awaits them (Asad, 16:106).

As we see in these verses, if a person after his or her belief turns away from

Islam, they will be judged in the next life. As a matter of choice, the Koranic verses

indicate that apostasy is a possible option for those who really do not understand and

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comprehend the prophetic message. It clearly mentions that for those who turn away from

their faith, they will incur harsh punishment in the Hereafter. We do not see a worldly

punishment for apostate in these verses. In the Koranic context, apostasy is a religious

offence rather than a civil offence. In this sense, Ayoub’s assessment here is very crucial,

“…the Qur’an treats the problem of apostasy in the context of faith and the rejection of

faith. In this context, apostasy is a religious and moral decision subject to Divine

retribution or pardon on the day of judgment. Apostasy, therefore as a personal inner

moral decision, ultimately lies outside the authority of the sacred law” (78). It is

important to note that the classical Muslim jurists did not apply these verses in their

arguments to determine the laws of apostasy. The idea that there is not a legal punishment

in the Koran, rather that there will be a punishment in the next life for an apostate is

advocated by a few classical Muslim jurists. However, this approach is widely advocated

by modern Muslim scholars. We will discuss more broadly the modern Muslim scholars’

approaches on apostasy in the next pages, but first we need to look at the classical

arguments on apostasy and how classical jurists justified the punishment of an apostate

by the death penalty. What is the primary evidence for the apostasy laws, and how did

they apply these laws with regard to the Islamic law?

c- The arguments in the classical Islamic jurisprudence on apostasy:

The classical Muslim jurists treated apostasy as one of the most serious civil and

religious offences, and there is general agreement among the jurists that the punishment

for apostasy is death (Ibn Rushd, 552). The main arguments about the punishment of

apostasy in the Shari’a are based on the prophetic tradition, and the practices of the early

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Muslim community. Ayoub points out that early narrations dealing with apostasy are

divided into two categories: those which are an indirect narrative report, and those which

are a direct and a legislative commandment report. Although there are some internal

problems of these narrations, Ayoub points out “they have played a crucial role in

shaping the harsh legislations concerning apostasy, as well as the social and political

attitudes towards apostates” (81).

One of the major pieces of evidence for the justification of capital punishment in

the case of apostasy is based on the authentic hadith from the Prophet Muhammad

narrated by Ibn Abbas “whoever changes his religion, kill him.” (Buhari, v:9, p: 45)).

This hadith according to majority of jurists constitutes a direct legislative commandment.

However, the hadith is too general and vague. It implies that anyone who once accepts a

religion, whether Islam, Christianity, Judaism or any other religion, can not change, it

implies a meaning that even if a non-Muslim becomes a Muslim, or a Jew becomes a

Christian he/she must be killed (Al-Awa, 53). That is why the majority of classical jurists

made limitations about the meaning of the hadith. They restricted the meaning of the

hadith to a person who changed his/her religion Islam for another religion (Saeed and

Saeed, 59). In this respect the anecdote of Imam Malik (d.179/796) in his Muwatta is

very important.

The meaning of the Prophet’s sayings – in our view, but God knows best – is that
anyone who abandons Islam for another religion, such as the dualist and their
likes….these should not be made to repent, not should their word be accepted. As
for who publicly leave Islam for another religion, I say that should be invited
anew to Islam and enjoined to repent. If they repent, it should be accepted from
them, but if they do not, they should be killed. We do not think this hadith refers
to those who leave Judaism for Christianity or Christianity for Judaism, nor those
who change their religion of the people of all religions other than Islam (458).

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The other important limitation about the meaning of this hadith is the Hanafi

jurists’ view that the death penalty should not be applicable to women because of the

other Prophetic tradition that prohibits the killing of women, elders and children during

war. In addition, women are not capable of fighting, so they do not pose a threat to the

Muslim community (Marghinani, 165). Another important exception about the meaning

of the hadith we find in the arguments of modern Muslim scholars is that an apostate who

simply changes his/her religion without engaging in violence and warlike activities

against the Muslim community should not be executed. The apostate, according to them,

must be executed if he is traitor not if he/she incerely changes his/her faith (Saeed and

Saeed, 59).

To make the meaning of the above-mentioned hadith more specific, Ayoub quotes

another report related to the apostasy from another hadith collection, Sunan al Timidhi

(84).

The Prophet, peace be upon him, said: “The blood of a Muslim who confesses
that there is no god but Allah and that I am the messenger of Allah, cannot be
shed except in three cases: a life for life; a married person who commits illegal
sexual intercourse; and the one who turns renegade from Islam (apostate) and
leaves the community of Muslim.

The ‘A’ishah version of this hadtih is more specific, “A man who leaves Islam and

engages in fighting against Allah and His Prophet shall be executed, crucified or exiled”

(Saeed and Saeed, 60). This version makes a clear distinction between apostasy and

fighting against the established authority. The report was about giving the punishment for

those who violated the fundamentals of community because of their serious threat. In this

sense, apostasy seemed to be more a political problem for the first Muslim community

rather than be a religious issue. The reports about the punishment of apostasy were

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clearly related to the historical, social and political conditions of the first Muslim

community in Medina. Changing religion was not a simple act of changing faith, but it

was a militant act leaving the Muslim community to join the non-Muslim side, and

therefore, created a threat to the Muslim community.

Another report attributed to the Prophet about the death penalty of apostate is the incident

of the ‘Uraynah. The following hadith is about this event:

Anas b. Malik reported that some people belonging (to the tribe) of ‘Uraynah
came to the Prophet at Medina, but they found its climate uncongenial. So the
Prophet said to them: if you so like , you may go to the camels belonging to the
public purse and drink their milk and urine. They did so and were all right. They
then fell upon the shehpherds and killed them and turned apostates from Islam
and drove off the camels of the Prophet. This news reached the Prophet and he
sent (people) on their track, and they were (brought) and handed over to him. He
(the Prophet) required their hands and their feet be cut off, and put out their eyes,
and (they) were left on the stony ground to die

Saeed quotes this report from the hadith scholar al-Nawawi and points out that the

punishment here is related to the verse 5:33 (62):

It is but a just recompense for those who make war on God and His apostle, and
endeavour to spread corruption on earth, that they are being slain in great
numbers, or crucified in great numbers, or have, in result of their perverseness,
their hands and feet cut off in great numbers, or are being [entirely] banished from
[the face of] the earth: such is their ignominy in this world. But in the life to come
[yet more] awesome suffering awaits them

As an accord with the Koranic verse, the punishment in the report is about the highway

robbery and their killing of the shepherds; it is not about changing their faith (Saeed and

Saeed, 62).

The caliph Abu Bakr’s riddah (apostasy) warred against those who did not pay tax

to the Muslim state is another important example and most commonly used by Muslim

jurists with regard to the formation of apostasy laws. After the Prophet Muhammad’s

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death, his closest companion Abu Bakr became his successor. During this period, many

Arab tribes who accepted Islam or made peace with the Prophet rebelled against the

central authority. Some of these tribes wanted to stay Muslim, but they did not want to

pay a tax to the state. These tribes believed that after the death of the Prophet their

agreement was no longer valid, and they should not have an obligation to pay the tax. It

was a critical condition for the future of the Muslim community. The caliph Abu Bakr

decided to fight against those who did not want to pay the tax, despite the strong

objections of senior companions of the Prophet that he should not fight those who still

claim “we are Muslims.” In two years, he managed to bring all those rebellious tribes

under the central Muslim authority. Many Muslim historians and jurists interpreted these

events, relating them to the apostasy laws. The battles of Abu Bakr, however, were not

religious; rather they were political to maintain the central authority in Medina and unite

the Muslims under one authority (Saeed and Saeed, 65-66).

Srakhsi (d.490/1096), one of the early distinguished Hanafi jurists, considers that

the death punishment for apostasy is not due to simply changing faith; it is for the

perpetrator’s insistence on his unbelief, and his capacity and ability to be a threat and

fight against the Muslim community (Srakhsi, 110). Srakhsi makes a distinction between

the sole individual apostate and the one who becomes a threat and an enemy to the

established community. At the same time, according to Srakhsi, there is no death penalty

for women apostates because their act is individual and does not pose any threat to the

Muslim community (110). This is because the paradigm of that society was based on

strict religious affiliation. In this paradigm, the world was divided between the territory

of belief (dar al-Islam) and the territory of unbelief (dar al-kufr). In a constant struggle

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between these two territories, changing religion meant changing lines, and becoming a

potential combatant (Srahksi, 110).

d- The consequences of apostasy in classical Islamic jurisprudence:

1- Penal law:

The majority of Muslim jurists agree on the death penalty for an apostate.

However, there are some differences among the four schools. For example, while Shafiis,

Malikis and Hanbalis considered the same death penalty for a woman apostate, Hanafis,

however, excluded women from the death penalty. For them, women should be kept in

hostage, forced to repent and accept Islam. If they refuse, they should be beaten and

imprisoned in order to affect their return to Islam (Sarkhsi, 110). Other important

exceptions are for those who are insane, minor, who do not understand the meaning and

consequences of apostasy, and those who convert to Islam, or when there is an important

doubt that the person accepts Islam under compulsion. In addition, the state of

intoxication and the testimony of an unreliable witness about the apostasy of a person are

also other substantial doubts that invalidate the capital punishment for an apostate in

Islamic law (Peters 1977, 6). If the evidence is clear about the apostasy of the person, the

majority of Muslim jurists assert that the apostate should be asked to repent and return to

Islam. The period of repentance is essential before the death penalty and considered by

the majority of jurists to be three days (Buhuti, 241). If a person is first a combatant then

becomes an apostate, he will be executed, and he is not required to repent. If the

combatant converts to Islam after he is captured, the punishment, according to Malikis,

will depend on whether he fights in the abode of Islam (dar al-Islam) or in the abode of

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unbelief (dar al-harp). If he is captured in dar al-harb, his case is like those who are

combatants, and he is not subject to punishment for what he has done during his apostasy.

However, if the combatant is captured in the dar al-Islam, he will not be responsible for

his act of apostasy but he will be responsible for what he has done during his apostasy

(Ibn Rushd, 552). According to classical Muslim jurists another exception about

repentance is that the repentance of heretics, or those who explicitly insult God and his

Prophet will not be acceptable (Buhuti, 241).

2- Civil law:

There are different views on the property of an apostate. All schools agree that if

an apostate returns to Islam, he/she shall remain his/her rights on the property. However,

there are different views if the apostate fails to repent and dies as an unbeliever.

According to Abu Hanifa (d.150/767), the property of a male apostate before his act of

apostasy can be inherited by his Muslim heirs, but the estate he has acquired after his

apostasy goes to the public purse. In the case of a woman apostate, according to Hanafis,

her property can be transferred to her Muslim heirs upon her death (Marghinani, 165).

However, according to majority of jurists, Malikis, Shafi’is and Hanbalis, both the

property of men and women apostates were considered as spoils of war and transferred to

the public purse, because, for example, according to Imam Shafi’(d.205/820), the

apostate is an unbeliever and an unbeliever does not have the right to give an inheritance

to a Muslim (Marghinani, 166). In the case of marriage, if one of the partners becomes an

apostate, according to Hanafis and Malikis, they should be separated. If both partners

become apostate, according to Hanafis, they can remain married; but for Shafi’is and

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Hanbalis they should be separated. Their children before their apostasy remain Muslim

and should not be allowed to follow their parents (Saeed and Saeed, 53).

Although the dominant view of classical Muslim jurists about the punishment of

apostasy is capital punishment, some jurists’ opinions seem to be close to the Koranic

notion of apostasy. That simply conversion from Islam to another religion is a sin

between God and the human being, and God punishes an apostate in the next life. For

example, the great classical scholar, Hasan al-Basri (d.120/737) asserted that an apostate

should be directed to repent one hundred times. Another great classical scholar, Ibrahim

al-Nakhi (d.95/712), who was a contemporary of Hasan al-Basri, advocated that an

apostate should not be killed, rather he/she must be given a chance to repent until their

natural death (Ayoub, 89). In addition to this, some jurists have classified the

punishment of apostasy under crimes of deterrence (ta’zir). For instance, Imam Baji

(d.474/1089), the great Maliki jurist, advocated that apostasy is not hadd crime, it is a sin

and falls under ta’zir crimes (Al-Awa, 55).

In classical Islamic law, although the legal judgments and theoretical formulations

of apostasy laws seem to be harsh, Ayoub points out that “they remain somewhat

tentative and widely divergent. This is especially true with regard to maximum or

ultimate penalties (hudud), such as those of adulatory, theft, murder and apostasy”

(Ayoub, 90). Apostasy was not a problem for the Muslim community during the

medieval ages. It remained in theory rather in practice. During the modern period,

however, the issue of apostasy turned to be a controversial and a politic issue in the face

of new challenges and new developments that took place around the world and in Muslim

countries.

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Apostasy in the Modern Period:

During the modern period, the consensus of classical Islamic jurisprudence on the

punishment of apostasy by the death penalty faced many significant critics by modern

Muslim scholars. In this sense, there is a great sense of diversity among Muslim scholars

on the issue of apostasy. Some Muslim scholars continued to support the dominant

classical view on apostasy, and they asserted that the laws of apostasy are the essential

part of the religion. Some Muslim scholars in some extent challenged and restricted the

pre-modern approach. Finally, some Muslim scholars radically challenged the paradigm

of the classical position, and prescribed apostasy on the framework of modern religious

freedom (Saeed and Saeed, 88).

a- The continuity of pre-modern position:

Today in the Muslim world, a large number of Muslim scholars follow the

dominant classical juristic position without any change. For them, the laws of apostasy as

prescribed in the jurisprudence of books are not subject to change, because they are a

vital part of Islam. In this sense, a Muslim can not change his/her religion. If he/she did

so, the punishment would be the death penalty (Saeed, 89).

One of the recent legislation efforts to continue the classical approach on

apostasy is the Hudud Bill of Kelantan, Malysia in 1993 (Kamali 1998, 213). According

to Kamali, the Hudut Bill on irtidad (apostasy) does not reflect a significant reasoning

and understanding on the issue of apostasy and the contemporary realities of Malaysian

society. The Bill picks up the literalist classical approach without any reconciliation with

the modern situation. In this sense, the Bill’s definition of apostasy is in conflict and

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unclear with regard to the Constitution of Malaysia on the freedom of religion, and also

the Koran (Kamali 1998, 213). Moreover, the Bill fails to see a variety of opinions on the

issue. Apostasy, according to the Koran and many scholars, is a sin, and its’ punishment

will be given on the Day of Judgment. The underlying point here, which Kamali points

out, is the historical punishment of apostasy by death. It is closely related to a person who

is hostile and actively fighting and putting in jeopardy the safety and security of the

community. The Bill fails to see this important historical fact, and generalizes this

historical understanding of apostasy in the Malaysian social context which is

fundamentally different (Kamali 1998, 214).

Modern Egyptian society is an important example which demonstrates some

application of apostasy laws on Baha’is in our time. The fatwas in this issue state that

Baha’is are heretics, those who accept this sect will face apostasy laws (Pink, 434).

However, the fatwas concentrate on the matters of personal status, which are the

secondary consequences of apostasy. They disregard the first consequences of apostasy,

which is the death penalty (Pink, 433). In this sense, the classical Hanafi school laws on

inheritance, family relations and marriage are still applied in modern Egyptian society

(Peters 1977, 21). Furthermore, one of the recent fatwas issued by Jadd al-Haqq as a

Shaykh al-Azhar, states that an apostate must have the death penalty, especially for those

who embrace the Baha’iyya sect (Pink, 433). It seems that the fatwas on the issue of

apostasy are confusing and do not show a real attempt to solve the modern problems of

Baha’is in Egyptian society (Pink, 434). Both cases from Malaysia and Egypt indicate

that without giving sufficient consideration into the context of the classical juristic

approach and the realities of the modern society, some Muslim scholars superficially tend

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to reproduce and consume the laws of apostasy as prescribed in the classical juristic

manuals. Moreover, the laws of apostasy sometimes can be used as an ideological

weapon by the political or religious authorities. For example, the case of Nasr Hamid

Abu Zayd, a professor of Islamic studies, in Egypt in 1993 who was accused of apostasy

and his life was threatened by fundamentalist Muslims. This and similar cases prove that

apostasy laws can be used as a political tool to manipulate intellectuals when their

writings and thoughts are considered to be heretical by the dominant culture (Said, 103-

104).

b- The pre-modern position with some restrictions:

Some modern Muslim scholars criticized the classical arguments of apostasy with

the death penalty, and classified the punishment of apostasy for the crime of political

“treason” (Saeed and Saeed, 90). However, the definition of “treason” remains vague in

their arguments. Although they emphasized the distinction between the Koranic notion of

apostasy and the classical juristic arguments on apostasy, it seemed that they tended to

justify the pre-modern position, which was the death penalty, rather than to contribute a

substantial solution. At same time, some scholars in this category considered Islam not

only a religion but also a social-political order. In this sense, turning away from Islam

automatically means leaving the social order, and therefore becoming a traitor (Saeed and

Saeed, 90).

Rashid Rida (d.1935), one of the leading modernist scholars, criticizes the

classical position of apostasy, and asserts that the punishment of apostasy by death

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penalty is in conflict with the clear Koranic text “No compulsion in the religion” (2:256).

He advocates the death penalty for apostasy prescribed in the classical jurisprudence for

those who revolted against Muslim authority, not for those who individually changed

their religion. (Hourani, 237). Although Rida makes a distinction between the individual

act of apostasy and the political act of apostasy, his arguments on the political act of

apostasy are not clear. He does not go forward to explain what he means by being a threat

to society. He seems to justify the classical doctrine versus the modern notion of religious

freedom.

For example, another modern Muslim scholar Ismail al-Faruqi (d.1986), who

considers Islam not only a religion but also a social and political order, justifies the death

penalty for apostasy because the act of the perpetrator constitutes a serious threat to the

Muslim society and state. However, he leaves an option that the convert can emigrate

from the Muslim country. He writes,

To convert out of Islam means clearly to abandon its world order which is the
Islamic state. That is why Islamic law has treated people who have converted out
of Islam as political traitors. No state can look upon political treason directed to it
with indifference. It must deal with the traitors, when convicted after due process
of law, either with banishment, life imprisonment, or capital punishment (68).

Faruqi does not make any distinction between possible varieties of apostasy. It is possible

that when one changes his/her religion, one can still be in peace with the Muslim society.

On the other side, when one changes his/her religion, he/she can commit the crime of

political treason against the Islamic state. Without making this important distinction,

generalizing the death penalty for an individual act of apostasy is not compatible with the

sole principles of religious freedom.

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c- The radical move from classical doctrine to the notion of religious

freedom:

Some Muslim scholars have argued that apostasy laws are not compatible with the

universal Koranic message. The Koran, according to them, clearly supports the freedom

of religion, apostasy as an individual act is between God and the human being. Therefore,

there is no temporal punishment in this world. They have asserted that there is no conflict

between the Koran and the modern universal human rights, religious freedom. The

classical doctrine of apostasy, according to them, is a part of the historical and political

Muslim jurisprudence thought; it is not the essential part of Islam. They have thought that

there is a huge difference between the realities and circumstances of pre-modern Muslim

societies and today’s contemporary Muslim societies. Therefore, the issue of apostasy

needs to be rethought in the light of the Koran and the universal declaration of human

rights (Saeed and Saeed, 93).

One of the leading Egyptian modernist scholars, Mahmud Shaltut (d.1963), argues the

concept of apostasy and points out that the Koran does not imply a temporal punishment

for apostasy, but it predicts an eternal punishment in the next life (288). He asserts that

the death penalty for an apostate is based on an isolated report (hadith al-ahad), but the

hudud laws can not be established on this kind of foundation. In this sense, simply

turning away from Islam does not require the death penalty, and this is in conflict with

the clear Koranic verse “No compulsion on religion” (2:256). Capital punishment,

however, is for those who are politically a threat to the Muslim community (Shaltut,

289).

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Another contemporary Muslim scholar, Said Al-Awa, argues that the dominant

position among classical Muslim jurists concerning the punishment of an apostate is the

death penalty, despite some jurists who have classified apostasy as a discretionary

punishment (ta’zir), which is well documented (55). In fact, Al-Awa makes a distinction

between a political act of apostasy and an individual act of apostasy. The early death

penalty for those who were a threat to the Muslim community, and the Hanafi school’s

exclusion of a woman apostate from the death penalty because of her incapability to

fight, is an indication that the death penalty was given for the political reasons (Al-Awa,

63). Al Awa points out that the Koran does not require a civil punishment for those who

simply turn away from Islam, and he continues, “The Qur’an prescribes no punishment in

this life for apostasy. The Prophet never sentenced a man to death for it. Some of the

companions of the Prophet recognized apostasy as a sin for which there was a ta’zir

punishment, as did some jurists” (56).

Muhmmad H. Kamali, one of the eminent modern scholars of Islamic

jurisprudence, analyzes the religious freedom, and the classical jurists’ views on apostasy

and blasphemy in his book Freedom of Expression in Islam. His reading and critic of

arguments about the law of apostasy by the death penalty in classical Islamic

jurisprudence is a significant contribution to understand the concept. Kamali argues that

the punishment of apostasy with the death penalty is basically in conflict with the clear

Koranic notion on the freedom of religion (1997, 213). For Kamali, it is essential to

distinguish between the political nature of apostasy and individual nature of apostasy

(1997, 213). He points out that there was no clear distinction between the political

offenses and religious offenses in the time of Prophet and the first Muslim community.

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Blasphemy and apostasy were basically political crimes mixed with the religious

ideology. The early jurists generalized these early incidents as apostasy and blasphemy

and justified apostasy with the death penalty. In fact, the punishment of apostasy in early

Islam with the death penalty was due to the perpetrator’s serious threat to both religious

and political foundations of the community (1997, 249). Kamali underlines this fact and

writes “Although the circumstances that had once provided a persuasive argument in

support of capital punishment for apostasy no longer existed, the legal provisions that

initially addressed the issue nevertheless remained unchanged; however the character of

apostasy had in fact changed from being a predominantly political offence to one which

was predominantly religious” (1997, 250). As Kamali points out there has been a radical

change in the structure of modern society. Today, in the context of the nation state, the

political offences and conversion to other religions are simply not considered as being in

the same category. While individual conversion must be considered in the scope of

religious freedom compatible to the spirit of the Koran, the punishment of apostasy with

the death penalty that occurred in early Islam must be considered as a political crime

which is equivalent to treason in the modern context.

Conclusion:

Apostasy is one of the most controversial concepts in Islamic jurisprudence today.

The classical doctrine of apostasy is based on early political judgments of the Prophet and

20
his companions. When we carefully examine the arguments of the classical position of

apostasy which is the death penalty, we understand that the capital punishment for an

apostate is not based on sole religious conversion, but it is based on the political decision

of the first Muslim community. In the context where religion constitutes every aspect of

an individual’s social and political life, and Muslims have a constant struggle and fight

with the other religious communities, changing religion is not considered as an individual

act of conversion, but it was considered a potential political threat to the Muslim

community. When somebody accepts Islam, he/she automatically becomes part of the

community. In the case where he/she leaves the community, he/she looses his/her

political identity. Therefore, it was reasonable to punish an apostate with the death

penalty who was a threat and fought against the Muslim community in that historical and

social context. However, we do not see in the Koran and the Prophet’s life that apostasy

as an individual act should be punishable by the death penalty. In this sense, the Koran

and the Prophetic tradition clearly support the notion of religious freedom, and they are

against coercion and pressure when one accepts or rejects a religion. However, the

majority of classical Muslim jurists agreed with the early political punishment of

apostasy by the death penalty for every situation of conversion from Islam. Meanwhile,

apostasy was misused as a political and sectarian tool during the early political and

sectarian conflicts in the Muslim community.

The unanimous agreement on the punishment of apostasy by the death penalty

faced the significant challenges and changes that have been taking place in the Muslim

world by modernity, Western colonization, the emergence of the nation state and new

sects. Later, the changes and development on the concept of human rights was another

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significant challenge to the classical doctrine of apostasy. Facing these challenges,

modern Muslim scholars have shown a great level of diversity on the issue of apostasy.

Some scholars restate the classical doctrine, some of them restrict some aspect of the

classical notion of apostasy with new interpretations, and finally, a number of scholars

propose a radical change and move from the classical doctrine of apostasy and rethink

apostasy in the light of the Koran and universal human rights. Some contemporary

examples about the misuse of the classical laws of apostasy prove that apostasy still can

be used to support the religious and political discrimination around the Muslim world. In

this sense, I strongly agree with the call of Muslim scholars who propose a substantial

change on the classical laws of apostasy which are not relevant to the realities of our

multi-religious and multicultural world.

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