in the Context of
I. Dictionary of Islam by T.P. Hughes
II. Abington Dictionary of Living Religions - Keith Crim
III. The Concise Law Dictionary -- Legal Definitions - P.G. Osborne
IV. The Muslim Conduct of State - Dr. M. Hamidullah
V. Introduction to Islam - Dr. M. Hamidullah
VI. More Definitions and Differences
VII. Kitab al-fiqh Ala' ad-Madahib al-Arba'ah - 'Abd al-Rahman Jaziri
VIII. Some Pertinent Issues
1. Issues cannot be addressed in isolation or out of context
2. Unquestionable reverence and legislative authority of Prophet Muhammad (p.b.u.h.)
3. Hadd or Tazeer?
4. Severity and Harshness of Islamic Punishment
5. Postmodernism and Islam
6. The Western Media and the 'Knowledge Vacuum'
7. The Rushdie Affair
IX. The basic concepts and special feature of Rights and Duties.
| An e-mail communication
by a visitor to our website made us aware, once again, of the need to make
available reliable information on those particular provisions of Muslim
Law which so often shock a casual, uninformed non-Muslim observer, who
is particularly accustomed to a 'Western'/secular way of thinking. Consequently
the derogatory epithets emanating from such people seem to acquire a life
and a currency of their own. Such reactions in their turn, seem to shock
and baffle the Muslims out of their wits too! Yet, in some vague fashion,
both parties seem also to realize that their relative sets of basic values,
fundamental principles and concepts and inherent philosophies are different
in so many ways. Both parties are also likely to realize more often than
not that their respective positions make sense in the context of their
own circumstances. No doubt both are appreciative of the realities of life
that the world has shrunk and changed so much that there is no practical
alternative but to live and let others live side by side. Tolerance and
co-existence is no longer a matter of choice in this nuclear age. Genuine,
real tolerance is not an option anymore. Instead it has now become an imperative
that cannot be ignored. Therefore, it is incumbent on both sides to make
sincere efforts to demolish the barriers of mutual discontent and mutual
ignorance. No doubt the knowledge vacuum has to be eliminated, but how
does one go about filling in this vacuum? Philosophical discourses, academic
presentations and high-brow elitist approaches do have their own roles
to play in their own limited spheres, but it is the need of the man on
the street which must be given top priority. This need can only be fulfilled
by providing reliable information and knowledge in a simple yet sophisticated
manner to satisfy the wide spectrum of the grasp of the average man. In
faithful pursuit of its mandate, the Canadian Society of Muslims is trying
to do just that despite our own limitations of resources.
Our modest effort in this respect is mainly meant to assist the non-Muslim, Western, secular man on the street, in an unbiased understanding of Islamic teachings. We felt that there was no point in resorting to the archaic language or the detailed scholarly discussions and the academic texts of the usual classical legal compendiums such as Fatawa Alamgiri, Hidaya, Kifaya, Dural Mukhtar, Radd al-Muhtar, Quaduri, etc. We have therefore tried to use simple dictionaries and other not-so-difficult English books which are readily available in Western countries and easy to understand without getting into too much detail of an academic nature.
We are obliged to our thoughtful correspondent
for pinpointing the need for information on the Islamic Law of Blasphemy
and Apostasy. We have tried to cover almost all the points of his letter
which in effect are used as our parameters for discussion of the subject
I. Dictionary of Islam
The following definitions are important
for our discussion:
Blasphemy - "(Kufr) 'to hide' (the truth).
It includes a denial of any of the essential principles of Islam.
A Muslim convicted of blasphemy is sentenced to death in Muhammadan countries."
According to Webster's Dictionary(2)"contemptuous
and irreverent speech about God or kings regarded as sacred."
Apostasy - "According to Muslim Law, a male apostate, or murtadd, is liable to be put to death if he continue obstinate in his error; a female apostate is not subject to capital punishment, but she may be kept in confinement until she recant. If either the husband or the wife apostatize from the faith of Islam, a divorce takes place ipso facto; the wife is entitled to her whole dower, but no sentence of divorce is necessary. If the husband and wife both apostatize together, their marriage is generally allowed to continue, although Imam Zufar says if either husband or wife were singly to return to Islam, then the marriage would be dissolved.
According to Abu Hanifah, a male apostate is disabled from selling or otherwise disposing of his property. But Abu Yusuf and Imam Muhammad differ from their master on this point, and consider a male apostate to be as competent to exercise every right as if he were still in the faith.
If a boy under age apostatize, he is not to be put to death, but to be imprisoned until he come to full age, when, if he continues in the state of unbelief, he must be put to death. Neither lunatics nor drunkards are held to be responsible for their apostasy from Islam. If a person upon compulsion became an apostate, his wife is not divorced, nor are his lands forfeited. If a person become a Mussulman [i.e. Muslim] upon compulsion, and afterwards apostatize, he is not to be put to death.
The will of a male apostate is not valid, but that of a female apostate is valid.
Ikrimah relates that some apostates were
brought to the Khalifa Ali, and he burnt them alive; but Ibn Abbas heard
of it and said that the Khalifa had not acted rightly, for the Prophet
had said "Punish not with God's punishment (i.e., fire), but
whosoever changes his religion, kill him with the sword."
Apostasy - Returning to Webster's
dictionary this time for a definition of Apostasy and Treason: - "the public
abandoning of a religious faith, esp. Christianity, for another; a similar
abandonment of a doctrine or party." 'Treason is' defined: "not only as
an attempt to overthrow by illegal means, the government to which a person
owes allegiance, the act or attempted act of working for the enemies of
the State, and attempt to kill or injure the sovereign, but also betrayal
of trust, disloyalty (to a cause, friend, etc.)."
II. Abingdon Dictionary of Living Religions (3)
Apostasy in Islam is defined/described as follows:
Irtidad and Ridda [signifies 'turning back' from Islam to another religion or to unbelief] are the technical Arabic terms and an apostate is a murtadd; (Lit. "one who turns the back") [forsakes Islam for another religion or unbelief]. In the Qur'an, God's punishment for Irtidad is only in the afterlife [life in the next world] (Sura 16:106, ff.; 3:86 ff.; 2:217), although one who repents, not having become confirmed in apostasy, will be saved.
In the Prophetic Tradition, apostasy is punishable by death, a view which is upheld and detailed in both the Sunnite and Shi'ite law books.(4) However, the offender is usually granted an opportunity to recant. Only adult, sane, male apostates who have acted freely are to be executed (traditionally by the sword). Women are either imprisoned until they recant (Hannafites and Shi'ites) or are executed (Malikites, Shafi'ites, and Hanbalites).
The death penalty is rarely carried out today, but there remains a powerful sense of outrage among Muslims when one of their number forsakes the community.
Bibliography, Muhammad Ali, The
Religion of Islam (nd), pg. 591-99; S.M. Zwemer, The Law of Apostasy
in Islam (1924); Burhan al-Din Ali, The Hedaya, etc., Hamilton,
(1791), II, 227. (F.M. Denny)."
III. The Concise Law
Please note, the following definitions
deal with the British Common Law system and do not cover the French/Civil/Roman
law system, yet they could help for a sort of a comparison with the Muslim
Blasphemy "The public or ciminal
libel of speaking matter relating to God, Jesus Christ, the Bible, or the
Book of Common Prayer, intending to wound the feelings of mankind or to
excite contempt and hatred against the Church by law established, or to
promote immorality. It is a common law misdemeanour."
Apostasy "The total renunciation
of Christianity by one who has been educated in or professed that faith
within this realm. It is punishable under 9 WILL, 3, c.35"
Nationality "The character of or
quality arising from membership of some particular nation or state, which
determines the political status and allegiance of a person. It may be acquired
by birth, descent, naturalisation, conquest, or cessation of territory,
or (if a woman) by marriage."
Naturalization "When a person becomes
the subject of a State to which he was before an alien."
State "The organized community:
the central political authority. In international law, a State is a people
permanently occupying a fixed territory, bound together in one body politic
by common subjection to some definite authority exercising, through the
medium of an organized government, a control over all persons and things
within its territory, capable of maintaining relations of peace and ware,
and free from political external control."
Treason "Breach of allegiance --
In all prosecution for treason some overt act must be alleged and proved:
there existed formerly both high treason and petty treason -- The Treason
Act, 1800, provided that in case of high treason, where the acts charged
were the killing of the king or any direct attempt against his life or
whereby his life might be endangered or his person suffer bodily harm,
the person charged should be indicted, arraigned and tried in the same
manner as if he stood charged with murder. The Treason Act, 1945
amended the Act of 1800 to make it of general application to all cases
Capital punishment "Punishment of
death, awarded for treason and the capital felonies . . ."
Law "A law is an obligatory rule of conduct. The command of him or them that have coercive power (Hobbs); A law is a rule of conduct imposed and enforced by the Sovereign (Austin). But the law is the body of principles reorganised and applied by the State in the administration of justice (Salmond).
Ihering found the end of law in the delimitation
of interests; and Vinogradoff saw law as "a set of rules imposed and enforced
by a society with regard to the attribution and exercise of power over
persons and things."
Right "An interest recognised and
by the law, respect for which is a duty and disregard of which is a wrong
(Salmond). A capacity residing in one man of controlling, with the assent
and assistance of the State, the actions of others (Holland.)"
Obligation "A duty: the bond of
legal necessity which binds together two or more determinate individuals.
It is limited to legal duties arising out of a special personal relationship
existing, whether by reason of a contract or a tort, or otherwise between
two or more individual persons; e.g. debtor and creditor."
IV. The Muslim Conduct of State (6)
I would like to reproduce here below paragraphs 330 to 335 from Dr. Muhammad Hamidullah's "The Muslim Conduct of State" in order to elaborate further on this subject. It should be borne in mind that this book is a recognized authority on Muslim International Law and that the law of Apostasy is discussed in the International context:
"To wage war against apostates is justified on the same principle as that on which the punishment of a solitary apostate is based. The basis of Muslim polity being religious and not ethnological or linguistic, it is not difficult to appreciate the reason for penalising the act of apostasy, for it constitutes a politico-religious rebellion. The greater the harm of a given rebellion to a polity, the greater is the severity of repression. Every civilisation, not the least the modern Western one - both in the communistic and capitalistic manifestations - has provided capital punishment against violating the integrity of what it considers its very raison d'etre; and one cannot deny that right to Islam. As an independent organic community, Islam will have the liberty to determine what points should be dearer to it: colour of one's skin, language spoken by its subjects or ideology which animates its existence. As a passing remark, let us recall that the Byzantine law of the epoch of the Prophet also punished with death the apostasy from the Byzantine sect of Christianity. (paragraph 330)
Apostasy in Muslim law means turning from Islam after being a Muslim. Not only does it occur when a person declares his conversion to some non-Islamic religion, but also when he refuses to believe in any and every basic article of the Islamic faith. (paragraph 331)
The sayings and doings of the Prophet, the decision and practice of the Caliph Abu Bakr, the consensus of the opinion of the Companions of the Prophet and all the later Muslim jurisconsults, and even certain indirect verses of the Qur'an, all prescribe capital punishment for an apostate. In the case of apostasy, no distinction is made between a Muslim born of Muslim parents and a convert; and similarly there is no difference between accepting Judaism or Christianity, atheism or idol-worship or any other non-Islamic faith. Nevertheless, Muslim jurists emphasize that before prosecuting and condemning an apostate, it is necessary officially to discuss the matter with him and to remove his doubts regarding the soundness and reasonableness of the Islamic point of view in the matter concerned. Time is given him for reflection sometimes even for months before finally proceeding with the prosecution. There is no difference between a free man and a slave, as Sarakhsiy is explicit. (7)
In case an insane person, a delirious,
a melancholy and perplexed man, a minor, or intoxicated, one who had declared
his faith in Islam under coercion, and a person whose faith in Islam has
not been known or established were to become apostate, they would not suffer
the supreme penalty. So, too, an apostate woman, or a hermaphrodite, according
to the Hanafi school of law, would not be condemned to death, but imprisoned
and even physically tortured. An old man from whom no offspring is expected
is also excepted. (paragraph 333)
TREATMENT OF AN APOSTATE.
The apostate has to choose between Islam and the sword; he cannot be given quarter, nor will he be allowed to become a dhimmi, i.e. a resident non-Muslim subject of the Muslim State, on payment of the yearly protection-tax. (paragraph 334)
De jure he is dead. So if he does
not re-embrace Islam, and escapes to some non-Muslim territory, his property
in the Islamic territory will be distributed among his Muslim heirs as
if he were dead. In addition to this, the debts owed to him will be wiped
out if he has reached non-Muslim territory. This is what Mawardi says,
but I wonder why these debts should not be inherited by the heirs of the
renegade just like the rest of his property." (paragraph 335)
to Islam (8)
I will now refer to a very useful book
entitled "Introduction to Islam" by the same author. A thorough
reading of this book is highly recommended for good general background
information about Islam, particularly the chapter on "The Islamic Conception
of Life" (Par. 99 to 125). Paragraphs: 261-265; 118, 119, 440, 387, and
533 are particularly relevant. For ease of reference we are reproducing
these paragraphs separately in the Appendix.
In order to properly grasp the significance of why blasphemy/apostasy are treated as Treason, it is crucial to note that Islamic concepts of "State, nation/nationality," "citizenship" and "naturalization" are drastically different from these notions as we understand and routinely use them in the Western secular countries where they are defined as follows: a "nation" is defined as "a body of people recognized as an entity by virtue of their historical, linguistic or ethnic links; a body of people united under a particular political organization, and usually occupying a defined territory." And a "state" is defined as, "a self-governing political community occupying its own territory; a partly autonomous member of a political federation; the political organism as an abstract concept." Islam came to class these notions among the evil traits of humanity and tried to bring about a cure.(9)
What is the Islamic cure? Or to put it another way: How different then is the Islamic concept? To start with, the basis of the Islamic nationality is religious not political, ethnic, linguistic or regional.(10)
A common ideology is the basis of "nationality among the Muslims, and Islam is this ideology (11) and this Islamic ideology is a synthesis of the requirements both of the body and the soul.(12) After all, life in this world is but ephemeral, and there must be a difference between the behaviour of a man and a beast. (13) "Naturalization" (to grant citizenship) or "nationality" in Islam is a thing depending solely upon the will and the voluntary choice of the individual, not on an essentially ineluctable accident of nature.(14)
Islam rejects the narrow Western basis of birth and common blood, language, etc. as the element of solidarity called "nationality".(15)
A citizen, by definition, has rights and owes allegiance to the State howsoever defined. Under the secular, non-Islamic, Western way of life, based on political authority, a western citizen owes his allegiance to the political entity. In Islam a Muslim citizen owes his allegiance to a politico-religious entity which is based upon his religious ideology.
Now, one is likely to wonder what the concepts of state, religion, treason and apostasy have to do with blasphemy, and why is it necessary and even relevant to mention laws of Apostasy in the same breath. Without a proper background on the subject, it would be very difficult for a non-Muslim to understand the reasoning. Let me explain.
In Islam, contemptuous, irreverent speech or sacriligious acts, not only about God , but also about the Prophet Muhammad and all other prophets, and the members of these prophets' households, as well as the holy scriptures, including the Qur'an, and other things that are of a similar religious nature (i.e., which are regarded as sacred) are all acts of blasphemy. Muslims regard blasphemy to be as heinous a crime as apostasy. Since blasphemy is tantamount to apostasy, which in Islam is an act of political treason, (i.e. a crime against the state which is a capital offence) the punishment for blasphemy is the same as the punishment for apostasy. In other words, by committing blasphemy, a Muslim takes himself out of the pale of Islam and becomes an infidel, an apostate. As to the question of the severity of punishment for treason, we need only mention the fact that almost every country and every nation in the world regards Political Treason as a capital offence which calls for capital punishment involving forfeiture of life. In order to bring the differences and similarities of the two systems into relief, the following illustration may be useful: -
Kitab al-fiqh Ala' al-Madahib al-Arba'ah(16)
It is necessary to have evidence of two reliable witnesses corroborating each other before a Khazi (judge) shall be required to question the witnesses. Thereupon the witnesses will have to make statements describing the words uttered or the acts done which constitute apostasy.
Apostasy can be committed in two ways: (1) by uttering expressly by tongue that he is (or has become) a Mushrik , a polytheist (i.e. one who associates others with the One God and considers them to be worthy of worship) or, by saying something which is bound to connote in its meaning a denial of the existence of God, for instance to say that God has corporeal (physical, material) existence just like any other corporeal object, or (2) by the performance of an act in which one cannot avoid the clear conclusion that it is tantamount to 'kufr' (infidelity, denial of Islam), for example, to throw away with contempt the holy Qur'an or any part of it or even a single word of it; or to throw it in the fire in an insulting, contemptuous manner; or to throw it in such a place as a garbage dump where there are filthy, dirty and repulsive things; or in a spittoon etc. These acts would be blasphemous and constitute apostasy.
The same rules apply to the Most Beautiful Names of Allah as well as to books of Ahadith (Prophetic Traditions - i.e. records of the Prophet's sayings, doings and tacit approvals) and it would be considered blasphemy amounting to apostasy.
The same rules apply to books of Fiqh (Muslim jurisprudence) provided the acts are done with the intention of defaming or belittling with contempt the Islamic injunctions or the Islamic code of law. This would be regarded as blasphemy/apostasy.
Other examples of blasphemy/apostasy are:
• To believe in transmigration of souls or reincarnation because this amounts to rejecting the belief in life-after-death and the world of the Hereafter.
• To deny or reject something of which the whole Muslim Community (Ummah) is agreed upon, e.g. to hold that the obligatory ritual prayers or fasting are not obligatory or to deny legal permissibility (halal) of a thing on which the whole Muslim Community is agreed upon and which is definitely proven to be so on the basis of its proof from the holy Qur'an and Hadith mutawatir.
• To call names and use swear-words in respect of all such Messengers of God, Apostles, Prophets who are accepted as such by the whole Muslim Community.
• This same rule applies to angels.
• This same rule applies to angels and prophets with regard to fault-finding using taunting or derogatory or sarcastic language against them even in respect of their physical/bodily defects.
• To use sarcasm and belittling words in
respect of the moral character or the way of life (religion) of the Prophet
Muhammad or other prophets.
In dealing with the application of the Islamic penal system, first of all one has to try to understand its place within the Islamic legal framework as a whole or rather within Islam itself. It is well known that Islam provides a complete system for regulating every aspect of human life. The rules, obligations, injunctions and prohibitions laid down by or derived from the Qur'an and the Sunnah produce a complete picture of the Muslim community, from which no part can be removed without the rest being damaged. Equally no isolated part of this scheme, especially when taken out of context, can make any sense or be of any use. Mohammad S. al-Awa in his "Punishment in Islamic Law"(17) points out: "Within any legal system, the philosophy of punishment is an integral part of the system which cannot be understood or applied except within its principles, in order to protect the values recognized by it. If this is correct, and it is undoubtedly correct, then it must be completely wrong to borrow the penal philosophy of one legal system and adapt it to [or compare it with] another which is based on different principles and values ..."
The unquestioned reverence and legislative authority of the Prophet Muhammad has been acknowledged by the Muslims as the Messenger of God, and whatever he gave them in his lifetime, (i.e., commands as well as injunctions, in the name of his Sender, God), is accepted by the Muslims as indisputably final and most reasonable. The belief in the Messengers of God is useful even from the point of view of jurisprudence, in that the awe and respect and reverence towards them lead to the acceptance of certain fundamentals without any dispute. It is from this that other and further details may be elaborated. For this reason, the Muslim savants are very thankful to the generosity of God, for He gave men along with reason certain chosen human guides to help them in the conduct of life. These chosen ones pointed out God's commands (for He is the real Sovereign and Lawgiver) with regards to good and evil and with regards to their rights and the corresponding obligations.(18)
As to the technical terminology of 'hadd' (unalterable punishment) and "tazeer" (discretionary punishment) classification of punishments, according to Hanafi, Shafii and Zahiri(19) schools of law, the death penalty is a "hadd" punishment. The Hanbali and Malikki (20) do not classify it as "hadd" punishment. This difference of opinion arises mainly because of the different ways the grammatical imperative mood of the word 'kill' used in the Hadith may be interpreted. This punishment is based on a Hadith narrated by Ibn 'Abbas (Sahih Bukhari) in which the Prophet is reported to have said, "Whoever changes his religion, kill him." It is primarily on the strength of this Hadith that jurists have based their view that an apostate should be sentenced to death. Their work on the subject leads them to interpret the words, "kill him" as a grammatical imperative, (sighat al-amr), that is, an order which must be carried out. The jurists have held that the imperative, sighat al-amr, may be used in sixteen different ways. Some of them are: inimitability, recommendation, threat, permission and the literal meaning of the imperative which signifies a command or an order.(21)
Briefly, in the 'hadd' category of crime, the judge has no discretion to alter or reduce the prescribed punishment once the crime is proved. In the 'Tazeer' category of crime the judge has the discretion to impose the maximum (in the case of Blasphemy/Apostasy) death penalty or commute the sentence to life imprisonment or pronounce some other appropriate punishment, such as a fine, etc.
Hudud punishments prescribed by the command of the Qur'an or the Prophet are, of course, considered most reasonable, fair and justified in the eyes of Muslims. We would like to quote Paragraph 229 and 230 from the book Introduction to Islam,(22) in order to explain the nature of Islamic law and morality as follows: "Islam is based on the belief of Divine revelation sent to men through prophets as intermediaries. Its law and morality, even its faith, are therefore based on Divine commandments. It is possible that in the majority of cases human reason also should arrive at the same conclusion but essentially it is the Divine aspect which has the decisive significance in Islam and not the reasoning of a philosopher, a jurist or a moralist, the more so because the reasoning of different individuals may differ and lead to completely opposite conclusions. Sometimes the motive of discipline is found underlying an obligation and practice which is apparently superfluous.
One may divide human actions, first of all, into good and evil, represented by orders and prohibitions. The acts from which one must abstain are also divided into two big categories: Those against which there is temporal sanction or material punishment in addition to condemnation on the day of the Final Judgement and those which are condemned by Islam without providing a sanction other than that of the Hereafter."
It must, therefore, be particularly noted that except in cases of extraordinary gravity, the public authorities do not take cognizance of them and it is at this juncture that the discretionary system of punishment (tazeer) comes to play its role.
It should also be noted that Islam attaches particular importance to morality "in its ardent desire to attack the very sources of evil and not merely certain of its manifestations. Islam has imposed, recommended, or otherwise encouraged certain practices, which astonish us sometimes if we do not take into consideration their profound motives. All religions say that fornication and adultery are crimes, but Islam goes further and prescribes means to diminish these temptations. It is easy to hope that everyone would develop individual morality in order to resist the temptations; but it is wiser to diminish the occasions in which persons with weak characters - who constitute the majority of human beings - need to engage in a battle where defeat is a foregone conclusion."(23) Perhaps the very aim of human society is none other than controlling temptations and remedying the damage already done.
This is the position of Islam and Muslims with respect to law, morality, prevention of evil, and its system of punishment.
Now we shall look at what one knowledgeable Christian scholar says of the severity of Islamic punishment.
An Excerpt from "Preliminary Discourse", by Charles Hamilton, (24)
"This book treats only of the punishment incurred by crimes of a spiritual nature [i.e. the Hudud punishment], those instituted for offences against a person or property being discussed under their respective heads. The punishment for adultery is certainly severe, yet we will not, perhaps, be forward to condemn this severity, if we compare it for a moment with what is recorded in the twentieth chapter of Leviticus upon the same point - in fact, from the nature of the evidence required, it was next to impossible that the offence should ever be fully proved, even among the tents of the Arabs; so that the institution of the prescribed punishment was in a great measure nugatory, except in cases of confession by the parties. That those confessions were sometime made in the early days of Islamism, is a fact; and made, as they were, at the certain expense of life, they afford a wonderful instance of devoted zeal among the first followers of Muhammad. Still, however, even in those instances, every means that precaution could suggest is enjoined to avoid the necessity of inflicting the sentence . . ."
"Chapter IV containing the penalties of drunkenness, exhibits a degree of lenient indulgence with respect to that vice which we should scarcely expect to meet in a Mussulman law-book, as it hence appears that a man may offend in this way, even to a considerable degree, without any danger of legal cognizance. [See below: "Adhab"]Slander [accusing a person of unchastity.] As treated of in Chapter V, comprehends all expressions which may either affect the reputation of a man or a woman previously possessed of a fair character, of the legitimacy of their issue and the punishment has added to it, an effect equally just and politic, namely incapacitating the slanderer from appearing as an evidence. [witness] on any future occasion."
"Discretionary correction [Tazeer], which forms the subject of Chapter VI extends to all petty descriptions of personal insult, even to abusive language. In fact two-thirds of the punishment in Turkey, Persia, or India, are inflicted under the name of Tazeer."
We must not pass this book without noticing the extraordinary indulgence shown to slaves, in subjecting them, for all spiritual offences, to only half the punishment of freemen. The reasons alleged for this leniency manifest an uncommon degree of consideration and feeling for the state of bondage."
Adhab (= torment, suffering, punishment)
In the case of a transgression against
God, the punishment consequently being then a hakk Allah, a peculiar principle
in the law applies. God, it is supposed, is forbearing and, in fact, desires
not at all the punishment of the transgressor.
On the ground of this tradition, there
is a prescription in the Muslim law books that when the punishment is to
be considered as a hakk Allah the transgressor should hide his guilt as
much as possible and not confess it, and even when he
The witnesses too are recommended not to
testify to the detriment of the accused person, and it is meet that the
judge should show the latter all the circumstances extenuating his guilt
and the validity of revoking his confession. The judge
Only in the case of a punishment established
by the law (hadd) the judge has no choice and must execute the punishment.
With regard to the latter punishments even an intercession on behalf of
the culprit is not allowed, while otherwise it is
The following additional differences and distinctions between the Islamic and western ideologies, philosophies of life and legal systems (including systems of punishment) deserve particular attention: –
All civilized legal systems aim at combining the rigidity of their principles through the legislation of a set of rigid constitutional laws with the relative flexibility of the regular civil and criminal laws of the country. As to the ability of the Islamic system of law to adapt itself to the changing needs of society, Muslims are very particular in pointing to this unique aspect of their system which accommodates the changing needs of society. Muslims maintain that the Islamic system combines these two opposite aspects more successfully than those systems which are not based on Divine Law. The uniqueness of Islam lies in the fact that the Divine Law which includes a strict and severe regimen of punishment (i.e., Hadd punishments) is absolutely inflexible and unalterable, whereas the system of punishments falling under the category of Tazeer are very adaptive and very flexible because they accommodate changing needs in the continuous evolution of human society. Simply put, western constitutions are amendable, although with very rigid rules for very special circumstances. In Islam, however, the Shariah (i.e. the Qur’an and the Sunnah), which may be regarded as a parallel to the western style of constitutional law, is not amendable – period. The rationale for the extreme rigidity of the Islamic Shariah Law (i.e., the Qur’an and the Sunnah of the Prophet) which is distinct from the rest of the Muslim jurisprudence (Fiqh), is that the provisions of the Shariah deal with such matters that are of a universal and perpetual nature. These principles relate to the three basic unchanging human needs from the beginning to the end of time which relate to man’s physical, moral and spiritual aspects of life. Obviously these needs never require changing. Just as wholesome foods are necessary for physical nourishment so are good and virtuous deeds necessary for moral nourishment and a constant awareness of man’s position in the universe vis a vis his Creator is necessary for his spiritual nourishment.
Now to take a quantum leap from the 18th century to the present we will discuss current issues. To wit:
The predicament and promise of postmodernism is the subject of an interesting book, Postmodernism and Islam, by Akbar S. Ahmed, Professor of Anthropology at Cambridge University, England. Professor Ahmed also has written and produced "Living Islam," a six-part television series for the BBC England.(25)
In his book, Professor Ahmed says, "As Muslims, we will live in the postmodern world which is just beginning to shape our lives; therein lies the Muslim predicament: that of living by Islam in an age which is increasingly secular, cynical, irreverent, fragmented, materialistic and, therefore, for a Muslim, often hostile. However, postmodernism also promises hope, understanding and toleration - and this is where it connects with Islam. In an age of cynicism and disintegration, Islam has much to offer."
Professor Ahmed further asserts that the present encounter with its universal Western culture and pervasive technology, is perhaps the most forceful of onslaughts on Muslim civilization yet. Islam appears so threatened and vulnerable because it is so amorphous and because it appears in the most unexpected places. The TV and VCR in its character and origin, has become part and parcel of Western civilization. It needs no passport or visa for it can invade even the most isolated home and challenge the most traditional values.
According to Professor Ahmed, even a Muslim like His Highness the Agha Khan who is known to be sympathetic to the West and who scrupulously avoids political controversy, is concerned about the relationship between Islam and the West. He feels that the perception of Islam as a dark threat to order, is never far from the Western mind. The Agha Khan further says, "With Islam encompassing a large area of the world with significant populations, Western society can no longer survive in its own interest by being ill informed or misinformed about the Islamic world. They have to get away from the concept that every time that there is a bush fire, or worse than that, it is representative of the Islamic world. So long as they make it representative of the Islamic world itself, they are sending erroneous messages back. This is what I call a 'knowledge vacuum'. It is hurting everyone."
Professor Ahmed then states that "we cannot, therefore, even in our modern or postmodern age, ignore or disregard what traditionalists have believed to be necessary. More specifically, for the traditionalists, the larger message of Islam, rather than the narrower sectarian or personal quibbles, is of paramount importance. As a result they believe both in the universal message of God as well as in inter-faith dialogue.
Seyyed Hossein Nasr has pointedly underlined this same need in the following way: "There is also the very important task which lies ahead for Muslims to try to make peace on a theological level, not only on a political level, with other religions in the West, to extend a hand, which Islam has always done [in the past], to Judaism and Christianity and to other religions."
This need to create a better understanding in order to eliminate this 'knowledge vacuum,' assumes an even greater urgency in light of many recent developments. For example, consider the atmosphere which has surrounded the Rushdie affair and the enmity which it has created. An even more tragic example is the Balkan onslaught with its policy of 'ethnic cleansing.' These examples show how desperate is the need for communication and tolerance. Professor Ahmed says in relation to this need that, "even the hope and promise of the modern and postmodern era seem to be losing their appeal and any claim to tolerance, liberal-mindedness and laissez-faire, seems a hollow and spent force. 'To each his own thing' type of thinking, which was supposed to be changing the world, is not so in practice and reality."
"In their shrill intolerance of opposing voices, some of these labelled 'post-modernist' authors sound suspiciously like other more conventional authors of earlier times. We saw how lines were drawn in the Rushdie affair at many points, stereotypes negated and paradoxes created. Many staunch Christian priests were totally supportive of Muslims, while many liberal intellectuals sounded like Inquisition Priests in their shrill and blanket condemnations. In the one case, a millennium of hostility to Muslims was set aside; in the other, a century of liberal philosophy . . . In their emphasis on ethnicity, many postmodernist political movements generate racial violence which is as barbaric as any we know of from primeval tribal warfare. Ethnicity is the unprimed and potentially most explosive reality of human society, as we see in the disintegrating communist states. Its links with postmodernism are still to be discovered clearly. Muslims and Marxists slit the throats of fellow Muslims and fellow Marxists; ethnicity in these cases overrides larger ideological loyalties. Our age is littered with notorious examples."
Ayatullah Khomeni had condemned Salman
Rushdie because his book was considered blasphemous; the Pope condemned
Madonna for her provocative songs. As head of his respective religious
structure, each did what was expected of him by his followers. Any Muslim
cleric would have reacted to this book in the same manner as the Ayatullah;
any Catholic priest would have found Madonna's songs distasteful.
IX. The basic concepts
and special features
1. In the Context of the Islamic Law
[Law is defined as] "the science of the rights and obligations of man" - a definition attributed to Abu Hanifah. Muhibbullah al-Bihary (1109 A.H.) defines 'law' as : "the science of ascertaining religious commands (which embrace practically all the affairs of human life, material as well as spiritual) by means of their detailed guides. (By 'guides' he means authority or source of information).
For a definition of Law, Right and Obligation, and other terminology under the British Common Law system, see III. The Concise Law Dictionary.
One of the important features of Islamic law seems to be the emphasis on the correlation between rights and obligation. Not only the mutual relations of men amongst themselves, but even those of men with their Creator, are based on this same principle. One also has obligations as a member of the larger family viz the society and the State in which one lives. To speak only of the "rights of man," without simultaneously realizing his duties, would be transforming him into a nefarious beast, wolf or devil. Out of sheer necessity in civilized societies, legitimate constraints must be imposed upon man's rights. The nature and extent of various constraints and the shapes and forms which these limits assume in any given socio-political cum religious context, must always be a function of the dialectic between the rights and duties of the participants in this context. Consequently, the rights of individuals with regards to freedom of speech or expression, has to be balanced against the rights of other individuals to be protected from defamation, insults, slander and libel, etc. The same holds true with respect to the rights of all members of society vis a vis States, Sovereign rulers and the Real Sovereign, God - they all have to be harmonized in their own context. Obviously, then, when dealing with Islam or Muslims, one has to take into consideration the sensibilities of the whole Muslim 'Community'/ 'nation'/ 'Ummat' and their need for protection against harm, say for instance, through their rules of Blasphemy , which are framed on the basis of theirown philosophy of life depicted through their own perception and sensibilities with regard to sacrilege, desecration, defamation, slander, libel and so on. Therefore, in the case of Blasphemy, it goes without saying that the Islamic rules are obviously determined by Muslims on the basis of their own religious principles. As I have stated earlier, it is a universally accepted fact that although many different ethnic groups and races with a variety of colour, language and geographical origins are represented within Islam, as 'Muslims' (as those who follow the Islamic religious tradition) all these various ethnic groups and races are one people, one community, one nation, one Ummah vis a vis the rest of the world.(26) This principle is extended to all other religions and cultural groups.
According to Islam, as a consequence of this philosophy, despite the various ethnic racial and other differences, non-Muslims too are treated collectively as one people, one community, one nation, one Ummah vis a vis the Muslim community, technically known as Dar al-Harb.(27)
The fairness of this equal treatment results in what is commonly referred to as tolerance - in the real sense. And at the heart of this tolerance lies the basic principle of Muslim International law that: "In the affairs of this world, Muslims and non-Muslims are equal and alike." This principle of equality serves the function of a pivot. It is this point which balances all the detailed rules regulating the protection of the spectrum of legitimate interests of non-Muslim minorities - the 'protected' communities. As a result, it is not surprising to see that one of the characteristic features of Islam is the award of judicial, social and cultural autonomy to these communities. Islam permits and even encourages every group (Jewish, Christian, Magian or other) to establish their own tribunals presided over by their own judges who apply their own laws - without any interference from Muslim authorities. Such judicial autonomy is intended to encompass not only individual private matters (involving personal status) but for all the affairs of life: civil, penal, religious, cultural, etc. As far as issues of social and cultural autonomy are concerned, the safeguards of the rights of non-Muslims in Islamic territories so far as giving them liberty to practise customs that are entirely opposed to those of Islam. For instance, manufacture, importation, sale and consumption of alcohol, games of chance, marriage with close relatives, contracts that entail interest etc., are all permitted. After all, to establish liberty of conscience in the world was one of the aims and objectives of the Prophet Muhammad. However, to be more realistic, it is always useful to remind ourselves to distinguish between the 'Muslim Law' and the 'laws of the Muslims.'(28)
Closer to home, in Canada these are the
principles of the Islamic Law which correspond to similar principles in
the Canadian Charter of Rights and Freedoms which relate to: (1)
The Supremacy of God and the Rule of Law (Preamble); (2) Guarantee of Rights
and Freedoms (3) Fundamental Freedoms (4) Equality Rights; (5) Multicultural
2. In the Context
of Canadian law: The Canadian Charter of Rights and Freedoms
(1) The preamble in the Canadian Charter of Rights and Freedoms clearly states that "Canada is founded upon principles that recognize the Supremacy of God and the Rule of Law.
(2) It "guarantees" the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
(3) Section 2 sets out the Fundamental Freedoms; "everyone has the following freedoms: a) freedom of conscience and religion b) freedom of thought, belief, opinions and expression, including freedom of the press and other media of communication; c) freedom of peaceful assembly; and d) freedom of association.
(4) Section 15(1) sets out Equality Rights: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability."
(5) Section 27 on Multicultural heritage
states: "this Charter shall be interpreted in a manner consistent with
the preservation and enhancement of the multicultural heritage of CANADIANS"
(1) According to the Preamble of the Charter, "Canada is 'founded upon the principles that recognize the Supremacy of God and the Rule of Law." This "preamble" too must be interpreted in the light of Section 27 which makes it mandatory that "this Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."
Islam is and has been (even going back to the time of Confederation) a part and parcel of multicultural heritage and Muslim adherents have had the privilege of enjoying the status of 'Canadians'.
Because of the recognition of "Supremacy of God," Islamic law, which originates from the Divine Source of the Supreme Legislator, God, deserves to be recognized as a legitimate code under the Rule of which Law Muslims are constitutionally entitled to live and be recognized under Section 2(a): as to freedom of conscience and religion -- in the same way as Islam recognizes the right of non-Muslims to live by their own laws when living as minorities in a Muslim State (as mentioned under "Islamic Law").
As to the recognition of the "Supremacy
of God" under the Preamble of the Charter, when interpreted in the context
of the "multicultural heritage" provision of Section 27, let us pause here
for a moment and ponder on this point: are we in a position to go to the
ridiculous extent and say that, yes, we do recognise the Supremacy of the
Christian God, or the Jewish God, but not the Muslim God?! Then, what about
the de facto context of Canadian secularism. By definition secularism
is supposed to be neutral (neither in favour of nor against religion),
where does the God of the Preamble fit into this scheme of things?
(2) The Canadian Charter of Rights (Section 1) also requires that any reasonable limits on the guarantees of the Charter have to be demonstrably justified. It is our position that in view of the above arguments that the limits prescribed by Islamic law, with regards to blasphemy/apostasy, do satisfy both the Charter requirements. Namely (i) the Islamic limits are reasonable limits, and are (ii) demonstrably justified within the meaning of Section 1 of the Charter on these grounds: a) The provision of the Preamble regarding the Supremacy of God, b) the constitutional obligation to interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians, c) that over one billion people (Muslims) worldwide consider those limits to the freedom of speech/expression to be reasonable, d)(i)what such a large segment of the Canadian minority believes as a precept of their faith/religion ought to be fully recognized if the Charter's provision respecting freedom of religion are to have any real meaning. (ii) Adherence to Islamic principles in this context, ought to be accepted as sufficient enough to satisfy the Charter Requirement of demonstrable justification. Recognition of Islamic standards of reasonable limits on the freedom of speech by the Canadian courts does not necessarily entail any obligation to enforce the Islamic punishment for blasphemy/apostasy within the Canadian jurisdiction. The Muslims themselves (with the exception of the small Shi'ite minority) do not generally believe or insist on any extraterritorial rights to enforce Islamic Hadd punishment in non-Islamic countries. (See footnote 1, under II, Abingdon Dictionary of Living Religions).
Therefore, it seems logical and reasonable
that when dealing with situations which involve Islamic Blasphemy, the
Canadian courts, in all fairness, must also determine the issue of the
reasonableness of the limits on the freedom of speech and the issue of
demonstrable justification in accordance with the sensibilities of the
whole Muslim Community/Ummah. Muslims adhere to the Islamic religious
principles underlying their laws, which according to them, are legislated
under the very authority of the Real Sovereign, the 'God', Who is also
recognized by the Charter Preamble.
(3) Failing to do so will be a flagrant
breach of equality rights under Section 15(1) of the Charter. Because of
this failure, Muslims will not be given the equal protection and equal
benefit of the law and they will not be treated as equal before and under
the law. Indeed, Muslims will thus be discriminated against on the basis
of race, national or ethnic origin, colour and especially religion. All
such diverse people as those who follow the Islamic religious tradition,
despite their various race and ethnic origin are one people.
(4) Failing to interpret the guaranteed
rights and freedoms of Muslims, in accordance with the true spirit of multiculturalism
results in the effective denial of this fundamental philosophy of the Canadian
constitution. This is a tragic departure from that cherished 'tolerance'
(the real tolerance) which is the distinguishing quality of a cultured
people. The more tolerant a nation, the more cultured its people will be.
With this measure of cultural excellence, Canada does hold a place of honour
in the nations of the world and indeed we proudly stand head and shoulders
above so many other nations. What a sad thing it would be to not appreciate
the necessity of inculcating this multicultural philosophy into our daily
lives. How else can human beings become civilized enough to be able to
claim that they do actually respect other cultures and wish to co-exist
In view of this supreme law of the land, it would seem that when dealing with the issues of freedom of expression, the laws dealing with defamation, slander, libel, sacrilege, desecration, blasphemy and apostasy (in the context of the rights of the Muslim minority population living as lawful citizens of this country), not only our courts but also all our citizens are under a legal constitutional obligation to look into the matter in the light of the above essential considerations.
The Islamic Blasphemy/Apostasy issue cannot
be looked at or discussed in isolation or out of multicultural context
in that the religious beliefs of the Muslim population of Canada and their
way of life is an integral part of the multicultural heritage of Canadians.
The Maturing of Canada
(a) Phase One: from an ethnocentric, monolithic, unilingual society towards a bilinguistic, bicultural and multicultural society.
In Canada, a country with its longstanding bilingual and bicultural history, as well with its constitutional commitment to ethnic equality and multiculturalism, things seem to have come to a dead stop. When efforts are made to persuade the powers that be to implement the theory of multiculturalism, to put it into practice, one finds little evidence of any sincere measures. A great deal of heated debate and hot air is created in sheer rhetorical terms. This is all that one finds in plentiful measure.
In practice, the alleged liberal-mindedness of Canadians and their claim to world leadership as international brokers of peace and peace-keeping or as champions of fairness and equality, etc., etc., amounts to mere platitudes meant only for foreign consumption and packaged to please the ears of the international community.
To illustrate this point of view, let us take a closer look at the latest development in the Canadian constitutional arena. The Calgary Declaration recognizes the unique character or unique identity of Quebec society, and in the same breath, stresses that all Canadians and all provinces are equal. What is the basis of this wonderful arrangement/agreement? What do we find? We find that none of the participating leaders at the Calgary conference (or even during debates in the provincial legislatures for support of the declaration) deemed it necessary to give any serious thought to multiculturalism or attempt to create a supra-racial, supra-regional or supra-linguistic society. None of these leaders seemed to acknowledge the reality that the Canadian mosaic consists of a multiplicity of special and distinctive societies within Canada - not just Anglo Saxon and the French cultural societies. We do not seem to have fully overcome the unfortunate national trait, described by Keith Spicer in his fact-finding report on Canadian constitutional problems, as "the coast-to-coast terminal meanness matched by terminal bitterness in Quebec." But we have made some progress in expressing our generosity in acknowledging and accommodating the obvious distinctness of Quebec and its special needs. Is it not incumbent upon all Canadians to extend a similar generosity to that multiplicity of special and distinctive societies (other than Quebec) within Canada who have constitutional rights under the multicultural heritage provision to be treated equally along with the Quebec society. When it comes to granting that necessary extra, we cannot seem to overcome our 'traditional meanness' identified by Keith Spicer as one of the major causes of our constitutional problems. We act as though granting the same necessary extra to other cultural entities somehow diminishes the rest of us.
When it comes to identities, a person can
and does possess overlapping identities. In our modern age, this allows
the possibility of enrichment and pleasure. A person can be a devout Muslim,
Christian, Jew or of secular persuasion and still be a loyal citizen of
Canada. Multiple identities mean electicism which require tolerance of
others. Without some conscious attempt to comprehend the logic of this
formula, we reduce Multiculturalism to a meaningless shibboleth.
Two: from a multi-culture to a universal Culture - a natural evolution
of human society
To quote Marmaduke Pickthall, "the aim of culture is not the cultivation of the individual or a group of individuals, but of the entire human race. It aims at nothing less than universal human brotherhoods -- literary, artistic, linguistic and scientific achievements are regarded as the incidental phenomena of culture [and serve to act] as either aids to the end, or refreshment for the wayfarer."(29) In other words, as he further asserts, culture "aims not at beautifying and refining the resources of human life: it aims at beautifying and exalting human life itself.
Inherent in such a conception of culture it is the active principle of unity which is rooted in a shared framework concerning a progressive belief in the ideals of universal brotherhoods without distinction of race, religion, ethnic background, language or place of abode.
To paraphrase a passage from our publication, 'Oh! Canada: Whose Land? Whose Dream?' : 30 ,"The practise of universal brotherhood requires tolerance of differences. Tolerance can be helped to become established and to flourish by ensuring that there are an array of social, judicial, political, educational, and constitutional means of protecting, preserving and enhancing the autonomy of individuals and communities. This is especially true in relation to minorities who, because of their relative disadvantage of not belonging to the ethnic/racial/religious/secular majority, need to be treated as a "protected community" within the larger community. Indeed, governments have a duty of care to protect the legitimate interests of these "strangers," rather than forcing on them a culture of assimilation which is not conducive to the preservation of the identity and integrity of such minority groups.
In the context of the special cultural/religious needs of the Muslim community in respect of their beliefs about blasphemy, it indeed behoves a broad-minded people like Canadians to accommodate their (Muslim community's) needs by simply taking that extra step discussed earlier - this will not diminish the rest of us. Mutual respect, compassion and diversity will only help us grow together rather than apart. Surely it will be worthwhile to rise above the pettiness and the 'terminal meanness' of linguistic, regional, racial and narrowly defined cultural considerations. It is our belief that this sentiment is a living force among Canadians who are fast becoming aware of the futility of working with the handicap of tunnel-vision which tends to create blind spots at the expense of the broad supra-racial, supra-linguistic and supra-territorial peripheral vision which encompasses universal brotherhood.
For Muslims, Faith means Faith in the Unity of Reality which includes physical and supra-physical Nature. Consequently, it is a Faith in the unity and solidarity of Humanity which the Qur'an enunciates by saying that all human beings are the multiplication of one soul. It follows from this that all humanity is one social organism, and "Whoever slays a soul unless it be for man-slaughter [as a legalpunishment] or mischief in the land, it is as though he slew all men and whoever keeps it alive, it is as though he kept alive all men." [Qur'an 5:32] As a corollary of this belief an individual as a human being exists only as an integral part of a social organism; the injury to one part is an injury to the whole. Sa'di, the philosopher poet has interpreted the Qur'anic teaching in these words, "Human beings form one body and individuals are limbs and organs of it: when one part suffers, its painful effects must necessarily be felt by all other parts."
The efficacy of this universally accepted principle is in fact demonstrated ever so often in our daily lives. For instance, whenever a major natural calamity (eg. earthquake, flood, fire, or famine, etc.) occurs in some part of the world, people from all over the world rush in to help alleviate the sufferings of the unfortunate victims. This principle, which is applied in this example to suffering of a physical, material nature, must be extended in its application to similar devastating dimensions of the emotional injuries which are inflicted upon the victims of blasphemy. For nothing can cause more destruction or havoc to the universal tolerance of people especially with respect to religious matters than this despicable capital crime. In this respect, the realization of the oneness of humanity, is the highest point of morality and culture - a necessary condition of the well-being of man. Lack of information ('the knowledge vacuum') about the religious needs of Muslims results in the intolerance which prevails in the non-Muslim sectors of the Canadian population.
In this context and in this sense, a two-fold challenge for such non-Muslim sectors of Canada is how to expand the Western idealistic notions of justice, equality, freedom and liberty beyond their bounds to include all humanity, and secondly to reach out to those not of their civilization and openly extend the collective hand of genuine friendship. It goes without saying that in both cases a mutual understanding as well as a working relationship are essential. Obviously, this will only be possible if there is a universal tolerance of others among Muslims and non-Muslims alike, an appreciation of their uniqueness and a willingness to understand them. Muslims need not be seen as sulking strangers to complete the second phase of the maturing of Canada. In the next millenium, it is imperative that these sentiments become both personal philosophy and national policy.
It is our earnest hope that our efforts to fill in the 'knowledge vacuum' (which causes intolerance of other cultures) will enable Canadians at large to develop a heightened sensitivity to the needs of the Muslim community that resides within the larger multicultural Canadian community.
Similar sentiments seem to be expressed, perhaps in a somewhat different context, by Michel Montaigne. He says, "the souls of emperors and cobblers are cast in the same mould - the same reason that makes us wrangle with a neighbour causes a war twixt princes."
From Introduction to Islam, by Dr. Muhammad Hamidullah
440: Conversion "The Islamic law expressly
recognizes for non-Muslims the liberty to preserve their beliefs; and if
it forbids categorically all recourse to compulsion for converting others
to Islam, it maintains a rigorous discipline among its own adherents. The
basis of the Islamic "nationality" is religious and not ethnic, linguistic
or regional. Hence apostasy has naturally been considered political treason.
It is true that this crime is punished by penalties, but the necessity
scarcely arose as history has proved. Not only at the time when the Muslims
reigned supreme from the Pacific to the Atlantic Oceans, but even in our
own age of political as well as material and intellectual weakness among
Muslims, apostasy of Muslims is surprisingly non-existent. This is true
not only of regions where there is the semblance of a Muslim State, but
even elsewhere, under the colonial powers who have made all humanly possible
efforts to convert Muslims to other religions. Islam is gaining ground
today, even among Western peoples, from Finland and Norway to Italy, from
Canada to Argentina. And all this in spite of the absence of any organised
118: For reasons best known to Him, God
has endowed different individuals with different talents. Two children
of the same couple, two pupils of the same class do not always have the
same qualities or capacities. All lands are not equally fertile, climates
differ; two trees of the same species do not produce the same quantity
or quality. Every being, every part of a being has its own peculiarities.
On the basis of this natural phenomenon, Islam affirms, on the one hand,
the original equality of all, and on the other, the superiority of individuals
one over the other: All are creatures of the same Lord, and it is not material
superiority which counts for obtaining the greater appreciation of God.
Piety alone is the criterion of the greatness of the individual. After
all, life in this world is but ephemeral, and there must be a difference
between the behaviour of a man and a beast.
119: Nationality " It is in this sense,
that Islam rejects the narrow basis of birth and common blood as the element
of solidarity. The attachment to parentage or to the soil on which one
is born, is no doubt natural; yet the very interest of the human race demands
a certain tolerance towards other similar groups. The distribution of the
natural wealth in different parts of the world in varying quantities renders
the world interdependent. Inevitably one is forced to "live and let live";
otherwise an interminable succession of vendettas will destroy all. Nationality
on the basis of language, race, colour or birthplace is too primitive;
therein is a fatality, an impasse - something in which man has no choice.
The Islamic notion is progressive, and is based solely on the choice of
the individual. For it proposes the unity of all those who believe in the
same ideology, without distinction of race, tongue, or place of abode.
Since extermination or subjugation of others is excluded, the only valid
possibility is assimilation. And which means can serve better such assimilation,
if not belief in the same ideology? It may be repeated that Islamic ideology
is a synthesis of the requirements both of the body and the soul; moreover
it inculcates a tolerance. Islam has proclaimed that God has always sent
His messengers, at different epochs among different peoples. Islam itself
claims nothing more than the function of renewing and reviving the eternal
message of God, so often repeated at the hands of prophets. It prohibits
all compulsion in the matter of religious beliefs; and however unbelievable
it may sound, Islam is under the self-imposed religious dogmatic duty of
giving autonomy to non-Muslims residing on the soil of the Islamic State.
The Qur'an, the Hadith and the practice of all time demand that non-Muslims
should have their own laws, administrated in their own tribunals by their
own judges, without any interference on the part of the Muslim authorities,
whether it be in religious matters or social.
259: Nationality "One finds in human society, turn by turn, two contradictory tendencies: centripetal and centrifugal. On the one hand, separate individuals group themselves in wedlock, families, tribes, city-states, states and empires, sometime willingly and at other times under compulsion. On the other hand, descending from the same couple and ancestors, groups detach themselves from bigger units in order to lead separate and independent lives, away from their relatives; and this separation is occasioned sometimes amicably, for the purpose of finding the means of livelihood elsewhere and lightening the charge on locality too restricted to furnish food for all; while at other times it is dictated by passions, quarrels and other motives.
261: "At the dawn of Islam, in the 7th
century of the Christian era, differences and prejudices arising from race,
language, place of birth and other things had become the rule rather than
the exception; they developed deep-rooted notions, which grew to be almost
natural instincts. It was so everywhere in the world, in Arabia, in Europe,
in Africa, in Asia, in America and elsewhere. Islam cam to class these
notions among the evil traits of humanity, and tried to bring about a cure.
262: "The unifying ties of family, of clan,
and even of tribe proved too weak to serve the needs of defence and security
in a world where egoism and cupidity had rendered inevitable wars of everybody
against everybody else. But groups bigger than tribes were created sometimes
by the use of force by warriors and emperors. Failing however to create
an identity of interests among the totality of the subjects, these artificial
unions were constantly menaced by disintegration
263: "Without entering into the history
of the several thousand years of the development of this aspect of human
society, it would suffice to consider the idea of nationality prevalent
in our own time in order to illustrate the point. If nationality is based
on the identity of language, race, or place of birth, it goes without saying
that it will make the problem of aliens or strangers exist perpetually,
and such a nationality will be too narrow, ever to be able to embrace the
inhabitants of the entire world; and if the aliens are not assimilated,
there will always be the rise of conflicts and wars. In fact, the tie of
nationality is not a very sure bond at all. For two brothers may be enemies,
and two strangers, having a common ideology, may be friends.
264: "The Qur'an (30:22, 49:13) has rejected
all superiority on account of language, colour of skin or other ineluctable
incidences of nature, and recognizes the only superiority of individuals
as that based on piety. A common ideology is the basis of "nationality"
among the Muslims, and Islam is this ideology. We shall not speak of religions
which do not admit conversion. Among the religions of universal applications,
Islam distinguishes itself by the feature that it does not exact the refunction
of the world, but insists on the body and soul growing and operating simultaneously.
The past has shown that Muslims have assimilated this supra-racial and
supra-regional idea of brotherhood; and this sentiment is a living force
among them to this day.
265: "Naturalization is a feature now admitted among all "nations" but to be naturalized in a new language, in a new colour of skin, and in a new land is not as easy to adhere to as new ideology. For others, nationality is essentially an ineluctable accident of nature; in Islam it is a thing depending solely upon the will and choice of the individual.
432: "There is a tendency among a large
number of people to imitate and ape their governors and chiefs, in the
outer conduct of life, such as dress, coiffure, etiquette, etc. The result
is a superficial assimilation, which brings no advantage to the ruling
community, but which causes a moral damage to the classes which imitate
in a servile manner. In an Islamic State, non-Muslims constitute a protected
community (dhimmi). Therefore if it is the duty of the government
to protect the legitimate interest of these "strangers." Hence it is that
we see, during the 'Abbasid caliphate that, far from seeking the assimilation
of "strangers" by force, the government discouraged all imitation of one
by the other: Muslims, Christians, Jews, Magians and others conserved their
own modes of dress, their social manners and their distinctive individualities.
Only a total assimilation, through religious conversion, was sought, and
not a confusion of communities. This is proof enough that the measure had
nothing to do with the religious exigencies of Islam - and in the time
of the Prophet, there was absolutely no trace of it - but a condition of
life, suiting the social conceptions of the epoch: and its essential purpose
was to recognize, at the very first sight, the religious community of each
and every individual. The intention was to protect in this way the culture
of everyone, so that its intrinsic values and defects should come more
into relief. In passing, it may be repeated that the conception of nationality
in Islam is based neither on an ethnic source nor on place of birth, but
on the identity of ideology, i.e., of religion.
387: Obligations of women "In religious
matters, her first duty, even as that of man, is to believe in the oneness
of God, which is the only means of salvation in the Hereafter. One knows
that Islam has formally prohibited the use of compulsion to convert anybody
to Islam - and it may be recalled by the way that a non-Muslim wife of
a Muslim man has the full right to conserve her religion and to practise
it in her individual capacity in wedlock - and one also knows that inside
the Muslim community, a rigorous discipline is maintained for its conservation
as a whole and the preservation of its system of life. Treason in this
respect is punished: yet certain cases of the time of Orthodox Caliphs
show that the punishment of women on account of apostasy is less severe
than that of men.
533: "In the case of the conversion of a married man to Islam if his wife is Jewish or Christian and does not want to be converted with he husband, the marriage continues undisturbed. If the wife is of the prohibited categories, and persists in her irreligion, conjugal life must cease immediately; she should be given a reasonable time to think over, and in the final resort, divorce will have to take place.
4. The Hanafi school of law is based upon a Prophetic Tradition (Hadith) reported by 'Atiyah ibn Qais al-Kilaby (vide Sarakhsy, Sharha al-Siar al-Kabir, vol IV, 108). The Hanafi scholars rely on this Tradition: "The Prophet has said: 'Whoever commits murder or fornication or theft [in our territory] and escapes and then returns with permission, shall be tried and punished for what he wanted to escape from. Yet if he has committed murder, or fornication or theft in the territory of the enemy and came with permission, he will not be tried for what he committed in enemy territory." However, as to the enforcement of the law, the Sunnite and the Shi'ite schools of law operate on two different principles: the Sunnites exercise their enforcing authority/powers within the legal/geographical boundaries of their own jurisdiction. But under the Shi'ite law, enforcement powers can be exercised even in foreign lands, that is to say, beyond the jurisdiction of their own country. In other words, the Sunnites do not believe in extraterritorial jurisdiction, but the Shi'ites do.
As to the enforcement of punishment of an apostate and the pre-prosecution, pre-trial, and pre-conviction procedures, see the excerpt of paragraph 332 under the next heading of 'The Muslim Conduct of State' and Kitab al-Fiqh ala al-Madahib al-Arbaa'h
19. Collectively, it would be a fair estimate to say that they comprise an overwhelming majority of say 95% or so of the total Muslim population. No reliable statistics are available to this writer at the present time.
21. (Baydawi Minhaj al-wusul pp. 37-38); Nasafi, Manar al-anwar fil Usul al-Fiqh, pp. 24-29; Khallaf, Usul al-Fiqh, pp. 194-195. Examples of these forms of usage may be found in the first authority, i.e. Baydawi. vide Mohamed S. el-Awa, Punishment in Islamic Law, Indianapolis, MD: American Trust Publications, 1982.
26. Muslims consider themselves as comprising the Dar al-Islam, 'literally, "The Household or the Land of Submission" (and the rest of the world is regarded as Dar al-Harb, literally "The Household of the Land of Warfare"). According to the Radd al-Mukhtar, Vol. III, "Land of Islam is a country in which the edicts of Islam are fully promulgated.
28. This distinction is important in view of the fact that what the Islamic Law (Shariah) says, may or may not be, correctly incorporated into the local legislation of Muslim countries, mainly because of their own interpretations which is quite permissible under the Islamic System. The Muslim population living in such countries in effect have no choice but to follow the local, man-made laws. To be valid, these laws must be derived from and based upon the Shariah. They may be at variance in respect of the details of a secondary nature, (not in respect to the principles of law) with the pristine Islamic Law of the Shariah contained in the Qur'an and the Sunnah.
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