AN EXPLORATION ON THE MECHANICS OF PROPHECY AND ITS RELATIONSHIP TO HUDUD – PART TWO

Fiat justitia

 

Relevant Topics:

2.1 Hudud and Shari’ah: what do they mean?

2.2 On Apostasy

2.3 Quantitive Invariability

– Final Thoughts

– Bibliography

 

2.1 Hudud and Shari’ah: what do they mean?

Lexically, hudud translates to ‘boundaries’ or ‘limits’ of land. The singular of hudud is hadd. Technically however it has many meanings. In the Qur’anic sense hudud is the plural for the restrictive dictum of God which is not to be transgressed (Haleem, 1991). In fiqh, hudud are fixed penalties that are tied to certain crimes such as theft, adultery, Apostasy, etc. Of these last few mentioned, I will be taking a look at apostasy in particular.

The term ‘shari’ah has become a very common word when referring to Islam to the point that it has become a defining characteristic when first thought of mentioned. Yet, according to Tariq Ramadan, it has become one of ‘the worst defined and most misunderstood terms today, not only by Muslims themselves, but also by virtually everyone who enters onto contact with it’ (Ramadan, 2017, p. 145-146). The literal meaning of the word translates to something more along the lines of ‘the path that leads to a source of water’, and by extension ‘the path to be followed’’ (Ramadan, 2017, p. 146-147). The term would eventually come to have evolved meanings depending on who was using it based off of an understanding viewed through the Lenses of their respective fields e.g. Jurists would view it through legalistic means. Scholars of the fundamentals, philosophers and mystics would view the term in their own variances according to their own expertise. Of the three times that the word ‘shari’ah’ is mentioned in the Quran, it refers specifically to the act of following a path ’in order to aspire to salvation: the way of fidelity to the Source’ (Ibid).

2.2 On Apostasy

The choice to write on apostasy rises out of the fact that some of the scholars mentioned in ‘part one’ were accused of abandoning or distorting faith/religion in heretical ways. For example, Nasr Abu Zayd, whose works on hermeneutics and the Qur’an had ultimately led to an exile from Egypt (Najjar, 2000); Fazlur Rahman whose works were also viewed as heretical; and Abdolkarim Soroush’s ideas were met with opposition in Iran (Soroush A, 1998). What is of note here is that none of these scholars had declared apostasy and always maintained that they were Muslim, albeit with differing perspectives that seem to transcend the traditional concepts of understanding the religion. The unfortunate opinions that befell these intellectuals, regardless of their positions on faith, is one that is vague at best and most likely politically motivated, in particular that of Abu Zayd which seems to have been governed based on the principles of Egypt’s judiciary as oppose to that of an Islamic one (Berger, 2003). The ruling of apostasy as a hadd punishment is not based on textual Qur’anic parameters but was developed later by legal scholars from other textual sources.

The rulings on apostasy i.e. the punishment, are, and by necessity, based on whether a person is mature and in full possession of their faculties with complete control over their abilities to make clear and concise judgments of conviction (The Quran even makes reference to maturity being at the age of 40, the age of decision (Q 46:15)), and after having apostasised, begins or joins in a crusade against Muslims that is physically aggressive (i.e. an act of war) rather than intellectually driven, as the latter can be contested in likewise fashion. If such an act of aggression has a clear intent to harm another human being that is the course of action adopted by an apostate i.e. an intentional adversarial act played out without just cause against a state (that needs to be a Muslim state), then it is responded to as an act of treason which in most countries today is carried out with the prescription of the death penalty as pointed out by Muhammad Kamali in reference to a hadith narration that prescribes the death penalty (Kamali, 1997) (On a narration by Ikrima,…according to the statement of Allah’s Apostle, “Whoever changed his Islamic religion, then kill him” (Bukhari). However, the mere act of apostasy in and of itself carries no such penalty and, scripturally, is made abundantly clear that the apostate is to be left to choose of their own accord whether to revert back to faith or not to their dying day.

The rulings on apostasy, for or against the death penalty are, oddly enough, based on the same tradition. What differentiates each argument is that they are based on hermeneutical approaches that interpret each verse with a different lense. While the wording of the Qur’anic verses do not change, the understanding of them has been somewhat at odds. There are some Islamic theologians and jurists who claim that the penalty of death for the act of apostasy is to be found in the verses of the Qur’an whereas others assert that this is in fact not the case and that there is no mention of a death penalty in said verses. It should be noted also that the term irtidad, the word used for apostasy in the Qur’an is used only twice (Q 2:217, 5:54) in this regard and has no mention of a death penalty attached to it and the apostate is almost certainly absolved of a death sentence (El-Awa, 1982, p. 50). Any mention of a penalty for the act of apostasy is to be meted out in the hereafter by God alone and not in the temporal world. The penalty for apostasy it would seem, does not have its source in the Qur’an but in the hadith narrations, since as we have noted, the Qur’an itself, while mentioning apostasy, does not set out a specific earthly punishment. When comparing the tone of the Qur’an and the hadith side by side it seems that there is a difference in spirit as to the approach taken; one deals in being patient while the other is swift in judgement. In defense of hadith, it should also be noted that there are narrations where people have openly left the religion of Islam and the prophet (PBUH) neither punished nor persecuted them (Sahih Bukhari, vol. 9, hadith no. 316: A Bedouin gave the pledge of allegiance to Allah’s Apostle for Islam and the Bedouin got a fever where upon he said to the Prophet ‘Cancel my Pledge.’ But the Prophet refused. He came to him (again) saying, ‘cancel my Pledge.’ But the Prophet refused. Then (the Bedouin) left (Madina). Allah’s Apostle said: ‘Madina is like a pair of bellows (furnace): It expels its impurities and brightens and clears its good.’Another example is Sahih bukhari Vol. 4, hadith no. 814).

After the prophet’s (PBUH) death there was an issue regarding some tribes of the Arabian Peninsula who had seemingly apostatised because they refused to pay the compulsory zakah tax. The companions of the Prophet (PBUH), including ‘Umar, the second Khalifa of Islam, had advised Abu Bakr (the first Khalifa) to instead lift the tax for a period of one year in order to consolidate the tribes and then reintroduce it at a later stage. When the leaders of the tribes were brought to Abu Bakr they denied the charge of apostasy affirming that they were still Muslim but would no longer pay the zakah tax; possibly because they did not recognise him as the successor to the prophet (PBUH). What is of note here is the fact that even this early on, the companions that had spent time with the prophet (PBUH) were not in full agreement or were unsure as to the approach of how to deal with an apostate or what constitutes as apostasy. What seems to be the general consensus is that Abu Bakr needed to quell any uprisings or defection in order to secure the Muslim rule that would eventually allow for further expansion (North, 1994). Some of this doubt can be gleaned from a narration by Abu Hurraira who related that:

“Abu Bakr said, “By Allah! If they (pay me the Zakat and) with-hold even a she-kid which they used to pay during the life-time of Allah’s Apostle, I will fight with them for it.” ‘Umar said, “It was nothing but Allah Who opened Abu Bakr’s chest towards the decision to fight, and I came to know that his decision was right”  (Bukhari)

It seems that from ‘Umar’s response he was not entirely sure as to whether the decision of Abu Bakr to fight was the correct one. However, with the outcome of the situation that was in favor of the Muslims  ‘Umar took this to be a sign that they were on the right path. After all, everything is clear in hindsight…

During the first few centuries of Islam the rulings on apostasy were elaborated upon by scholars of the legal fields. These rules not only belonged to the penal system but the civil ones as well (Vries, 1976-1977). While the enforcement of this ruling has not been adhered to; possibly due to a lack of real agreement as to whether it is a punishable offence or otherwise, it has seen its fair share of resurgence over the years since it has never been completely revoked. A major issue with the legal rulings on apostasy has been whether or not these laws are in fact compatible with the spirit of the Qur’anic pronouncement “Let there be no compulsion in religion” (Q 2.256). One of the more prominent Qur’anic exegetes, Ibn Kathir (d. 1373) also seems to have the opinion that goes in opposition to the death penalty. In the exegesis of Ibn Kathir he explains this verse as (Q, 2:256):

“Do not force anyone to become Muslim, for Islam is plain and clear. Therefore there is no need for anyone to embrace Islam. Rather, whoever Allah directs to Islam, opens his heart for it and enlightens his mind, will embrace Islam with certainty. Whoever Allah blinds his heart and seals his hearing and sight, then he will not benefit from being forced to embrace Islam”  (Kathir, 2000)

Ibn Kathir also relates a hadith narration from Imam Ahmad (d. 855) in which the prophet (PBUH) is reported as saying to a man “embrace Islam”. The man said, “I dislike it.” The prophet said “even if your dislike it” (Kathir, 2000, p. 31). What is relevant here is that the prophet did not force this person to become a Muslim but suggested that it would be in his benefit since God would grant him “sincerity and true intent” (Kathir. 2000, p. 31). There is no forced conversion or death penalty, merely an open invitation. If this is the understanding of ‘no compulsion’, from where did the decree of death for apostasy come then?

Classically, the term riddah, which is translated as apostasy, has been defined as turning away or severing ties with the Muslim faith and a murtad is translated as apostate (Vries, 1976-77); the person whom, by birth or conversion, was a Muslim and then for whatever reason decided to leave of their own accord. The manifestation of apostasy is through the apparent unbelief of a person that is expressed through words or actions, and according to the Shafa’i school, intention also (Vries, 1976-77). Some things that are considered acts of apostasy include but are not limited to: speaking out against Allah, calling the Qur’an or parts of it false, asserting the createdness of the Holy Scripture etc. Whilst these rules seem fairly straight forward, there are a certain number of factors and criteria that must be taken in to account before a person’s apostasy can be accepted as legally binding.  A person can only produce a true act of apostasy out of their own free will, they must be in full maturity and in control of their full mental faculties; all of which must be established after it has been proven that the apostate was in fact a clear adherent to the Islamic faith prior to their renunciation. There is also a difference of opinion as to how long a person should be given to revert back to the faith by different schools of thought that range from three days, a month, to an indefinite period; in the case of it being a lifelong option, it cannot then be in the legal arena (O’Sullivan, 2001).

The punishment for the act of apostasy, once it has been established, has been determined to be death. However, the view that this is considered a hadd punishment must be under contestation as there is no substantial account that can verify whether it should be viewed as a criminal act and placed under the roof of capital punishment. There have been some reserved opinions on this matter from the Hanafi and Malaki schools as to whether this issue is to be viewed as hadd (Vries, 1976-77), yet this does not seem to stop certain opinions from either school arising that pertain to the issue. For example, that a woman, by virtue of being a female is spared the death sentence but must be subjected to confinement and beatings until she decides to re-affirm her faith. Also, a woman’s deferential nature to her husband absolves her of any real independent judgment in the eyes of jurists (Vries, 1976-77). The Quran itself has passages that contradict the concept of death for apostasy:

Those who believe, then disbelieve, then believe again, then disbelieve, and then increase in their disbelief, Allah will never forgive them nor guide them to the path’. (an Nisa, 4:137)

The above verse from surah An Nisa would strongly imply that apostasy and reversion can happen many times in a person’s life. However any form of reversion would be cut short in case of death. What can be understood from this verse is that a person should be given the opportunity to revert in and out of faith without fear of punishment in this temporal world.

‘Let him who wishes to believe, do so; and let him who wishes to disbelieve, do so’ Al Kahf, 18:29

From all the above verses we can extrapolate certain key points a) that a person must be willing in their own acceptance of faith b) that there can be no form of compulsion or coercion in to that faith c) if a person leaves their faith they must be given every opportunity to revert up to the point of their own natural death without any temporal punishment meted out by Islamic law.

Another verse that strongly suggests that punishment for apostasy is only for the hereafter and not the temporal world is in chapter sixteen of the Qur’an:

“Whoever disbelieves in Allah after his belief… except for one who is forced (to renounce his religion) while his heart is secure in faith. But those who (willingly) open their breasts to disbelief, upon them is wrath from Allah, and for them is a great punishment” (Q, 16:106)

What we can see here is that the penalty for apostasy, as mentioned before, is only within the domain of God and that there is no room for interpretation to say that a death penalty can be extrapolated from this verse as pointed out by S. A. Rahman who clearly sees this as a non hadd offence (Rahman S. A., 1978, p. 46).

2.3 Quantative invariability

One of the issues we find with the concept of hudud is the concept of “quantative invariable” punishment. That is to say, a fixed penalty for a given crime i.e. death for apostasy or stoning for adultery. It would seem that reading from the Qur’an itself, the ‘invariable’ must instead change to ‘variable’ as there is no real sense of a fixed penalty. To illustrate further, we can look at two verses from the Qur’an which read:

A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them if any do transgress the limits ordained by Allah, such persons wrong (Themselves as well as others) (Q, 2:229)

So if a husband divorces his wife (irrevocably), He cannot, after that, re-marry her until after she has married another husband and He has divorced her. In that case there is no blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah, which He makes plain to those who understand (Q, 2:230)

The term “hudud Allah” is used in these two verses (translated as ‘limits ordained by Allah’) a total of six times and in each instance there is no mention of a punishment whether directly or indirectly but rather alludes to a more moral context that may itself allude to a somewhat legalistic implication. What is also relevant here is the usage of ‘equitable terms’ or, as understood by Fazlur Rahman, ‘good custom’, must be variably flexible since what was thought of as ‘equitable terms’ or ‘good custom’ in seventh century Arabia is not necessarily so in twenty first century Europe.

Rahman also points out verses twelve and thirteen of the fourth chapter of the Qur’an which reads:

And unto you belongeth a half of that which your wives leave, if they have no child; but if they have a child then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, hath been paid). And unto them belongeth the fourth of that which ye leave if ye have no child, but if ye have a child then the eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (ye may have contracted, hath been paid). And if a man or a woman have a distant heir (having left neither parent nor child), and he (or she) have a brother or a sister (only on the mother’s side) then to each of them twain (the brother and the sister) the sixth, and if they be more than two, then they shall be sharers in the third, after any legacy that may have been bequeathed or debt (contracted) not injuring (the heirs by willing away more than a third of the heritage) hath been paid. A commandment from Allah. Allah is Knower, Indulgent (Q, 4:12)

Those are limits set by Allah: those who obey Allah and His Messenger will be admitted to Gardens with rivers flowing beneath, to abide therein (forever) and that will be the supreme achievement (Q, 4:13)

But those who disobey Allah and His Messenger and transgress His limits will be admitted to a Fire, to abide therein: And they shall have a humiliating punishment (4:14)

While verse twelve deals with how to treat orphans and inheritance, the latter two speak of hudud or the “limits set by Allah” whose rewards or punishments are specifically set for the hereafter and not in the temporal world. Rahman urges the reader to contemplate that the Qur’an is more concerned with the moral and spiritual health of the community rather than with the legalities that may lead to such penal punishments. While he separates the Qur’anic verses from the hudud of the fuqaha (experts in jurisprudence) he acknowledges that a system of law is still needed to govern the community, and that system of law is left to said community to formulate, but based on the moral framework that the Qur’an has laid out in its examples. The “hudud Allah” are in the realm and power of Allah alone and are not to be literally implemented by people who would be the deliverers of God’s wrath as he states “undoubtedly mistaken are those who claim to take the law of God in their own hands and seek to implement it literally” (Rahman F, 2011).

To drive the argument further and more clearly in regards to “quantative invariable” punishment we need look no further than chapter fifty eight of the Qur’an, al Mujadilah. Verses two to four read:

If any men among you divorce their wives by Zihar (calling them mothers), they cannot be their mothers: None can be their mothers except those who gave them birth. And in fact they use words (both) iniquitous and false: but truly Allah is one that blots out (sins), and forgives (again and again) (58:2)

But those who divorce their wives by Zihar, then wish to go back on the words they uttered,- (It is ordained that such a one) should free a slave before they touch each other: Thus are ye admonished to perform: and Allah is well-acquainted with (all) that ye do (58:3)

And if any has not (the wherewithal), he should fast for two months consecutively before they touch each other. But if any is unable to do so, he should feed sixty indigent ones, this, that ye may show your faith in Allah and His Messenger. Those are limits (set by) Allah. For those who reject (Him), there is a grievous Penalty (58:4)

The verses deals with the pre-Islamic utterance of zihar in which a husband declares his spouse to be no longer sexually available to him by likening her to his mother. This is clearly viewed in the verse as ‘iniquitous and false’. However, what is of note is the way in which the punishment, which is more like kaffarah (penance or atonement) is dealt with. In the first instance the freeing of a slave is what makes for atonement. However if this is not a viable option then a penance of a sixty day fast is prescribed on the husband. Furthermore, if he is unable to fast for the duration of the sixty days then he is to feed sixty “indigent ones”. It stands to reason then, as Rahman points out, that there may well be a situation where the feeding of sixty individuals is not possible, therefore the circumstances of the individual must be taken in to account and further variable options optioned since the Qur’an itself sets down different circumstances in which it is possible to atone and give penance. In this instance we have a clear picture of scripture setting a precedent or moral framework that gives more regard to the moral, ethical, religious aspect rather than simply a legally set punishment.

Returning to the premise mentioned earlier, that the Qur’an is more concerned with spiritual and moral aspects rather than law, Arkoun states that the law is not clearly defined in the Qur’an and that it had to be developed in to a working system by the judges who would use it as a source of juridical decisions (Arkoun, 1988, p. 73).The alteration from the Qur’anic discourse to the legal one “resulted in a radical transformation of the notion of revelation”. By overlooking the symbolic nature of some of the verses, the jurists, judges, and theologians paved the way for a more literal reading that would “elaborate an explicit, denotative, normative code of rules for administrative and governmental purposes” (Arkoun, 1988, p. 73).

Final Thoughts

One of the possible, and more likely reasons, as to why Muslim theologians did not pay much mind to the mechanics of revelation is quite simply because it was not important or integral to the message itself (Saeed, 1999). It is the Word of God that matters; the communication and message that is delivered from above that reveals God’s Will to the people on the created plane of existence is what matters, not the means by which it is communicated. Essentially, it is the message that counts, not the paper it is written on or the typewriter.

Any attempts to reinterpret the Qur’an to make it seem more human or to conform to a modern audience will inevitably change its essence. To humanize the message of God, i.e. to place the prophet as composer or influencer to its production will possibly certainly change its message and shape. The Qur’an itself gives no evidence as to indicate that the prophet had any influence in its production nor do any hadith narrations. Ultimately then, rethinking revelation in order to make its authorship more human will not necessarily help us to advance a reinterpretation of the Qur’an.

Whenever people…claim that Scripture is a work of man not distinguishable in origin from other human literary productions they do not merely influence our understanding of Scripture, but ultimately change the whole shape of our religion” (Weeks, 1988, p. 29).

Reinterpretation of the Qur’an should not need to bring its author down to a humanistic level. Reinterpretation should be based on the messages context in which it was revealed. Using the message and its contextual surroundings we can then use that as a model or blueprint to be applied to a modern framework that is more relevant to the advances of the modern world. Even using the large body of hadith literature or biographical accounts of the prophet (PBUH) and his companions we can see that the early adherents had a great degree of flexibility with regard to interpretation and at times had differing opinions. ‘Quantative invariability’ must be revised to ‘quantative variability’ in order to fully realize the flexibility that is in favor of a more rational system of justice that takes context in to consideration as oppose to a set in stone penal code that can be unforgiving and harsh in certain environments because of its atomistic lens.

The rise of a shari’ah system with hadd punishments had evolved over time due to a shift in perception, regard, and need from the moral and ethical framework of revelation to one that was more concerned with administration and the setting up of government. If the message and spirit of the Qur’an is to survive and move on it needs to be moved away from the juridical arena and returned to its original spiritual origin. One of the reasons the Qur’an was embraced early on was because of its moral stance and ability to pierce the heart. Once it was used as a legal tool to shape government and policy it shifted from being a spiritual guide to a more juridical one. If anything, the ruling on apostasy and the establishment of hadd laws was a means to allow a small but rapidly expanding religion to continue to do so without fear of losing its numbers and establishing a functional government system; a sort of ‘scarecrow’ to keep potential threats at bay (Ahmad, 1989). But the scripture is clear in it’s statement that it is protected by the Almighty, thus there is no need for such a ruling and never has been.

The Eccentric Seeker

 

 

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Ramadan, Tariq. (2017), Islam: The Essentials, Pelican Books

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Scan the QR code or copy the address below into your wallet to send some Litecoin:

Donate Monero to The Eccentric Seeker

Scan to Donate Monero to The Eccentric Seeker
Scan the QR code or copy the address below into your wallet to send some Monero:

Donate ZCash to The Eccentric Seeker

Scan to Donate ZCash to The Eccentric Seeker
Scan the QR code or copy the address below into your wallet to send some ZCash:
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