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Human Rights and Islamic Legal Reform PDF Print E-mail
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Research - Law
Written by Louay Safi   
Aug 11, 1998 at 08:00 PM
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Human Rights and Islamic Legal Reform
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Yet despite of the Qur’anic emphasis on the freedom of conviction and moral autonomy, most classical jurists contend that a person who renounces Islam or converts to another religion commits a crime of ridda (apostasy) punishable by death. However, because the Qur’an is unequivocal in supporting religious freedom,[38] classical jurists relied, in advocating death penalty for ridda (renouncing Islam), on two hadith texts, and the precedent of the Muslims fighting against Arab apostates under the leadership of Abu Bakr, the first Caliph.  This evidence is, though, shaky and does not stand under close scrutiny.  The two hadith texts reported in Sahih Bukhari state.  “Kill whoever changes his religion”, and “Three acts permit the taking of a person’s life: a soul for a soul, the adultery of a married man, and renouncing religion while severing ties with the community”.

Now both hadith statements cannot stand as credible evidence because they contravene numerous Qur’anic evidence.  According to the Maqasid approach, a hadith can limit the application of a general Qur’anic statement, but can never negate it.[39]  Besides, the hadith even contradicts the practices of the Prophet who reportedly pardoned Muslims who committed ridda.  One well-known example is that of Abdullah bin Sa‘d who was pardoned after Osman bin Affan pleaded on his behalf.  Ibn Hisham narrated in his Sirah that the Prophet pardoned the people of Quraysh after  Muslims entered Makkah victorious in the eighth year of the Islamic calendar.  The Prophet excluded few individuals from this general pardon, whom he ordered to be killed if captured, including Abdullah bin Sa‘d.  Abdullah was one of the few persons appointed by the Prophet to write the revealed texts.  After spending a while with the Muslims in Madina, he renounced Islam and returned to the religion of Quraysh.  He was brought to the court of the Prophet by Osman, who appealed for his pardon.  He was pardoned even though he was still, as the narration indicates, in a state of ridda and was yet to reembrace Islam.[40]  If ridda was indeed a hadd (sing. of hudud), neither Osman would be able to plea for him, nor the Prophet would pardon him in violation of the shari`a law.  Therefore, I am inclined to the increasingly popular view among contemporary scholars, that ridda does not involve a moral act of conversion, but a military act of rebellion, whose calming justifies the use of force and the return of fire.[41]

            To make things worse, classical jurists extended death penalty to cases of mis-interpretation of divine texts, or negligence of religious practices.  Thus classical jurists insisted that a Muslim who negates or neglects prayer could be executed if he does not repent within three days.  The vast majority of classical jurists maintained that it was not necessary for a Muslim to openly renounce Islam to be subject to death penalty.  Rather, it was sufficient for him to say or do something contrary to Islam to be executed.  Although jurists called neglecting religious duties or contravening orthodox interpretations zandaqa (heresy) rather than ridda, they treated both as equal in their severity.[42]  Interestingly, heresy punishment is not based on any Qur’anic or Prophetic texts, but on a faulty theory of right. 

The widely accepted theory of right among jurists divided rights into three types:[43]  (1)  Rights of God (Huquq Allah) —   These consist of all obligations that one has to discharge simply because they are divine commands, even when the human interests or utilities in undertaking them are not apparent, such as prayers, fasting, hajj, etc.; (2)  Rights shared by God an his servants (Huquq Allah wa al-‘Ibad) — These include acts that are obligatory because they are demanded by God, but they are also intended to protect the public, such as hudud law, jihad, zakat, etc., and (3)  Rights of God’s servants (Huquq al-‘Ibad) — These are rights intended to protect individual interests, such as fulfilling promises, paying back debts, honoring contracts.  Still people are accountable for their fulfillment to God.

            As it can be seen, the theory of right devised by late classical jurists – around the eighth century of Islam – emphasizes that people are ultimately answerable to God in all their dealings.  However, by using the term rights of God to underscore the moral duty of the individual, and his/her accountability before God, classical jurists obscured the fact that rights are invoked to support legal claims and to enforce the interests of the right-holder.  Because the Qur’an makes it abundantly clear that obeying the divine revelation does not advance the interests of God, but only those of the human being, the phrase “rights of God” signifies only the moral obligations of the believers towards God, and by no means should they be taken as a justification of legal claims.[44]  It follows that the rights of God which are exclusively personal should be considered as moral obligations for which people are only answerable to God in the life to come.  As such accepting or rejecting a specific interpretation or a particular religious doctrine, and observing or neglecting fundamental religious practices, including prayer or hajj, should have no legal implications what ever.  A legal theory in congruence with the Qur’anic framework should distinguish between moral and legal obligations, and should confine the latter to public law that promote public interests (constitutional, criminal, etc.) and private law that advances private interests (trade, family, personal, etc.).

            Unless the above legal reform is undertaken, there is no way to ensure that takfir (charging one with disbelief) and zandaqa (charging one with heresy) claims would not become a political weapon in the hands of political groups to be used as a means to eliminate rivals and opponents.  Indeed there is ample evidence to show that zandaqa and takfir have been used by the political authorities during the Umayyad  and  Abbasid dynasties to persecute political dissidents.[45]

 

RELIGIOUS EQUALITY AND MORAL AUTONOMY

We have already seen that the record of historical shari`a concerning the human rights of non-Muslims is mixed.  On the one hand, the shari`a recognized the rights of non-Muslims to enjoy equal protection of the law as far as their life, property, and personal security are concerned.  Non-Muslims also enjoyed the rights to freedom of conviction, and the right for self-determination as far as their legal and administrative conditions were involved.  On the other hand, classical jurists imposed a number of restrictions on non-Muslims in the area of dress code, display of religious symbols, the construction of churches in predominantly Muslim districts, the use of mounts and carrying of weapons, etc.[46]  I have already suggested that the restrictions imposed on non-Muslims do not stem from Qur’anic standards, but rather security concerns during the political turmoil associated with the Mongol and crusade invasions.   Therefore, the apparent indifference on the part of shari`a towards the civil and political rights of non-Muslims stems not from any insensitivities attributable to classical jurists, but rather to the literalist approach of contemporary traditionalist jurists.  Indeed, the literalist and imitative approach of Islamic traditionalism has been the main obstacle in the way toward evolving a human rights tradition rooted in Islamic sources.

            The first thing that strikes us when we study the Qur’anic texts is that the Qur’an neither confines faith and salvation to those who accept the Islamic revelation, nor deny faith and salvation to other religions.[47]  Indeed the Qur’an does not limit the attribution of faith and salvation to the People of the Book (Jews and Christians) but extend it to believers of other faiths.[48]    


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