REPORT – Definition of Islamic Law and the Crime of Apostasy in Islam

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SHAFAQNA – Shari’a is generally defined as “Islamic religious law.” The vast majority of Iranians are followers of Twelver Shi’a Islam, and Shi’a Islam is Iran’s official state religion. In Shi’a jurisprudence, Shari’a law derives its rulings from four sources: the Qur’an, sunnahijmā and aql. The first, and most important, is the Qur’an itself. Considered to be God’s revelation, the Qur’an contains laws that have been incorporated into Shari’a law. The second source is sunnah, which can be understood as the collective actions of Prophet Mohammad, his son-in-law Ali, and eleven of Ali’s descendants, known as Imams. Sunnah is based on oral traditions related from the life of Prophet Mohammad, Ali, and his eleven descendants. These oral traditions are referred to as hadith, and they constitute the basis for the majority of rulings in Shari’a law. The third source is aql, which can be translated as “intellect” or “reason.” Shi’a jurists have different views regarding aql and the degree to which it should be relied on as a source for resolving jurisprudential questions. The fourth and final source of Islamic law is ijmāʿ, which means the consensus of Islamic scholars.

It is worth noting that there are significant differences between Sunni and Shi’a interpretations of Shari’a law. Sunni jurisprudence differs from Shi’a jurisprudence in two important respects. First, Sunni jurists use qiās instead of aqlQiās involves the process of legal analogy, in which old cases are used to solve new problems. The second important difference is that in Sunni jurisprudence, use of hadith is limited to the sayings and actions of Prophet Mohammad, and it does not extend to his descendants.

Apostasy, or irtidād, is recognized as a major sin and a punishable crime in both Shi’a and Sunni jurisprudence. Riddah, the Arabic root word from which irtidād is derived, literally means “turning back.” Murtad, the Arabic term for an apostate, means one who turns back.

A charge of apostasy can be based on one’s mere intention or belief, utterance, or action. In general, denying the fundamentals of Islam is considered as apostasy. But, there is some disagreement as to what concepts are considered Islamic fundamentals. While belief in the existence of God and the belief in the Prophet Mohammad are understood to be among the fundamentals, jurists have come to different conclusions regarding other Islamic precepts. For instance, Allāmih Majlisī has stated that fundamentals of Islam are concepts or laws that are familiar to all Muslims except new converts. However, Moqaddas Ardabili has stated that any religious belief that has been accepted by a Muslim can be considered a fundamental belief, and its rejection by that person could result in his or her apostasy. It is very important to note that years before the Iranian Revolution, Ayatollah Khomeini held a different view regarding fundamentals of Islam. In Al-Tahara, which was written in 1954-58, Ayatollah Khomeini stated that believing in God, Mohammad’s prophethood, and “possibly” believing in the afterlife are all that is necessary for being considered a Muslim. He further stated that if a person believes in the above but does not believe in Islamic laws due to some doubts, that person is still a Muslim.

One of the key differences between Sunni and Shi’a beliefs raises another jurisprudential issue. For Shi’a Muslims, the infallibility of the Shi’a Imams is an established principle. Sunni Muslims, however, do not hold this view. Some senior Shi’a clerics such as Ayatollah Sadeq Rohani believe that denying the infallibility of the Shi’a Imams qualifies as apostasy. Applying this view, a Shi’a Muslim who decides to become a Sunni could potentially be charged with apostasy. This view is not shared by all Shi’a jurists.

Some jurists hold that even having doubts about Islamic principles could be grounds for apostasy. For instance, Ayatollah Mesbah Yazdi, an influential Iranian cleric, has stated that having doubts over the concept of amr bi ma’ruf, or commanding others to good deeds, could lead one to become an apostate because doubting this principle is tantamount to denying the essence of Islam.

As discussed in Section 2.1. infra, Iranian law neither explicitly criminalizes nor defines apostasy. Consequently, there is no uniform definition that can be used in apostasy cases.

 

1.1. Apostasy in the Qur’an

The Qur’an does not explicitly prescribe the death penalty for apostasy. A number of verses in the Qur’an, however, have been interpreted to mean that apostates should be killed. Verse 2:217 has often been interpreted as prescribing the death penalty for an apostate. This verse states, in part, “And if any of you turn back from their faith and die in unbelief, their works will bear no fruit in this life and in the hereafter; they will be companions of the fire and will abide therein.” Fakhreddin Razi, the renowned Sunni theologian (1149-1209), interpreted this verse as stating that an apostate should be killed. The operative phrase is “their works will bear no fruit in this life.” As the contemporary Iranian cleric Ayatollah Mohammad Javad Fazel Lankarani explains, Razi held the view that all of the apostate’s good deeds are null and void. Accordingly, an apostate’s life can be taken because his life is no longer of value. To support this view, Lankarani cites a hadith by Imam Sadeq, the sixth Shi’a Imam, who is reported to have said that protection of a person’s blood, marriage and inheritance are contingent on him having declared his faith in God and the Prophet Mohammad.Therefore, an apostate who recants his belief in Islam could be considered to have relinquished his life, his marriage and his inheritance. Lankarani insists that the phrase “their works will bear no fruit in life” means that in addition to voiding all the apostate’s good deeds in the afterlife, a punishment in this world is also required by the Qur’an because an apostate’s life is no longer to be “respected.”

Ayatollah Lankarani also relies on another portion of verse 2:217 to make his argument. This verse also states, “Tumult and oppression are worse than slaughter.” Given that murder is punishable by death, he argues, it is reasonable to assume that inciting dissent or disorder should also be punishable by death. Lankarani argues that apostasy is understood as a form of tumult or sedition, and as such, the Qur’an supports the death penalty for apostates.

Another verse from the Qur’an on which Ayatollah Lankarani relies to establish the death penalty for apostasy is verse 2:54: “And remember Moses said to his people: ‘O my people! Ye have indeed wronged yourselves by your worship of the calf: So turn (in repentance) to your Maker, and slay yourselves (the wrong-doers); that will be better for you in the sight of your Maker’ Then He turned towards you (in forgiveness): For He is oft-returning, most merciful.” Ayatollah Lankarani argues that God commanded that Israelites who had turned away from God and become apostates should be killed. Although this verse involves Moses and the Israelites, Ayatollah Lankarani argues that based on the concept of istiṣhāb, a preexisting command that has not been superseded or voided still stands. Therefore, he argues, this verse supports the death penalty for apostates in Islam as well.

Verse 5:33 is yet another Qur’anic verse cited in support of the death penalty for apostasy. This verse states, “The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the hereafter.” Ayatollah Lankarani quotes Sheikh Tousi (996-1067), a prominent Shi’a jurist, as saying that this verse was revealed to the Prophet Mohammad regarding a tribe who had first become Muslim but then became apostates. Ayatollah Lankarani also looks to verses 48:16 and 3:85 in his argument for Qur’anic support for capital punishment in cases of apostasy.

Numerous Islamic scholars contend that the Qur’an does not support imposing the death penalty for apostasy. A treatise by Mohsen Kadivar discusses apostasy and the death penalty in detail. Verse 2:256 states, “Let there be no compulsion in religion: Truth stands out clear from Error: whoever rejects evil and believes in Allah hath grasped the most trustworthy hand-hold, that never breaks. And Allah heareth and knoweth all things.” Kadivar argues that the enjoinment against compulsion in religion expressed in this verse means that individuals should be free in both accepting and leaving Islam. Ayatollah Seyyed Hossein Sadr, a Shi’a cleric based in Iraq, has also stated that Verse 2:256 was revealed to the Prophet Mohammad regarding Muslims who had converted to Christianity, and that the Prophet Mohammad advised against forcing them to return to Islam.

Verses 10:99 and 11:28 are among other passages that Kadivar relies on to make his argument. In addition, Kadivar points out that while several verses in the Qur’an declare that apostates will be punished in the afterlife, the Qur’an does not prescribe any punishment that should be carried out on earth.

 

1.2. Apostasy in Oral Traditions

It can be argued that without support from oral traditions, or hadith, there would be little basis for sentencing apostates to death on the Qur’an alone. Numerous sayings attributed to the Prophet Mohammad and Shi’a Imams, however, have formed the foundation of Islamic jurisprudence on this issue for centuries.

One of the most cited hadith from Sunni sources regarding apostasy is a saying attributed to Prophet Mohammad, where he is quoted as saying, “Whoever changes his religion, kill him.” Several versions of another often cited hadith quote Prophet Mohammad as saying that the blood of a Muslim man cannot be spilled unless under three circumstances: if he commits apostasy, if he kills another person, or if he commits adultery.

Shi’a jurists also rely on numerous hadith to reach a similar conclusion. An important hadith is from Imam Mohammad Baqer, the fifth Shi’a Imam, who defines an apostate as someone who repudiates Islam and denies that which has been revealed to the Prophet. According to this hadith, an apostate’s repentance will not be accepted, and he must be put to death. As a consequence of his apostasy, his wife is also considered to be divorced from him, and his property will be distributed among his heirs. In another hadith, Imam Mousa Kazem, the seventh Shi’a Imam, states that a Muslim who converts to Christianity should be killed. In yet another hadith, Imam Ja’far Sadeq, the sixth Shi’a Imam, is quoted as saying that a person who had claimed to be a prophet should be put to death. In addition, according to three hadith attributed to Imam Sadeq, there are at least three instances in which Ali, the first Shi’a Imam and the fourth Caliph, killed individuals who had committed apostasy.

According to Kadivar, the oral traditions stating that apostates should be put to death are not reliable, and they should not be the basis for Islamic jurisprudence on the issue of apostasy.

 

1.3. Difference Between Murtad-e Fitri and Murtad-e Milli

Shi’a jurisprudence makes a distinction between an apostate who is born to Muslim parents (murtad-i fitri) and an apostate who is born to non-Muslim parents (murtad-i milli). According to jurists such as Ayatollah Khomeini, the repentance of apostates born to Muslim parents cannot be accepted. Therefore, such apostates are to be killed. Even if only one of the parents is a Muslim at the time of conception, that person is considered to be a Muslim. An apostate who is not born to Muslim parents is considered to be a murtad-i milli. Such an apostate will be given a chance to repent, and he is only to be executed if he does not repent. Some jurists have held that a murtad-e milli should be given a three-day period to repent, and he should be killed if he refuses to repent after three days. In contrast, Sunni jurisprudence does not recognize any distinction between apostates born to Muslim parents and those born to non-Muslim parents.Therefore, Sunni jurists hold that all apostates should be given the opportunity to repent.

 

1.4. Differences in Penalties Imposed on Men and Women

Based on a number of oral traditions attributed to Shi’a Imams, Shi’a jurists believe that female apostates are not to be killed. Ayatollah Khomeini states that a female apostate is to be imprisoned for life, beaten at times of prayer and afforded only a small amount of food. If she repents, she is to be set free. Sunni jurists have differing opinions regarding female apostates. Some hold that female apostates can only be imprisoned, but others believe that female apostates should be put to death if they refrain from repenting.

 

1.5. Swearing at the Prophet in the Qur’an

The Qur’an does not specify a punishment for swearing at the Prophet. The verses on this topic generally discuss consequences in the afterlife. For instance, 9:61 states,

Among them are men who molest the Prophet and say, “He is (all) ear.” Say, “He listens to what is best for you: he believes in Allah, has faith in the Believers, and is a mercy to those of you who believe.” But those who molest the Messenger will have a grievous penalty.

Verse 33:57 also pertains to swearing at the Prophet. This verse states, “Those who annoy Allah and His Messenger – Allah has cursed them in this world and in the hereafter, and has prepared for them a humiliating Punishment.” Hence, although swearing at the Prophet is decried as reprehensible, the Qur’an does not provide for specific punishment for such an act.

 

1.6. Swearing at the Prophet in Oral Traditions

There are a number of oral traditions that form the basis for issuing the death penalty in cases of swearing at the Prophet. One hadith attributed to Imam Sadeq quotes the Prophet Mohammad as saying that anyone who hears a person swear at the Prophet is obligated to kill him. Likewise, a ruler who is informed that a person has sworn at the Prophet is also obligated to kill him. Another hadith attributed to Imam Hossein, the third Shi’a Imam, states that a person who swears at the Prophet should be killed by the person who is the closest to him before the matter is referred to the local ruler. Mohsen Kadivar argues that this particular hadith is the only relatively reliable oral tradition prescribing the death penalty for swearing at the Prophet. Kadivar notes, however, that this hadith is not proven to be authentic, and that Shari’a law cannot impose the death penalty for swearing at the Prophet based on only one such hadith

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