SHAFAQNA – The brutal operations carried out by extremist Islamic groups have led to the resurfacing of the Islamic penal system, with Muslims, before others, widely criticizing these acts deemed as offending to Islam and contradicting to its spirituality. Among the said penalties included in the system is the penalty of killing the apostate, especially that many countries, such as Sudan and Mauritania, have issued this penalty lately against a number of people, including the young Mauritanian writer, Muhammad Sheikh Wild Muhammad. In the light of these events, we made an interview with His Eminence, Sheikh Hussein Al-Kheshen, in which we asked him several questions on the matter, knowing that he will soon publish a book that handles the issue of apostasy at length.
Following is the text of the interview:
Should the apostate be killed?!
Q: You have conducted a research on the issue of apostasy in which you concluded that there is no such thing as killing the apostate, would you explain more, especially that there is almost a consensus among the Muslims on killing the apostate?
A: After looking into the main legislative and doctrinal reference in Islam, the Holy Quran, we came to notice that it does not include any reference to the judgment of killing the apostate, although it did point out to the issue of apostasy in several Ayahs. The issue of apostasy, from the Quranic point of view, can be summed up in the following two points:
First: The Quran lacks any reference to the judgment of killing the apostate. As much as the issue is a matter of trial, considering that many cases of apostasy took place at the time when the Quran was revealed, and although many Ayahs talk about apostasy, yet they point out to the apostate’s punishment in the Hereafter, whereby Allah does not guide him or replaces him with other people or other repercussions caused by apostasy, we did not find any text that stipulates killing the apostate.
In this regard, I would like to cite a few Ayahs: “He who disbelieves in Allah after having believed, not he who is compelled while his heart is at rest on account of faith, but he who opens (his) breast to disbelief– on these is the wrath of Allah, and they shall have a grievous chastisement” (16:106), “On the day when (some) faces shall turn white and (some) faces shall turn black; then as to those whose faces turn black: Did you disbelieve after your believing? Taste therefore the chastisement because you disbelieved” (3:106), “Surely, those who disbelieve after their belief, then increase in unbelief, their repentance shall not be accepted, and these are they that go astray” (3:90), “How shall Allah guide a people who disbelieved after their believing and (after) they had borne witness that the Messenger was true and clear arguments had come to them; and Allah does not guide the unjust people” (3:86) and: “Whoever from among you turns back from his religion, then Allah will bring a people, He shall love them and they shall love Him, lowly before the believers, mighty against the unbelievers” (5:54).
Second: Some might say that there is a reference in the Holy Quran to refuting the punishment of killing the apostate, for some Quranic Ayahs insinuate that man cannot be killed except in two cases, and they are: the case of retribution or [spreading] mischief in the land”. The justification of killing someone is [slaying] a soul in exchange of other or [spreading] mischief in the land, for Allah says: “Whoever slays a soul, unless it be for manslaughter or for 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” (5:32). There are other Ayahs to this effect.
Q: But who can determine what mischief in the land is, for sometimes, a revolt against a corrupt regime might take place with the aim of changing it, and it goes without saying that the regime will deem such revolt as [spreading] mischief in the land?
A: This is a different topic of research. The mischief-maker in the land or the so-called warrior is the one who raises his sword against people and turns into a highwayman or someone who causes unrest and anxiety in the society by causing insecurity or seeking to overthrow the regime and change it by force and arms… etc. Such a person deserves punishment in all laws, even in secular ones, and no one might even think that such a person is not worthy of a punishment, even if it reaches the level of killing.
Q: What about the Ayah: “There is no compulsion in religion; truly the right way has become clearly distinct from error”, does it not negate the punishment of killing the apostate?
A: Research has led me to the conclusion that this Ayah is fit to confirm what I mentioned earlier that the Quran includes references that insinuate the negation of killing the apostate, because killing, as established by customs, is a form of compulsion. Therefore, threatening a person in case he changes his religion is a form of compulsion exercised on him to force him to remain on his previous religion, whereas the Ayah says that there is no compulsion in religion. There could be some objection as to how I deduced this conclusion from this Ayah, but I have answers to all such problematic issues.
Q: Is this Ayah considered abrogated?
A: This kind of Ayahs cannot be abrogated, for they are Ayahs whose causes have been explained, and therefore they can only be abrogated by abrogating the causes. The fact that there is no compulsion in religion is annexed to the cause that “truly the right way has become clearly distinct from error”, so abrogating it shall mean that the right is no longer distinct from error, and this cannot be accepted. So, this Ayah is not abrogated to say the least. Moreover, the opinion which says that this Ayah is not abrogated has become known now, and it is generally accepted.
The ruling regarding the apostate in Hadiths
Q: As you have explained, the Quran did not stipulate killing the apostate, but what about the Sunnah? There are certain Hadiths that the Muslims rely on to justify killing the apostate, and perhaps the mostly renowned is the following Hadith narrated on the authority of the Prophet: “If someone changes his religion (Islam), then strike off his head”.
A: This is one of the Hadiths attributed to the Messenger (p.), and it is narrated in Al-Bukhari’s “Sahih” and other sources. It is mentioned in the Hadith that Ali burned a group of people, and this act reached Ibn Abbass, who said: “Were I in his place, I would not have burnt them, for the Prophet says that ‘no one punishes with fire except the Lord of the Fire’ and I would have killed them – instead of burning them – for the Prophet says: ‘If someone changes his religion (Islam), then strike off his head’”. However, in my opinion, this Hadith is not authentic (reliable) for two considerations:
First: The Sanad (chain of authorities) of this Hadith brings about doubt, for its narrator, “’Akramah”, was one of the Kharijites who opposed Ali (a.s.), so his narration cannot be reliable or trustworthy.
Second: The content of this Hadith cannot be accepted, for is it possible that Imam Ali (a.s.) is not aware of a legitimate issue that the Prophet (p.) expressed, which is that “no one punishes with fire except the Lord of the Fire”, for Ibn Abbass, who is the student of Imam Ali (a.s.), to come and say that Ali has gone against the Messenger?! This increases our suspicion. Therefore, this cannot be accepted for it was not proven that the Imam has actually burnt someone. Indeed, there are other narrations resorted to by both the Sunnis and the Shiites in the matter of killing the apostate, but most of them, if not all, are subjected to discussions with regards to their chain of authorities or implications.
It is worth noting that when we want to derive a ruling by Allah and in His Name relying on a narration, we should take several criteria into consideration. First: The Sunnah should be established; i.e. the Hadith should be true and authentic, and here one narration is not enough, for one circumstantial narration, even if its Sanad is proved to be reliable, is not enough – according to some jurisprudents – which is the right opinion to rely on when issuing a religious ruling, especially in matters pertaining to blood. Rather, a narration should be reliable and narrated by several chains of authorities and narrators so as to be deemed trustworthy, and one would be assured that it is actually on behalf of the Prophet (p.) or one of the Imams (a.s.). Second: The narration should contradict neither the Quran nor the Sunnah. On the other hand, we ought to understand what does apostasy mentioned in the narrations mean: does it mean apostasy from Islam or apostasy (revolt) from the Islamic system. There are indications in the narrations to the second possibility.
This has been discussed at length in the book catering for this research, and which we ask Allah to enable us to publish soon, Allah willing.
The philosophy of the penal system
Q: Does the Quran overrule the Sunnah?
A: The Quran always comes in first, and it is narrated in a Hadith: “Whatever you are informed of as said by us, compare it to the Quran; if you find it in conformity with it, then follow it, if not, then ignore it”. Therefore, if we conclude from the Quran that there is no justification for killing except only in the cases of retribution and [causing] mischief in the land, and if we accept the idea that killing the apostate is an act of compulsion in religion, then this will constitute, at the very least, a negative element that prevents trusting narrations. Moreover, we have come to notice that some narrations that handle the issue of apostasy are fit to negate the ruling of killing the apostate, and this too constitutes a negative element that prevents trusting the narrations on killing.
Another point that ought to be discussed here with regards to the issue of apostasy and other similar issues that necessitate punishment is that supposedly we do admit these narrations, [a question cannot but be asked here]: was the judgment issued by the Prophet (p.) or the Imam (a.s.) in this regard an instantaneous and circumstantial measure or a legislative ruling? Can we say, and I am not being conclusive here, that these limits (punishments), specifically the punishment of apostasy, were instantaneous punishments or legislative punishments to which applies the rule “the Halal of Muhammad is Halal until the Day of Judgment and the Haram of Muhammad is Haram until the Day of Judgment”? Perhaps, we can find in the narrations several evidences which prove that this was an instantaneous sentence and not a legislative one.
Actually, this is backed by the philosophy of the penal system, for this system does not aim at retribution or revenge, but at preventing man from committing crimes and trespassing the law. We all know that the human societies are advanced even in their penal systems for it is aimed at reforming the society, and the closer the society is to savagery and nomadism, the more it is in need of a strict penal system, for man cannot be reformed except by the law. On the other hand, the more civilized, advanced and urbanized the society is, the better it is to alleviate the punishment. This is what we learn from the Holy Quran, whereby Prophet Jesus (a.s.) addresses the Jews, saying: “And to make lawful to you part of what was (before) forbidden to you” (3:50). The law of Prophet Moses (a.s.) was strict and firm, for the Children of Israel were uncivil, so reforming them required a strict and firm penal system. Following Prophet Jesus (a.s.) came Prophet Muhammad (p.) to say: “I was sent with the tolerable Shariah”, and this is the meaning I want to apply to the penal system.
Q: Who is entitled to apply the penal law?
A: There are narrations which say that the punishment is in the hand of the Imam, and the Imam is the symbol of authority. If there is no such authority, punishments cannot be executed, for such things cannot be left up to ordinary people, for that would create chaos and disorder. What is needed is a just legitimate authority.
Executing punishments offend the image of Islam
Q: Why is there a consensus among the Muslims on the issue of punishments and the necessity of executing them, and for which they offer justifications without taking into consideration the human developments and that executing punishments in this way offends the image of Islam?
A: I believe that the issue of apostasy is one of the topics that ought to undergo a comprehensive Ijtihadi research in the light of the legal texts and the objectives of the Shariah, especially that we are in an age where executing these punishments result in reactions by some Muslims, let alone non-Muslims of different religions and human rights organizations… etc.
Many Muslims are raising their voices in protest against some forms of punishments that are executed in the Islamic world, such as stoning and the like, and we ought to convince them of this penal system, but I believe that the justifications offered by a group of intellectual scholars to justify killing the apostate are not convincing. Some mentioned that killing the apostate aims at protecting the religion and people’s beliefs, for allowing apostasy will shake these beliefs…
|I believe that such justifications are not conclusive, for Islam is not that weak at the level of the arguments and proofs it provides to feel that it should be protected by force and beheading people. Whether we feel it or not, they are justifications that embody the belittlement of Islam and suggest that its arguments are weak. Moreover, it embodies taking the Muslims lightly, for I do not believe that [limited] cases of apostasy here and there will drive the Muslims to collectively abandon their religion or doubt their beliefs. Thousands of Christians abandoned their religion, yet this did not lead to the end of Christianity which rather survived and persisted strongly, and so did Islam.||The justifications of killing apostates are not conclusive, and they embody the belittlement of Islam and suggest that its arguments are weak.|
I also believe that this logic of justification might not be of any help to those jurisprudents who adopt the ruling of killing apostates, for someone might raise a problematic issue and say: If your justification to killing apostates is protecting the people’s beliefs, then some might say that killing apostates will enhance the tendency to [follow] hypocrisy, for many, out of fear of being killed, might adopt disbelief therein and reflect Islam on the outside. And hypocrisy, in some of its features, might be far more dangerous and worse than disbelief, for a disbeliever will constitute a clear and declared enemy, while a hypocrite will hold grudges and scheme plots against Islam from the inside, and this will lead to bigger damage than the damage caused by the disbeliever who announces his disbelief and revolt against Islam.
Therefore, I do not believe that the logic of justification is good enough to justify the punishment of the apostate; rather, we ought to look for the evidence to find out: is there conclusive evidence on killing the apostate or not? We can say: what is certain in the implications of the narrations on killing the apostate has to do with the apostate whose apostasy is accompanied with revolting against the general order, and not the apostate whose apostasy only reflects his non-conviction in one of the principles of religion.
Developing the Islamic penal system
Q: What about developing the Islamic penal system and reconsidering it in the light of the secular law?
A: I believe that there is a possibility to develop the penal system in Islam, and I believe in the legitimacy of all the questions brought up from within the Islamic circle with regards to the issue of stoning for example, and they are all questions that are not out of the context of the known rules of deriving Fatwas, for there is nothing that stands in the way of putting up for discussion the issue of the instantaneousness of the punishment of the apostate or stoning the adulterer/adulteress. Moreover, such questions ought to be handled in a scientific manner away from the psychological pressures created by the media or the pressures exerted by many states and organizations. As such, the possibility of developing the other acts of punishment can be brought up, and actually some jurisprudents did propose something in this regard which was deliberated in the Hawzas under the question: Can we replace some disciplinary punishments with financial penalties (fines), for it is not preconditioned that the punishment be physical in all cases? I believe that there are indications in the texts that support the possibility of coming out with a conception that allows developing the penal system in Islam in lots of its details, yet not comprehensively. One of the most important elements that is useful in this regard is the attempt to perceive lots of the connotations in the penal system as instantaneous and circumstantial measures that can be replaced with other things. We are concerned with asking questions and thinking in a new way that does not go out of the context of the known mechanisms of understanding the religious texts. Some might see my propositions and words as unusually bold, but I believe that I can theorize for them through the recognized mechanisms of Ijtihad.
In this context, a question might be raised: What is the purpose of the penal system? Indeed, it is not meant to torture people and retaliate upon them.
The penal law in the Islamic legislation, just as in other laws, is a deterrent force that aims at maintaining stability, organizing the society, preventing chaos and putting an end to crime and whatever the Shariah deems Haram. Therefore, if there are any other means that realize this goal, besides physical punishment, why do we not adopt them? In the same sense, today if we notice that killing the apostate will lead to results opposite to what is aspired, so instead of protecting the beliefs of people it leads many Muslims to doubt their religion and even apostatize, can we not then freeze this punishment?
It is mentioned in some narrations that the punishment should not be executed in the battlefield so that the person targeted would not join the enemy and apostatize. Supposedly the Ijtihad does not help us in changing a certain punishment entirely and in considering that it is but an instantaneous and temporary punishment restricted to a certain time, but if we come to notice that the reputation of Islam will be tarnished as a result of insisting on applying it especially in public in a way that exceeds the damage that can be caused by not applying it, can we not then freeze it on the basis of the rule of competition and priorities or the so-called secondary considerations that might be considered and demand freezing some punishments and avoiding to apply them to preserve what is more important and of a higher priority.
Therefore, I released a call and a cry to discuss these issues within the academic circles boldly and seriously. We might find that there is a huge possibility to renew the Ijtihad of what is enlisted under the penal system in Islam, without departing from axioms or necessities.
|Let such phenomenon be a positive shock that hits the Islamic thought to drive it to reconsider a lot of its findings|
Terrorism and Islam’s reputation
Q: How do you regard the reflections of the acts committed by the extremist Islamic groups especially with regards to reconsidering many religious issues?
A: Despite the tragic scene, I look at the future with optimism and hope. The reason is that even if the extremist phenomenon known as ISIS offends Islam [in the time being], [there is a window of opportunity] for Allah says: “It may be that you dislike a thing while it is good for you” (2:216). Let such phenomenon be a positive shock that hits the Islamic thought to drive it to reconsider a lot of its findings, and let the Muslim contemplate and ask himself: Is this the image of Islam we want? It is worth noting that ISIS, in some of its actions and behaviors, is applying some jurisprudential rulings found in the Fatwas of both Sunni and Shiite jurisprudents. Therefore, instead of [just] criticizing these groups and defaming them, go back to the Islamic texts and come up with new rulings, or else it is better to stop objecting on those who are applying these rulings [without doing anything]!
I see good in this reality that is filled with actions and that is occupied with problematic issues registered to the detriment of Islam, for they must drive the Mujtahids to offer solutions, find answers and present Islam in a way that is viable in this age. The answers should be convincing to the Muslims before anyone else, and not indisputable and unquestionable ones. If the Muslim Mujtahid or “legislator”, so to speak, does not come across such a reality, he will not be able to reconsider, renew and develop the Ijtihad.
I see a lot of ongoing mobility in the academic institutes, and I am not pessimistic. Perhaps now amid these sectarian and confessional ambiences and the prevalent struggle, these actions do not show, but there is a movement in this regard that seems slow at times and accelerating at others. Some might give opinions that are regarded by some as unfamiliar and out of the context, but with time, we might realize that such opinions are getting more and more acceptable until they become the most acceptable opinions religiously even by those who were objecting on them not long before that.
Source: The website of the Islamic Contemporary Thought Institution