City of Brass

As occurs regularly, a fantastic discussion has been unfolding at Talk Islam, initially about the comments by the Harvard muslim chaplain on the matter of the death penalty for apostasy. The story begins with a private email from the chaplain, Taha Abdul-Basser, in response to a question about the matter, which ended up getting forwarded around in typical outrage recruitment fashion. The full response is worth reading in full, but here’s the core comment by Abdul-Basser:

The preponderant position in all of the 4 sunni madhahib (and
apparently others of the remaining eight according to one contemporary
`alim) is that the verdict is capital punishment.

Of concern for us is that this can only occur in the domain and
under supervision of Muslim governmental authority and can not be
performed by non-state, private actors

Note that the bold emphasis was in Abdul-Basser’s original. In a nutshell, he is simply relating the position of the dominant madhabs (schools of thought) – and they agree that the death penalty can only be applied by the State, not individuals. 

Note that this is highly analogous to the death penalty for treason in western countries. In fact, as Abdul-Basser points out, the analogy to treason is made explicit and used as an argument for why the death penalty no longer can be applied:

Some contemporary thought leaders have emphasized the differing views (i.e. not capital punishment) that a few fuqaha’ in the last few centuries apparently held on this issue, including reportedly the senior Ottoman religious authority during the Tanzimat period and Al-Azhar in the modern period. Still others go further and attempt to elaborate on the argument that the indicants (such as the hadith: (whoever changes his religion, execute him) used to build the traditional position apply only to treason in the political sense and therefore in the absence of a political reality in which apostasy is both forsaking the community and akin to political treasons in the modern sense, the indicants do not indicate capital punishment.

Let’s be clear here – in the modern era, the dominant muslim religious authorities either do not consider the death penalty as a valid punishment for apostasy, or argue that the question is moot in the absence of the muslim State. 

Of course, Iran and Saudi Arabia are Islamic States and in both countries it is illegal and very dangerous to be an apostate. Being extreme autocracies, they tend towards the most repressive interpretations in all matters, with apostasy no exception. Pakistan does not have a law against apostasy as far as I am aware, though Islamic parties do repeatedly try to get one passed. In Afghanistan, the new constitution guarantees freedom of religion, but that’s hardly worth the paper it is printed on in practice since the government is so weak (and Karzai is not above sacrificing those rights to curry favor with Islamists). As Wikipedia notes, though, the danger to apostates in most of the muslim world is not from governmental authority but by individuals acting on their own initiative, often encouraged by radical imams. The bottom line is that the jurisprudence of centuries is not very relevant in today’s fractured, post-colonial muslim world, with radical individuals rather than moderate States engaging in interpretation and policing of Shari’a. Who said the Gates of Ijtihad were closed? 

Given the reality, Abdul-Basser’s response was technically accurate but irresponsible in terms of how he worded it, especially with the concluding comment:

I would finally note that there is great wisdom (hikma) associated with
the established and preserved position (capital punishment) and so,
even if it makes some uncomfortable in the face of the hegemonic modern
human rights discourse, one should not dismiss it out of hand. The
formal consideration of excuses for the accused and the absence of
Muslim governmental authority in our case here in the North/West is for
dealing with the issue practically.

I had actually contacted Abdul-Basser intending to give him an opportunity to clarify his comments, but he declined. The phrase, “hegemonic human rights discourse” is deeply troubling because it implicitly rejects the basic notion of universal human rights. Freedom of faith and conscience is a key human right that has solid precedent and grounding in Islamic sources as well as Western roots. I reject the notion that human rights are “values” which may be fluid between human societies. It’s precisely this attitude that has permitted modern Islamic states to drift so far from the established jurisprudence.

My fellow contributor at Talk Islam (and author of the initial post) also had issues with Abdul-Basser’s phrasing, commenting:

I see in Abdul-Basser’s comment insufficient safeguard against
violence. His comment was weighted and preferential of capital
punishment, and therefore permissive. It is not a benign discourse. My
rant is that someone in such a position should be trying harder when
discussing such an issue to put a boundary around it.

That’s a great critique, though it should be noted that Abdul-Basser was replying to a private email and not making a public statement, so there’s some benefit of the doubt we should extend. 

However, where I see the real problem is in Abdul-Basser’s comment about there being great “wisdom (hikmah)” in capital punishment. This is really an endorsement by him of the power of the State to retain the power to execute its own citizens, which the Western world also shares. As the federal law of the United States explicitly states

“…whoever, owing allegiance to the United States, levies war against
them or adheres to their enemies, giving them aid and comfort within
the United States or elsewhere, is guilty of treason and shall suffer

it’s the “aid and comfort” clause that is the key – who defines what that means? Ultimately, the State itself. So an Islamic State might define treason as “apostasy”, whereas Great Britain once defined it as “the act, by a Welshman, of stealing cattle”. Today, apparently, the United States defines it as “appearing in a video”. My point here is not that these are equivalent actions, but to illustrate how the power to execute, once granted to the State, can be abused. Once we give the state the power to execute us, the specifics are no
longer under our control. Thats the downside of giving the state that
power. The state has no rights; it has power. Citizens surrender power
to the state by allowing it to execute some, thus the state can take
that power and expand it as it pleases.

In that sense, there is indeed a hegemony of human rights discourse, which manifests as a  double standard whereby states in the third
world are essentially forbidden and judged for doing exactly what the
more powerful west has long done. The death penalty in the United States, the rationalization of civilian deaths in Afghanistan as merely “collateral damage”, the collective punishment of the residents of the Gaza Strip, all are examples of how a State claims the right to kill. Discussion of that double standard is wholly absent in human rights discourse when the West lectures the rest of the world, but the rest of the world is keenly aware of it. 

All of these issues aside, there’s been quite a lot of venom directed at Abdul-Basser for these comments. Science fiction author S.M. Stirling actually chimed in on the thread, castigating Abdul-Basser:

Freedom of religion is an absolute and may not be abridged by any
government. Any government which attempts to do so is, itself,
illegitmate and has no right to exist.

the proper response is simple: strip Mr. Taha
Abdul-Basser of his position, blacklist him from any other institution
in receipt of public funds, and (metaphorically speaking) ride him out
of town on a rail while throwing lumps of doggy-doo and rotten

This is a colorful sentiment but I have to disagree. Freedom of religion is hardly the sole foundational basis for
governmental legitimacy. If we are inclined to argue for a core set of
universal values (as I am inclined to do), then it would be freedom of speech,
not religion, which should be primary among rights that governments may
not infringe upon (as opposed to “granting” which implies power to
taketh away).

And in fact where else but a university would the purest expression
of these rights be found? Even if Abdul-Basser was personally advocating
death for apostates (which he was not), that too is free speech. And the best response to bad speech is more speech, not less.
If we are going to say that his comments are beyond the pale of
discourse, then we are essentially defining thoughtcrime. That’s not a
road we want to go down – it actually violates our basic values rather
than preserves them.

At any rate, it is a great thread, and ranges across all these issues and more. The original controversy had merit, in bringing these topics up for debate, and attracting a wide range of responses. Take a look!


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