City of Brass

City of Brass


debating apostasy and capital punishment

posted by Aziz Poonawalla

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
death…”

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
vegetables.

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!

 



  • Cinnabar

    Where did you get that “constitutional” quote about treason? Here’s the actual text, nothing in it about death…
    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open court.
    The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

  • Karen Whitaker

    I am not a Muslim, and I respectfully disagree. Of course Muslims can put apostates to death in a secular society. The price is being charged with murder, but if it’s that important to them, one may expect some to carry out what they believe to be the will of Allah even at the cost of their own lives. But I have to tell you, I believe the cost of such actions in our secular society should be no less than that.

  • Albert the Abstainer

    Thanks be, I live in Canada, one of many Western countries which does not engage in the barbaric practice of capital punishment.
    To punish with death is unthinkable accept where the person to be executed continues to be a substantial threat to the lives of others and the threat cannot be neutralized in a less harmful and irrevocable way. To kill a person for an act of apostasy is itself a blasphemous action. It is to put upon oneself or upon the abstract entity of the state the mantle of God and to act as an agent of God. Personally, I would not want to be in the shoes of one performing such an act if God in fact exists. Imagine if what was done does is tainted by human weakness.
    Woe be to the one who under the name of God does evil. Better to allow offenses against God to be dealt with by God than to act as though one is God. Humility serves man, not hubris. One is a path to wisdom, the other to collapse. How I wish the religious had enough faith to trust in God in such matters. Where is there faith? Or are they in their hubris engaged in an act of far greater apostasy than a mere renunciation of a particular faith?

  • Aziz Poonawalla

    You are right, it is in the US Code, not the Constitution. I will have to amend the post accordingly… thank you.

  • Your Name

    I think it is quite ridiculous to subject a person to any kind of punishment leave along capital for what he previously believed and believes now. Belief especially in matters of faith are absoluteley personal choices devoid of any worldly methodology or logic system. A person not believing in a demonstratable occurence may be dismissed as being dim witted or retarded subject to sympathy. On the other hand believing or changing ones set of beliefs in matters of faith having no provable basis cannot possibly warrant any action by society or the government. Society can only take action where an individual violates the rights of another member and by no stretch of the imagination can this constitute such a violation. I really wonder what the debate is about starting from such a ridiculous premise.

  • http://www.quranreading.com/ Quran Online

    Salam: i agree that To punish with death is unthinkable accept where the person to be executed continues to be a substantial threat to the lives of others and the threat cannot be neutralized in a less harmful and irrevocable way. To kill a person for an act of apostasy is itself a blasphemous action.
    Well i agreee and its a great article.

  • http://AddaURLtothiscomment Daniel Barbour

    A nice and very lofty thread on the surface. Does not hold any water when seen through the eye of real events.One might look at the gross number of Muslim acts of violence in Europe, the Philippines, and Muslim countries like Indonesia. Yes, I not only support Israel’s right to exist, but to have Jerusalem and the entire West Bank as well. It is Satan’s Islamic lie that tells Muslims they can have even one foot of that land. Read the Holy Bible, not Satan’s Quran. I am not a Muslim. In fact I am a ??????. I ware this proudly in public on my hat.

  • Pingback: State of Formation - Compulsory religion: You can lead a kid to the altar…

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