Critique of MH Kamali article
'Freedom of Expression in Islam'
by GFH


I found many problems in Dr. Kamali's article (which is available in full in the "Files" section) in connection with accuracy.

Kamali states:

Freedom of religion in its Islamic context implies that non-Muslims are not compelled to convert to Islam, nor are they hindered from practicing their own religious rites. Both Muslims and non-Muslims are entitled to propagate the religion of their following, as well as to defend it against attack or seditious provocation (fitnah), regardless as to whether such an action is launched by their co-religionists or by others. FOOTNOTE: 161. cf. Abu Zahrah, Tanzim al-Islam li'l- Mujtama', p.190; al-'Ili, al-Hurriyyah al-`Ammah, p. 330.

Is this the correct representation of freedom of religion in its Islamic context? For example, under the Ottomans and the Idrisis, were the non-Muslims (of the Middle East and North Africa respectively) at liberty to promote their faiths outside of their homes and places of worship? Or did the Dhimma rather only entitle them to practice their faiths - and that only for Divinely-revealed Religions of the Book, namely, Christians and Jews?

Kamali states:

The only notable difference between classical and modern works on religious freedom is that some of the earlier writers were persuaded by the argument that many Qur'anic passages which affirm the freedom of religion have subsequently been abrogated or superseded by other passages of a more restrictive nature. However, modern Muslim opinion on the subject tends to dismiss this rather weak argument.

The sahih narrations in al-Bukhari and Muslim establish that the Companions themselves explicitly mentioned the term "naskh" (abrogation) with relation to certain verses of the Qur'an. The attribution of weakness to the concept is classic Mu`tazilism.

Kamali states:

Abu Zahrah also tells of an incident where an elderly Christian woman came as a supplicant to the Caliph Umar b. al- Khattab, who met her request with favour. Afterwards, he invited her to embrace Islam, but she refused. At this the Caliph became anxious, fearing that his invitation might have amounted to compulsion, and he expressed his remorse in these words: 'O my Lord, I did not mean to compel her, as I know that there must be no compulsion in religion ...righteousness has been explained and distinguished from misguidance.' Thus, the Caliph Umar expressed the point that only God Most High can prevail upon the hearts and minds of people in matters of faith. FN 180: Abu Zahrah, Tanzim, p. 192.

Regardless whether Imam Muhammad Abu Zahra, may Allah have mercy on him actually said this, the above report has been embellished.

What is precisely related is that our liege-lord `Umar while in Syria was brought water for wudu' and said afterwards: "I never tasted sweeter water, from where did you get it?" They pointed him to the house of an elderly women. He went and said to her: "Old woman, surrender and you shall be safe! Muhammad came with the truth from Allah." She uncovered her snow-white hair and said: "Now? With one foot of mine in the grave?" Whereupon `Umar said: "O Allah, bear witness!" I.e. bear witness that I tried. Thus is it related by al- Daraqutni in his Sunan (1:32 "Wudu' with water from Ahl al-Kitab"), al-Bayhaqi in his Sunan (1:32 §128), Ibn Hazm in al-Muhalla (11:196), the latter with the wording: "O Allah, bear witness! There is no compulsion in the Religion," and Ibn Hajar in Taghliq al-Ta`liq (2: 131). So the entire segment that "he became anxious" and "expressed remorse" and said "I did not mean to compel her" is invented.

Kamali states:

Indeed, some commentators have drawn the drastic conclusion that the Qur'anic passages which validate holy war (jihad) and fighting against disbelievers actually abrogate the Qur'an's proclamation on tolerance and respect for other religions. [...] In his monograph, The Punishment of Apostasy in Islam, S. A. Rahman looks into the evidence in the Qur'an and the Sunnah in detail, and draws attention to the fact that the Qur'an is silent on the question of death as the punishment for apostasy, despite this subject occurring no less than twenty times in the Holy Book.

The above opinion is revisionism posing as scholarship.

Al-Jawhari [4th c.] in Nawadir al-Ijma` said there is ijma` among the Sahaba that the punishment of apostasy by death is meant by the verse of al-Ma'ida 33: {The only reward of those who make war upon Allah and His messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the Hereafter theirs will be an awful doom}. This is mentioned in Ibn Qattan's encyclopedia of Ijma`.

See also the Tafsirs for the verses:

3:56: As for those who committed apostasy, then Allah shall torment them with a terrible torment both in the world and in the next life.

9:61 [...] Those who vex the messenger of Allah, for them there is a painful doom.

33:57 Lo! those who malign Allah and His messenger, Allah hath cursed them in the world and the Hereafter, and hath prepared for them the doom of the disdained.

88:22-24 : You are not at all a ward over them except those who turn back and commit apostasy, after which Allah shall punish them with the greatest punishment.

Kamali states:

Rahman then traces the chain of transmission of the Hadith which proclaims 'kill whoever changes his religion' . As this is a solitary Hadith (ahad), Rahman finds some weakness in its transmission (isnad).

The hadith "Whoever changes his religion, kill him" is narrated in al- Bukhari, the Four Sunan, and the Musnad, and the hadith "The blood of a Muslim is sacrosanct except for three types: the murderer, the married adulterer, and the apostate" is narrated in the Six Books and the Musnad, so whoever finds weakness in such hadiths necessarily finds weakness in the bulk of the Law, which rests on such evidence in the majority of rulings pertaining to worship and transactions.

There is agreement on the binding force of this ruling among the Imams of the Four Schools except on two things: [1] gender, Imam Abu Hanifa sparing women from execution and jailing them for life instead, due to the Prophetic command not to kill the women of enemy combatants in time of war, and it is an "a fortiori" proof; and [2] timing before the ruling of exectution is enforced.

The Prophet, upon him peace, spelled out the condition for killing the apostate: that he be a muharib i.e. a vocal or active enemy of Islam:

"The blood of a Muslim is illicit to shed except for one of three reasons: a married adulterer must be stoned; one who wilfully commits murder must be put to death; and a man who comes out of Islam and fights Allah and His Prophet must be put to death or crucified or banished from the earth."

It is narrated with transmission chains of trustworthy narrators from `A'isha by al-Nasa'i and Abu Dawud in their Sunan and al-Bayhaqi in al-Sunan al-Kubra. This hadith explicitly makes "fighting Allah and His Prophet," i.e. fighting Islam and Muslims, a condition sine qua non for punishability by death. For then the murtadd becomes the same as an enemy soldier in wartime (muharab), i.e. an enemy of Islam on the battlefield.

An even stronger proof than non-mutawatir hadiths is the Consensus of the Sahaba:

"Whoever reverts from Islam, men and women, it is obligatory to kill him due to the Prophet's saying: "Whoever changes his religion, kill him." The scholars have reached consensus on the obligation to kill apostates. This has been narrated from Abu Bakr, `Umar, `Uthman, `Ali, Mu`adh, Abu Musa, Ibn `Abbas, and Khalid, and it has not been opposed (by a single companion), therefore it constitutes consensus."

Baha' al-Din `Abd al-Rahman al-Maqdisi (d. 624) "al-`Udda sharh al-`Umda fi fiqh Imam al-Sunna Ahmad ibn Hanbal al-Shaybani" (The outfit: commentary on Muwaffaq al-Din Ibn Qudama's [d. 620] "The Reliance" in the jurisprudence of the Imam of the Sunna, Ahmad ibn Hanbal), Book of Punishments, first words of the Chapter on the Ruling Concerning the Apostate (Beirut: Dar al-arqam, n.d.) p. 531.

Kamali continues:

Rahman's conclusion is also supported by other evidence, such as the fact that neither the Prophet himself nor any of his Companions ever compelled anyone to embrace Islam, nor did they sentence anyone to death solely for renunciation of the faith.

This is in point of fact false, the Prophet, upon him blessings and peace, did sentence to death `Abd Allah ibn Sa`d ibn Abi Sarh (cf. Ibn Taymiyya, Sarim Maslul p. 791-793 and Ibn `Abd al-Barr, Durar fi Ikhtisar al-Siyar p. 219) for apostasy, even if he was never actually executed. As for the apostate Muqayyis ibn Sababa he was executed but the fact that he was also a murderer blurs his case.

Kamali states:

In the light of this, it is not surprising to find a number of prominent 'ulama', across the centuries, subscribing to the view that apostasy is not a punishable offense. Ibrahim al-Nakha'i (d. 95/713), a leading jurist and traditionist among the generation succeeding the Companions, and Sufyan al-Thawri' (d. 161/772), who is known as 'the prince of the believers concerning Hadith' (amir al-mu'minin fi'l- Hadith) and is the author of two important compilations of Hadith, namely al-Jami' al-Kabir, and al-Jami' al- Saghir, both held that the apostate should be re-invited to Islam, but should never be condemned to death. They maintained the view that the invitation should continue for as long as there is hope that the apostate might change his mind and repent.FN184. Ibn Taymiyyah, al-Sarim al-Maslul `ala Shatim al- Rasul, p. 321; al-Shawkani, Nayl al-Awtar, VII, p. 230.

This is a misreading of al-Nakha`i's statement: "The murtadd is summoned to repent indefinitely" (al-murtaddu yustatabu abadan) [`Abd al-Razzaq 10:166, Mughni 8:125] which does not mean that the hadd is not applied, for that would violate the Sunna and Consensus, but rather that if the murtadd re-enters Islam then recants a second time he is summoned to repent a second time, and if he recants again after his second repentence he is summoned a third time, and so on indefinitely; however, if he refuses to repent he is killed, as al- Nakha`i himself said: "The male murtadd is summoned to repent, and if he repents he is left alone, otherwise he is put to death" [Abu Yusuf, kharaj no. 180, Mughni 8:123-124], and "The female murtadda is summoned to re-embrace Islam, and if she surrenders she is left alone, but if she refuses she is put to death" [Abu Yusuf, Aathaar no. 161, `Abd al-Razzaq 10:176, Ibn Abi Shayba 2:137].

As for al-Thawri, his position as related by the same sources is identical or stricter, since he says that the maximum number of repetitions is three.

Thus, the verse which Kamali later cites in support of his view that execution is cancelled actually does not support it, since it means it is only cancelled conditionally by repentence, even repeatedly, short of which it remains the ruling for apostasy by default:

{Those who believe then disbelieve, then believe again, then disbelieve and then increase in their disbelief -God will never forgive them nor guide them to the path.}
(4:137)

Kamali continues:

'Abd al-Wahhab al-Sha'rani has also cited the views of al-Nakha'i and al-Thawri and adds that 'the apostate is thus permanently to be invited to repent'.FN185. Al-Sha'rani, Kitab al-Mizan, II, p. 152.

There is nothing in Imam al-Sha`rani's text that indicates he understood the above rule other than in the terms we explained above.

Kamali continues:

The renowned Hanafi jurist, Shams al-Din al-Sarakhsi, is rather less explicit but what he writes amounts to saying that apostasy does not qualify for temporal punishment. He begins by stating that apostasy is not an offense for which there is a prescribed punishment (Hadd), because the punishment for it is suspended when the apostate repents:

The prescribed penalties (Hudad) are generally not suspended because of repentance, especially when they are reported and become known to the head of state (imam). The punishment of highway robbery, for instance, is not suspended because of repentance; it is suspended only by the return of property to the owner prior to arrest. ..Renunciation of the faith and conversion to disbelief is admittedly the greatest of offenses, yet it is a matter between man and his Creator, and its punishment is postponed to the day of judgment (fa'l-jaza' 'alayha mu'akhkhar ila dar al-jaza'). Punishments that are enforced in this life are those which protect the p~DJ1e's interests, such as just retaliation, which is designed to protect life…FN186: 186. Al- Sarakhsi, al-Mabsut, X, p. 110.

Al-Sarakhsi goes on to recount the punishments for adultery, theft, slanderous accusation, wine-drinking and highway robbery - namely, all the hud[u]d punishments -but leaves apostasy out altogether from the list.

This is yet another astounding misreading on Kamali's part since, quite contrary to his claim, al-Sarakhsi does mention apostasy and clearly states the man is killed but not the woman, who is only imprisoned. As for the statement that requital for apostasy is postponed, it is not at all meant in the sense claimed, namely, the cancellation of the hadd ruling, but rather, in the sense that Imam Zakariyya al-Ansari said as cited by his student al-Sha`rani in his Mizan on the very page Kamali cited below (II, 134), that "the Muharib is the only one concerning whom we have been assured that he is punished both in this life and the hereafter" and he cited verse 2: 114, {... Theirs in the world is ignominy and theirs in the Hereafter is an awful doom} i.e. the `adhab al-akbar or "greater punishment" - greater than what if not the "lesser one"? - which is the full requital meant in so many verses, among them the verse we already cited:

88:22-24 : You are not at all a ward over them *except* those who turn back and commit apostasy, after which Allah shall punish them with the greatest punishment. I.e. they are punished both here and hereafter, whereas all other punishments are only once, either here or hereafter.

Kamali continues:

The Maliki jurist, al-Baji (d. 494 A.H.), also observed that apostasy is a sin which carries no prescribed penalty (hadd), and that such a sin may only be punished under the discretionary punishment of ta'zfr.FN187 The renowned Hanbali jurist, Ibn Taymiyyah, also categorically agrees on this latter punishment for apostasy.FN188

The two footnotes he gives are as follows:
187. Ibn Taymiyyah, al-Sarim al-Maslul `ala Shatim al-Rasul, p. 318; al-Sha'rani, Kitab al-Mizan, II, 134; EI-Awa, Punishment, p. 55. 188. Ibn Taymiyyah, al-Siyasah, p. 124.

However, on the page of the Sarim (Dar Ibn Hazm ed.) quoted there is not what he said, rather, on the next page (p. 319) Ibn Taymiyya said: "It is categorically obligatory to kill the insulter of the Prophet, upon him peace, and if such a person was a Muslim he became a murtadd, and killing the murtadd is even more obligatory than killing the disbeliever." Nor is there anything of what he claimed on the page he cited for Ibn Taymiyya's al-Siyasa al-Shar`iyya (in the Dar al-Ma`rifa edition). As for Imam al-Sha`rani I did not find what he said on the page he cited but rather, in the "Bab al-Ridda" of his Mizan (II, 120) he states in the very first line: "There is agreement among the Imams that whoever commits apostasy and leaves Islam it is imperative (wajaba) to kill him."

All the above shows the unreliability of modern readings and their tendency for blatant revisionism. On the subject of hudud and apostasy please refer to Anwarullah's Criminal law of Islam (1995) published by the Ministry of Religious Affairs in Brunei Darussalam.

Kamali states:

Mahmassani has observed that the death penalty was meant to apply, not to simple acts of apostasy from Islam, but when apostasy was linked to an act of political betrayal of the community .The Prophet never killed anyone solely for apostasy. This being the case, the death penalty was not meant to apply to a simple change of faith but to punish acts such as treason, joining forces with the enemy and sedition.

The above reasoning is fallacious from two perspectives: [1] it dresses in the robe of ijtihad what is already established in the hadith without need for ijtihad, namely, "and a man who comes out of Islam and fights Allah and His Prophet" as we already cited. [2] The claim that the Prophet, upon him blessings and peace, "never killed anyone solely for apostasy" is misleading since the Law considers the Prophetic verbal injunctions to have precedence the Prophetic acts, so in the presence of his explicit and unambiguous commands to that effect, the fact that he did not do something is the weakest counter- proof possible.

Furthermore, it is not exactly true that he never killed anyone solely for apostasy as shown in the case of Ibn Abi Surayh over whom the Prophet, upon him peace, made his will clear that he should have been killed. and the Prophet's reasoning for executing two specific kafir prisoners of war days after the battle of Badr was over such `Uqba ibn Abi Mu`ayt and al-Nadr ibn al-Harith al-`Abdari was their extreme enmity to Allah and the Prophet. Such was also the reason why the Prophet, upon him blessings and peace, ordered the assassination (which `Abd Allah ibn Unays carried out successfully) of Ibn Nubayh al-Hudhali who was mobilizing people to raid the Muslims, similarly when the Prophet ordered the assassination (which `Umayr ibn `Adi al- Khatmi carried out successfully) of Asma' bint Marwan who reviled Islam and exhorted the disbelievers against the Prophet, upon him blessings and peace.

Kamali states:

Ibn Taymiyyah further added that the Companions reached a consensus (ijma') on this, for when the Prophet passed away, most of the Arabs, except for the residents of Mecca, Medina and Ta'if, apostasised, including many followers of the self- proclaimed 'prophets', Musaylimah, al-Anasi, and Tulayhah al- Asadi, who renounced Islam and were subsequently fought by Abu Bakr al-Siddiq and other Companions until they returned to the faith again. They were left unharmed and not a single one of them was killed because of their renunciation of Islam. This, Ibn Taymiyyah adds is common knowledge.FN203: [Ibn Taymiyyah, al-Sarim, p. 318.]

The above shows more dishonesty in quoting. What Ibn Taymiyya said is that "none of those apostates *who repented and returned to islam* was harmed in any way." It is common knowledge indeed that al-`Ansi was killed by Qays ibn Makshuh who was sent to Yemen by Abu Bakr for that mission, Musaylima was killed by the army of Abu Bakr, specifically by the spear of al-Wahshi, and Tulayha al-Asadi was spared only because he repented after being routed.

and why this insistence on making Ibn Taymiyya say the opposite of what he said? On the very same page (al-Sarim, p. 318) he states: "As for the Prophet's statement 'Whoever changed his Religion, kill him,' we say that it is imperative, but he changes his religion only insofar as he persists in so doing and remains in that state, but if he returns to the Religion of truth then he is no longer changing his Religion."

and this is the position of all the Four Schools over which there is unchanging agreement, and Allah knows best.

gibril
[SP 2006-03-31]



 





next page



 

vs.2.1


home

latest update: Wed, 7 Jan 2009

2007-01-28





* living Islam – Islamic Tradition *
http://www.livingislam.org