NSM

The fourth Nordic conference on Middle Eastern Studies:
The Middle East in globalizing world
Oslo, 13-16 August 1998


The apostasy law in the age of universal human rights and citizenship

Some legal and political implications


Anh Nga Longva
University of Bergen


We always remind those who want to convert to Islam that they enter through a door but that there is no way out. A Kuwaiti jurist (1996) 'Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief...' Art.18 of the Universal Declaration of Human Rights (1948) 'All people are equal in human dignity and in public rights and duties before the law, without distinction as to race, origin, language or religion' Art.29 of the Constitution of the State of Kuwait (1962)
Conversion from Islam, also known as apostasy - in Arabic ridda - is a topic that is rarely discussed. To most people, the term apostasy has a quaint, anachronistic tinge about it, evocative of religious practices from another age. Freedom to change one's religion hardly stands as a major problem nowadays; it is a kind of 'side effect' of the right to freedom of thought, and as Martin Scheinin points out, 'states have not considered it difficult to allow their citizens the freedom to think. The difficulties start when we come to the right to express one's conviction, the right to organize as a community in order to promote a religion or belief and the right to act in accordance with one's conscience ...' (1992: 263-4). It is precisely therefore apostasy in itself is no longer object of much attention. Also students of the Muslim world are little concerned with the phenomenon, no doubt because it is so uncommon.

Infrequent occurence, however, must not blind us to the centrality of the apostasy law in the social construction of the Muslim collective identity. In terms of contemporary approach to rights - on individual as well as group level - the apostasy law in Islam raises a number of critical questions. Let me start this presentation by telling you about a concrete case of apostasy which I unexpectedly came accross in Kuwait in 1996. It will clarify the concept and practice of apostasy, and help anchor the discussion about legal and political implications in contemporary empirical material.

The Qambar case

The man at the centre of my case is Hussein Ali Qambar, a shi'a Kuwaiti businessman. In late 1995 he converted and became a member of the Evangelical Church. Such an event is practically unheard of in the Arabian peninsula and, not surprisingly, it created some sensation in Kuwait. I have been told that secret conversions occur more often than we think, but this claim remains unsubstantiated, at least as far as as the Arabian peninsula is concerned. Studies on conversion to Christianity in the Arab world indicate that it is often the Christian Churches themselves that insist on keeping the conversions secret. Considering the precarious position of some of them and the collective emotional reactions against apostasy (which I will describe in more details below), this may not be surprising. [1] In Kuwait, which is one of the more liberal countries by Arabian standards, a Catholic and a protestant Evangelical church cater freely to the spiritual needs of the large population of migrant workers mostly from the Philippines, Sri Lanka, India, Lebanon and Western countries. The condition for their presence however is that they abstain from all missionary activities among the local Muslims. Conversions from Islam put the local Churches in an awkward position vis-a-vis the Kuwaiti authorities as such events could be interpreted as though the Christians have not respected their side of the tacit bargain.

Qambar's apostasy took place against the background of a custody dispute between him and his wife from whom he had separated a few months earlier. A court decision had given the mother custody of the two children but the father had the right to see them on Fridays. Qambar's wife refused him this right. When asked why by the court, she explained that it was in order to protect the children, as her husband had converted from Islam. Qambar's conversion thus became publicly known.

Once found out, Husein Ali Qambar who by now had taken the name of Robert Husein Ali, stood up to the storm of reactions around him. Instead of hiding, he willingly met with the press, wearing a small silver cross around his neck, and to the question about why he had decided to become Christian, he candidly answered 'I have found God elsewhere'.

Following the practice established by tradition, according to which the community must try to win back the apostate before punishing him/her, a group of learned men met several times with Qambar for the purpose of reconverting him. By January 1996, when it became clear that he would not give in to this amicable approach and recant his decision, popular anger began rising against Qambar. In the National Assembly an islamist deputy called for legal actions to be taken against the convert. Not long after, an islamist lawyer sued Qambar for apostasy. To the court, the plaintiff said that he hoped the lawsuit would make the accused 'regret and reverse his decision or else be officially declared an apostate and bear the consequences'. Meanwhile, the home of the convert was vandalized, he was entirely barred from seeing his children, and when his father passed away, he was forbidden from receiving his share of the inheritance. Gradually, the number of people suing Qambar for apostasy grew. At the same time, he found no lawyers willing to defend him. In May 1996 the judge in the shi'a lower court issued a ruling that officially declared Qambar an apostate and recommended that the death penalty be pronounced against him. Qambar appealed against the apostasy ruling. His appeal was to be reviewed in September 1996. One month before that date, the authorities issued Qambar a passport and he left Kuwait for the USA. What happened in the following months, I don't know because my fieldwork for that year had come to an end and I had to leave for Norway. But when I returned to Kuwait for a brief visit in November 1997, I learnt that Qambar had reconverted to Islam and was now back in the country.

I had the opportunity to observe the Kuwaitis' reactions to the conversion, discuss the event with Muslim friends and informants from various walks of life, and speak with the convert himself.

What struck me most was the unanimity of the condemnations. Everywhere in the Middle East these days opinions differ widely on the relationship between religion, public life and politics - with 'liberals' and 'islamists' being the two contending categories at each extreme of the continuum. Kuwait is no exception. On this particular occasion, however, I found a surprisingly strong consensus across the liberal/islamist divide. Practically everyone agreed that Qambar's conversion was a serious crime and as is the case with all crimes, it had to be punished. They also agreed that depriving him of all his civil rights was an adequate punishment. The only topic which gave rise to some disagreement and a subdued sense of unease within some circles was the question of the death penalty.

Those who opposed it based their position on the Qur'anic verse (2:257) that says 'no compulsion is there in religion'. But more often than not, the same verse was quoted in front of me to show that precisely because Islam is such a tolerant religion, there are no possible excuses for apostasy. Mostly for this reason, apostates are traditionally considered insane unless there is irrefutable evidence that they were in their right mind when they apostated. This explains why some people in Kuwait, when they did not want to see Qambar condemned to death, argued that the man was insane, and called him a 'lunatic', 'a case for pyschiatry'. These statements may sound derisive to us, but ultimately, their purpose was to save Qambar's neck: since he was mad, he could not be held accountable for his actions and therefore should not be killed.

There was a remarkable discrepancy between the discourse of Qambar and that of the society around him. Qambar's frame of reference was art.18 of the Universal Declaration of Human Rights which calls for freedom of religion, [2] and several articles of the Kuwaiti constitution, especially article 29 on universal equality before the law and article 35 which guarantees freedom of belief. This article reads: 'Freedom of belief is absolute. The state protects the freedom of practicing religion in accordance with established customs, provided that it does not conflict with public policy or morals' (emphasis added). In Kuwait, freedom to practice one's religion does indeed exist for the handful of Christian Kuwaits (originally Iraqis and Palestinians who have been granted Kuwaiti citizenship) and for the Christian foreign workers, i.e. people of the Book, born non-Muslims. But when it comes to apostasy, the wording of article 35 is ambiguous enough to allow for divergent interpretations. One can choose to stress the statement about freedom of belief being absolute and the State's pledge to protect free religious practice; or one can choose to stress the need to conform to 'established customs' and 'public policy or morals'.

Qambar was thus making use of a universalist discourse centered upon human rights and citizenship. Citizenship as an unmediated relationship between the individual and the State is a novel and as yet only partially apprehended institution in some parts of the Middle East (Longva forthcoming). As to human rights they are an ideology that many still associate with Western neo-imperialism. Faced with the barrage of criticisms and condemnations, Qambar made no attempt to hide his conversion, showed no remorse and acted as if he was convinced not only of doing the right thing but also of having world opinion on his side. He did not bend and ask for his compatriots' forgiveness. On the contrary he defied them and in his defiance, he relied entirely on the support of outsiders - overwhelmingly Christian and Western. As a matter of fact, several Christian organizations around the world mounted a campaign on Qambar's behalf and his story became something of a cause célèbre on the Internet. The case also provided the basis for sharp criticism against the state of Kuwait at the United Nations in the fall of 1997.

By contrast to Qambar's discourse, the discourse of those who condemned him was framed in particularistic terms of communal and regional belonging. The majority of the Kuwaitis reacted with anger. Anger against Qambar for betraying the Muslim umma, the Arab nation and the Kuwaiti community, but also anger against the Western Christian world who, it was claimed, had engineered this whole episode. People were enraged that Qambar so willingly accepted to be a tool in the Westerners' plot against his own people. When, in an attempt to de-dramatize the event I once suggested that Qambar's conversion may be due to purely personal reasons, people dismissed my view at best as naive, at worst as bordering on bad faith. Even my friends looked at me with suspicion and darkly allude to outside forces working for the demise of Islam.

Summing up the Kuwaitis' reactions to Qambar's conversion, I would say that absence of indifference was what really surprised me. It seemed as if each and everyone in Kuwait experienced Qambar's conversion as a personal affront. That islamists and other religiously conservative people were angered by the conversion was not entirely unexpected. What was more surprising was that also ordinary, moderate Muslims departed from their usual tolererance and supported the penalties meted out to the convert. Political figures and intellectuals who consider themselves and are considered by others as liberal, secular and western-oriented, and who have often openly disagreed with the islamists in the columns of al Qabas, al Watan, or al Anba', kept silent on this occasion.

I stress this point because, unlike the death penalty, stripping apostates of their civil rights was clearly a punishment that was considered fair and not too harsh. To understand this view, we need to remember that civil status in the Muslim world is inextricably linked to religious status. As a result, the question of the adoption by Muslim countries of the secular state ideology and the international instruments in the field of human rights involves conflicts between concrete and complex legal systems and not merely between subjective cultural representations. We also need to bear in mind that throughout the history of Islam, apostasy has been branded as a particularly heinous crime perpretrated against both God and his representatives on earth. It is at one and the same time religious betrayal and political treason (Piscatori 1980). [3]

Apostasy in Islam

In much of the literature on the subject, apostasy is often used in conjunction with kufr or unbelief. The dictionary Lisan al Arab lists the following types of unbelief: 'neither recognizing nor acknowledging God; recognizing God but not acknowledging Him with words, that is, remaining an unbeliever in spite of knowing better; recognizing God and acknowledging Him but obdurately refusing to submit; and outwardly acknowledging though not recognizing God at heart, thus being a hypocrite' (Esposito 1995).

Kufr is a sin typically associated with Jews and Christians. Over the years, Muslim scholars in charge of the official orthodoxy have also tended to brand those straying from this orthodoxy [4] as kuffar, unbelievers. But kufr does not include the idea of apostasy in the sense of 'abanbonment of faith'. This idea is expressed by the term ridda. Ridda refers more specifically to the crime committed by one who has had the privilege of being born in, or introduced to, the true faith and yet chooses to reject this privilege often to embrace another faith. While kufr has been the object of many controversies among the experts of kalam, ridda is the object of unanimous and unequivocal condemnation, and there is no doubt as to what consequences it has on the religious and legal status of the apostate.

Apostasy is defined in Islam as one of the seven hudud offences - i.e. offences for which penalties are believed to be fore-ordained in the Qur'an. While the other six offences - fornication, false accusation of fornication, theft, highway robbery, wine drinking and rebellion [5] - have either fallen in desuetude or have become integrated in the secular penal code, the apostasy penalties are still part of the shari'a-based personal status law. Apostasy is a crime only when committed by an adult in full possession of his/her mental faculties and acting freely. No account is taken of the apostasy of a minor or a lunatic or someone acting under violent compulsion. Traditionally, the apostate is to be executed; pending execution, the apostate is deprived of the right to remain married to his/her Muslim spouse, to retain guardianship over his/her Muslim-born children, to inherit, and to own possessions. All contracts entered into by the apostate after conversion are null and void. This has been rightly described as social or civil death (Gibb and Kramers 1974).

The scientific literature on apostasy in any European language is limited. The discussion focuses almost exclusively on the death penalty. The conservative view holds that death by execution is pre-ordained and is supported by all the four sunni schools as well as Shi'a Islam. [6] The liberal view argues that the death penalty is not pre-ordained since it stems not from the Qur'an, as is usually believed, but from the prophetic hadith which says 'whoever changes his religion, kill him'. To show that the practice of putting apostates to death is questionable, the liberal jurists point to the distinction in Islam between ibadat (God-person relationship) and mu'amalat (person-person relationship). Violations against the former are punished by the hudud penalties; penalties for violations against the latter (ta'zir) are not pre-ordained in the Qur'an but left to be decided upon by the ruler or the judge according to the public interest (Sachedina 1988). Strictly speaking, apostasy is a matter of conscience and religion, thus part of the ibadat, and as such it is beyond human coercion. In the earlier revelations of the Meccan period, the retributions for such matters are inflicted by God in the after-life. After the rise of the Muslim state in Medina, the penalty for apostasy was death by execution in this world; in this way, it has become a crime against men as well, in addition to being a crime against God. The historical precedent for the law of apostasy is to be found in what is known as 'the wars of apostasy' waged by Abu Bakr against certain tribes in Medina (Sachedina, op.cit.). Following the death of Mohammed these tribes sought to secede from the umma and stop paying the zakat. Such a secession would have dealt a severe blow to Abu Bakr's authority as the legitimate successor to the Prophet and might have put an early end to the young Muslim state. It was imperative for the caliph to crush the secessionist attempts. The treatment of apostasy is thus a purely political matter; it should not, therefore, take precedence over the Qur' anic verse 'no compulsion is there in religion' - which the liberal jurists consider as the clearest affirmation of freedom of belief in Islam.

While of great scholarly interest, discussions about the death penalty against apostates have no practical immediacy since in most Muslim countries today it is no longer in use. What remains very much in force, meanwhile, is civil death, yet there is curiously little interest in discussing this form of punishment.

Now I have studied only this one case presented here today, and it occurred in Kuwait, a country that is more uniformly and strictly Muslim than many countries in the Arab world. But events in recent years indicate that apostasy penalties are by no means limited to the Arabian peninsula alone. While conversions from Islam are just as few or perhaps even fewer today than in earlier times, the use of the notion of apostasy has increased markedly in the past two decades. This is because the English word apostasy covers both ridda (conversion from Islam) and kufr (unbelief). Mahmoud Mohammed Taha from Sudan, Abu Zeid, Faraj Fawda and Hassan Hanafi from Egypt, Salman Rushdi, Taslima Nasreen are some of the individuals on whom the label kaffir (unbeliever) has been applied. [7] The term is also used about religious minorities like the Ahmadiyya in Pakistan and the Baha'i in Iran. The same penalty of civil death is extended to unbelievers as to converts. And in both cases, self-exile, vigorously encouraged by the authorities, has so far been the only way to put an end to the predicament of the apostates.That the state authorities in Egypt, Bangladesh, Kuwait, etc. feel obliged to resort to this strategy is, in my view, a confession of failure on their part. Indeed removing the trouble-maker out of the sight of the Muslim community is more damage control than real problem solving; it may prevent a difficult situation from coming to a head, but it certainly does not address the core of the problem.

Legal and political implications

I suggest that the law of apostasy throws into relief one of the root-causes of the socio-political unease experienced by Muslim societies in this century and which has received too little attention from scholars (as opposed to political activists), namely the conflict between the sources of law in the national legislations. [8]

Multiplicity of sources of law is of course not special for the Muslim world: no national legislations anywhere draw their inspiration from just one source. All contemporary states are constantly engaged in an ongoing process of adjusting and harmonizing norms issuing from various sources of law. Legislations in Muslim countries draw upon Islamic law (shari'a), customary law ('urf), and more recently, European law also known as positive law. Each of these main sources is in turn based on several internal sources. [9]

Multiple sources of law entail varying degrees of conflicts and these are solved through a process of legal harmonization. Ultimately, all such harmonizations are a political rather than a legal matter. This is because the reason for the validity of a norm, as all jurists know, is to be found only in the validity of a higher norm (Kelsen 1967). [10] To put it very simply, the task of harmonization starts with the establishment of a hierarchy of sources of law, and thereby of the norms deriving from them. Whether this process is arduous or not depends on the political will of those in power and the context within which they operate. When it comes to the mutual ranking of the shari'a and positive law in the Middle East today, the burden of history as well as the current experiences of Western domination contribute to cast the political dimension in a particularly critical light. This is so not least because nowadays European law in practice overrules the shari'a in most areas of social life. The only area that is still strictly ruled by shari'a principles is the personal status law which regulates family and succession matters. In the Arab world, this law is not integrated in the national civil code (qanoun al madani) but stands on its own (Mahmood 1995). [11]

The central role of apostasy in the personal status law goes back to the time when Muslims, Christians and Jews lived in close relationship and changing religion was an easy way to change one's marital status. For example, a Christian man who wanted to take another wife could easily do so by becoming Muslim. Likewise, a Christian woman who wanted to end her marriage with a Christian man could convert to Islam since a Muslim woman cannot be married to a non-Muslim man. It is to avoid this strategical use of religion that the apostasy law was strictly implemented. In Kuwait today the same logic is still applied as far as women are concerned since by law the apostasy of a man invalidates his marriage but not the apostasy of a woman. This is in order to prevent women from opting out of their marriage through conversion (Mayer 1995).

Beyond the personal status law, however, the jurisdiction of the shari'a in most Muslim countries is practically nil. [12] As already mentioned, the hudud penalties, which had earlier a significant position within the shari'a, have now fallen in desuetude [13] or have been taken over by the secular penal code. [14] Of equal significance is the fact that most Muslim states have today a constitution which guarantees equality between all the citizens, their personal integrity and their basic freedoms, including freedom of belief.

Before looking more closely into the implications of the constitution, it is important to stress the following: As a rule, the coexistence of the two legal systems - shari'a and secular European law is unproblematic, and when contradictions arise, they are often solved through pragmatic compromises. There are two areas, however, where compromises, at the present stage, only go that far and not farther: the status of women, and the status of apostates. There is indeed an irreducible antagonism between the shari'a laws about polygyny, divorce, inheritance and apostasy on the one hand, and the constitutional principle of equality between citizens and their basic freedoms on the other. Whereas the issue of women has been on the agenda for several decades within and without Muslim societies, the issue of apostasy has not. It could be argued that too few people convert from Islam to justify placing apostasy on the front-burner. This argument, however, is not valid because what is at stake is not only the fate of the few individual converts but, ultimately, the legitimacy of the modern state itself. I will explain why this is so.

Constitution and the secular state ideology

With the exception of Iran and Saudi Arabia, the modern states in the Middle East are not founded on Islamic law. They owe their existence to a combination of European colonial policies and secular Arab nationalist ideology. The majority have a written constitution and are organized around the non-Islamic principle of division of power among distinct agencies.

The point with the constitution is that the rules it spells out are considered to be basic in the sense that, until they are modified according to an appropriate procedure, all other rules must conform to them. In other words, the constitution is a higher law that takes precedence over all other laws. Which means, in practice, that in Muslim countries with a constitution, the shari'a is subordinated to this constitution. The only alternative interpretation is that the shari'a exists outside the framework of the constitution which, in juristic terms, is an impossibility.

Because of the secular nature of the Arab states, it can no longer be claimed today that abandonment of the Islamic faith is tantamount to dissent against these states. But apostasy is still perceived as an act of betrayal against the imagined community of the Muslims (Sachedina 1988) - a perception founded in the authoritative religious texts.This is why the penalty of civil death in the case presented here was requested by the civil society, against whom the 'offence' is felt to have been committed, rather than by the state authorities. Objectively and technically speaking, the modern State is unaffected by instances of apostasy. Furthermore, although the shari'a lower court in Kuwait is empowered to strip Qambar of his personal status rights, none of the other legal instances is constitutionally mandated to deliver and carry out a death sentence against him on account of his apostasy. Not only that: During the critical months preceding Qambar's departure from the country, I heard Kuwaiti jurists worry about the prospect of the convert being killed extra-judicially: in such an eventuality, how would the authorities deal with the killing and its perpetrator(s)? A few years earlier (1993), a member of the Muslim Brotherhood, Mohammed al Ghazali, had declared in a court testimony that since 'the presence of an apostate inside the community constitutes a threat to the nation and should be terminated .... any person or group of people who kill such an apostate should not be liable for punishment'. In al Ghazali's view, they would be 'fulfilling the legitimate punishments prescribed by Islam' (MEC 1995). Although such a statement can only be described as the expression of the most extreme form of fringe fundamentalism (the Egyptian Organisation for Human Rights called it 'a clear invitation to murder') it did point at a possibility which in the spring of 1996 seemed very real to the Kuwaiti authorities.

Whatever went on behind the scene, the state in Kuwait kept a very low public profile during the crisis. It never acted as an aggrieved part, and never issued any judgmental pronouncements against the apostate; nor did it intervene actively to stop the harassment to which Qambar was subjected. Rather, the authorities gave the impression of being utterly perplexed, at least in the early stages (this was the first time since independence that Kuwait was confronted with a case of public apostasy). This is hardly surprising since the state was faced with a difficult dilemma: the higher legal instances of the country could not find Qambar innocent without invalidating at the same time the shari'a stipulations on apostasy. Qambar, in openly acknowledging his conversion, fulfilled all the conditions for apostasy as outlined in the religious texts. No mitigating circumstances could have allowed the State to both save Qambar and uphold the apostasy law. This clear-cut situation meant that defending him would have entailed the risk for the State of losing the support of a population for whom the authority of Islamic scriptures is still largely unquestioned. On the other hand, allowing the apostasy penalties to be carried out would have irremediably undermined the legitimate raison d'etre of the modern state - namely to uphold the rule of law and safeguard the physical integrity of all citizens.

After Qambar had opted for self-exile and the dust had settled down, some Kuwaiti liberals praised the authorities for the way they had handled the case. By keeping a low profile and helping the convert to disappear from the scene at an appropriate moment (in August, when everyone, including the islamists, was busy vacationing elsewhere outside the country) the state, they said, had helped defuse rather than increase the tension.

This praise for the state's strategy by the liberals can be interpreted in two ways: it could mean that these liberals acknowledge the existence of conflicts of sources of law but, being unable to solve the problem, they have to be content with ad hoc and partial solutions. Or it could mean that they shrug off the episode as yet another example of the fickleness of an unenlightened populace - always easy prey to the manipulations of religious demagogues; in other words, for these liberals the apostasy law is not a real problem, merely one of the many pretexts used by the Islamists to stir up popular discontent. On the basis of my observation, I believe this latter view to be the more widespread one.

Conclusion

Although positive law covers a wide area of social life, it does not impinge as directly and as significantly on the lives and identities of the individual Muslims as the shari'a-based personal status law does. And even though the apostasy penalties may not be written explicitly anywhere in the national legislations of the modern Muslim states, they have a central position in the shari'a. We are thus not dealing with a higher and a lower law, but with two conflicting normative systems of equal importance and validity. Central in my argumentation here is that absence of a clear hierarchy of sources of law weakens the legal order and, in the long run, undermines the legitimate foundation of the state.

The Islamists have been making the same argument for years, albeit from a different standpoint. They claim that the existence of a non-Islamic higher law in the form of the constitution is an open violation of the central tenet of the religion which is submission to God and his law, literally, islam. Hence their insistance for replacing the constitution with the Qur'an; hence also, their struggle to upgrade the shari'a from being 'one source of law' as stated in the modern constitutions, to being 'the main source of law' and to make the national legislations conform with the spirit and letter of the shari'a.

I do not suggest that islamization is the solution to all - if any - problems in the Muslim societies. But even if we disagree with the solution proposed by the Islamists, we must acknowledge that at least part of their diagnosis of the socio-political unease in the Arab world is correct. When we describe this unease in terms of 'fear of modernity', 'clash of civilizations', or 'longing for a golden past that never really was', we describe consequences rather than causes . Whatever the Islamists' ultimate agenda may be, their call for islamization has at least the merit of bringing into the open the important issue of the conflict of sources of law. It is important because, under the present circumstances, conflicting norms, in addition to weakening the legal order, give rise to profound cognitive and cultural dissonance thus threatening to throw the collective construction of Muslim identity in disarray.

The creation of secular states in the Middle East has carried along with it, perhaps inadvertently, the ideology of universal rights and liberties. Islam is a universal religion but compared with the ideology of the secular state, its universalism is a conditional one. We must expect the dialogue between these two forms of universalism at some stage to produce frictions. Acknowledging this, not sweeping it under the carpet as many liberal politicians and thinkers seem to be doing at present, is the first step towards dealing with the challenges of globalization.


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Notes

1. In 1972, for example, the burning of a church in Khanka (Egypt) was the result of the conversion of two Muslim youths in Alexandria (Aldeeb Abu-Salieh 1986). [*]

2. 'Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.' It is interesting to note that the precision about freedom to change one's religion was added at the request of the delegate from Lebanon at the United Nations (Mayer 1995:142). The same precision was the object of criticism by the representative of Saudi Arabia on the ground that it would allow 'abuse of the right by missionaries who in fact were often forerunners of political intervention' (Scheinin 1992:265). But - and it is noteworthy for our discussion - the Saudi representative did not contest the individual's right to change religion (ibid.). [*]

3. In an attempt to demonstrate to me that the death penalty against apostates makes good sense, an informant - an academic person whom I would describe as moderate by most accounts - concluded his argumentation with the following remark: ' Why is it so difficult for you to understand this? You did execute Quisling in Norway after the war, didn't you?' [*]

4. There are clear definitions of what 'straying from the orthodoxy' means. It consists of entertaining certain ideas about Allah, about prophets and angels, about the Qur'an, and about science (Peters and De Vries 1976-77). [*]

5. There is some disagreement as to the number of the hudud crimes. Some jurists omit rebellion, thus bringing the number down to six. Others maintain that the Qur'an prescribes specific penalties for only four crimes - unlawful intercourse, false accusation, theft and highway robbery. For these jurists, rebellion, wine drinking and apostasy fall under the category of ta'zir (see below) and not hudud offenses (Little et al. 1988:78).. [*]

6. According to the Hanafi school and in Shi'ism, female apostates are not to be put to death, but only to be jailed and flogged daily at prayer times. [*]

7. In addition to these famous persons, a number of perfectly anonymous individuals have been accused of kufr without benefiting of any particular attention or support from the outside world. Last year, for instance, Abd el Karim al Naqshabandi, a Syrian worker in Saudi Arabia, was accused by his employer of using witchcraft and was beheaded in Riyadh. [*]

8. The scholars I have in mind here are first and foremost Western and other non-Muslim writers. In Egypt, there is a vigorous ongoing debate among intellectuals between the supporters of the shari'a laws and the supporters of positive laws (cf. for instance the opposing views of Tariq al Bishri and Husain Amin in Ayubi 1991). [*]

9. The sources of the shari'a for instance are most importantly the Qur'an, the sunna, the ijma' (consensus of opinion) and the qiyas (judgment upon juristic analogy). [*]

10. '[T]he question why a norm is valid, why an individual ought to behave in a certain way, cannot be answered by ascertaining a fact, that is, by a statement that something is [...] From the circumstance that something is cannot follow that something ought to be; and that something ought to be, cannot be the reason that something is' (Kelsen 1967:193). [*]

11. This does not mean that today's shari'a-based personal status law is the exact reproduction of what it used to be fourteen centuries or even one hundred years agos. A number of Arab countries, including Kuwait, have recently codified the personal status law and in the process, they have introduced some minor modifications for the purpose of attenuating somewhat the assymetry between men and women. With the exception of Tunisia and Turkey, however, whatever changes have been introduced in this regard in the Middle Eastern countries have so far been more cosmetic than substantial (cf. Mahmood 1995). [*]

12. Recently the emergence of Islamic banking has expanded the application of the shari'a into some areas of the economy. For a discussion about to what extent the Islamic banks are really 'Islamic', see i.a. Ayubi 1991. [*]

13. E.g. with the exception of Saudi Arabia and Iran, theft is no longer punished by hand amputation, nor fornication by stoning, nor apostasy by beheading, for that matter. [*]

14. Note that this has occured even though the hudud penalties may not, in principle, be mitigated, aggravated, or suspended by any earthly authorities (al 'Awwa 1982:128). [*]


Anh Nga Longva
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© The author and Nordic Society for Middle Eastern Studies. Archived 29.3.99