Last update: 2018-12-17 16:20:19
The contemporary Muslim world is divided on the issue of the relationship between classical Islamic law, positive law and international human rights treaties. Considering the increasing obsolescence of Islamic jurisprudence, particularly in the field of penal law, its re-enactment by positive laws in Muslim majority countries represents a major challenge.
The inaugural session of the Cultural Forum of the Egyptian Supreme Council for Islamic Affairs was held at the beginning of October 2010. Muhammad ‘Abd al-Ghanī Shāma, cultural advisor of the Minister for Religious Affairs, released on that occasion a fatwa stating that religion is a person’s free choice, which the state should protect, avoiding any coercion. Shāma also stated that the Islamic legal pronouncement according to which the apostate should be killed has no grounding in the Qur’an. In support of his claim, he quoted the following verse: “Those who believe and then disbelieve, and then believe, and then disbelieve and increase in unbelief – God is not likely to forgive them, neither to guide them in any way” (4:137).
His declarations did not fail to raise controversy in the local media and public opinion. The then Minister of Religious Affairs, Mahmūd Hamdī Zaqzūq, absent at the inauguration, soon clarified in the media that the personal opinion of his advisor did not reflect his own views. This was not the first time the Minister had to bring his advisor to heel. Some of Shāma’s views on freedom of worship had already raised bitter criticism, particularly on account of his support of Amina Wadud, a Canadian Muslim, the first woman to have led a mixed-sex collective prayer in modern times. On the other hand, many important Egyptian religious leaders were quick to recall that Islamic texts are very clear on the need to execute the apostate who challenges, by his act, the purity of the Islamic faith.
This is not only an anecdotal controversy. As a matter of fact, in the last fifteen years, Egypt alone has seen the rise of conflictual statements for, or against religious freedom by state mufti, al-Azhar mosque-university mufti, the Ministry for Religious Affairs, the Fatwa Council and representative leaders of different Islamic schools. According to the Fatwa Council of Egypt, “the death penalty for apostasy does not find application in the reality of practical life. Albeit the sources of Islamic law still mention this punishment, this is not a legal ruling which jeopardizes freedom of thought and belief. On the contrary, this penalty is subordinated to positive law.”
This is a recurrent debate in the Muslim world, and the recent controversy around the 2012 Supreme Ulama Council of Morocco’s opinion is just another example. In response to the Minister for Religious Affairs’ query on the subject of human rights protection, the Council confirmed the need to apply the controversial dispositions of classical Islamic law around apostasy. The lobbying efforts enacted by part of civil society, human rights activists and by the same Moroccan authorities prevailed in the end. On February 2017, the Council issued a remedial opinion in The Path of the Ulama. This document avoids defining apostasy as a personal act of conversion from Islam. Rather it narrows down the meaning of apostasy to an attempt at destabilizing society through the jeopardization of people’s faith and the purity of the social fabric. Muhammad al-Fizāzī, a Moroccan Salafi leader, rushed to denounce this remedial opinion. He stated that the Qur’anic verse, “no compulsion is there in religion” (2:256) does not rule out the need to kill the apostate. A general overview of the ongoing debates on the issue taking place in all Muslim-majority countries falls outside the scope of this contribution. Suffice to say that they all reflect a strong tension within the contemporary Muslim world around the place of classical Islamic law (fiqh) in positive law and the reception of international human rights treaties. The ulama have historically interpreted the notion of religious freedom in light of the texts of the Islamic tradition, adopting a hegemonic religious approach. Today, the clerics of Islam attempt to define restrictions on individual rights, by reenacting the old hegemonic approach in the positive laws of Muslim majority countries.
The Interpretation of Islamic Texts in a Hegemonic Context
In medieval Islam, the issue of freedom of conscience, inclusive of religious freedom, can be approached according to different perspectives: legal, exegetical, philosophical, historical, and political (siyāsa shar‘iyya). The overlap among the approaches is indicative of the extent to which Islam gradually moved from being a small community – gathered around the Prophet, in a tribal context with its own code of laws – to a constituted religion, whose doctrinal elements came to light in an imperial era. This historical evolution greatly influenced the way the ulama thought about the religious other and the unity of the “community” from within the “hegemonic paradigm” as I call it.
By that I mean a worldview, developed by the Muslim scholars in medieval times, according to which the dominion of God over creation should translate in the dominion of the Muslims over the world: the issue of freedom of conscience, and its restriction, must be understood through this lens. The dominion over the other is endorsed by classical Islamic law through the status assigned to the non-Muslim – “protected,” dhimmī or belligerent – and the enactment of specific guidelines pertaining to the submission of the latter to the Muslim ruler.
It would be anachronistic, however, to argue that Islam (or any other monotheism) respected freedom of conscience in the sense contained in the International Declaration of Human Rights.
During his prophetic life, Muhammad mostly attained to the rules of inter-tribal relations predating Islam. The Qur’an lists some of them, especially those pertaining to economic exchange, punishment, conflict and war. Many verses emphasize the harshness of the penalty, in the afterlife, for the unbelievers – as if to reinforce the tribal order of seventh century Arabia, in which the free individual could not be coerced outside the framework provided by the alliances contracted by his own clan. The Qur’anic verse, “No compulsion is there in religion,” (2:256) is very clear in this respect. Nonetheless, the fundamental rules of Islamic law pertaining to freedom of conscience were drafted during a period which goes from the beginning of the Omayyad empire (mid-seventh century) to the tenth century, when the prevailing concern was the preservation of the unity of the political community under Muslim dominion. The four juridical schools, and the disciplines regarding the foundations of the law and the theoretical and practical canons were developed during this time period. The subjugation of the people to the religion of the prince was not unique to the Muslim world. It was also common to the Christian world of the time.
The Qur’an and the prophetic tradition were sufficiently diverse as to provide for a wide range of interpretations regarding religious freedom. One of the most well-known scholars of Qur’anic exegesis, imam al-Qurtubī, provides a fairly exhaustive list, comprising six, (sometimes clearly contradictory) interpretations of the above-mentioned verse on religious freedom:
Al-Qurtubī’s treatise perfectly depicts the great variety of interpretations (and limitations) on religious freedom (for both Muslim and non-Muslim), which can be derived from the Qur’an and the prophetic tradition. The six interpretations can be found all, or in part, in modern Qur’anic exegesis, indicating some continuity among the ulama on the notion of Islam’s dominion over the world, with all the ensuing practical consequences at the legal level. This has led the doctors of the law to associate respect for different faith traditions, especially if monotheistic, with freedom of worship – while affirming the necessity of preserving Islam’s dominion through a series of more or less heavy restrictions on religious expression. The issue of allegiance to the political ruler, and the submission of the non-Muslim, fits this pattern. The latter holds a “protected”, or dhimmī status, that makes him eligible to safeguard by Muslim authority. The juridical texts, however, leave the political ruler a wide margin of maneuver when it comes to restricting the freedom of the dhimmī.
Two Paradigms in Conflict
The dispositions of Islamic law pertaining to the non-Muslim under Muslim dominion, and the status of the apostate, did not enjoy a rigorous, nor effective, application during the whole Middle Ages. Non-Muslims were given a significant degree of autonomy in the management of their own communities within the millet system, put in place by the Ottoman empire in the nineteenth century – as part of its political and economic reforms. Unlike the modern nation-state, however, citizenship was still tied to religious identity. The dhimmī status and the other territorial categories of classical Islamic law were still present.
The abolition of the caliphate, on March 3 1924, and the advent of the modern nation state in Muslim majority countries, were accompanied by the adoption of a code of positive laws – modeled after those of Western countries. This is not the place to illustrate the complex legal reforms enacted in the Muslim World. Many academic studies have dealt with the political and religious “reformism” which took place in India, the Middle East and Maghreb, in the nineteenth century. One aspect is worth mentioning here: the will of the great Islamic religious institutions to gradually introduce the norms of classical Islamic law in the new system of positive laws with the objective of creating a unified code for Muslim countries.
The condification (taqnīn) of fiqh [Islamic jurisprudence], modelled after the secular Western codes, preserved the inequality of rights among men-women, Muslim-dhimmī. It started in the first half of the last century, and continued with the promulgation of different human rights charters, modeled after the 1948 Universal Declaration of Human Rights. Their freedom of conscience is substantially restricted in scope compared to the latter. These initiatives clearly convey the great tension inherent in modern Islam. On the one hand, the will to mimic a classical order centered around the primacy of religion and “God’s rights,” – ensuing, de facto, in an unequal distribution of rights and a limitation of fundamental liberties. On the other hand, the gradual establishment of positive laws following the Western model and the primacy of individual liberties.
In 1990, the Organization of the Islamic Conference, adopted the Cairo Declaration on Human Rights in Islam, explicitly affirming the primacy of God’s rights and humanity’s condition of “servitude” with respect to God. Article 10 reads: “Islam is the religion of unspoiled nature. It is prohibited to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.” Article 30 of the 2004 Arab Charter on Human Rights states more subtly that “Everyone has the right to freedom of thought, conscience and religion.” However, it leaves some margin for arbitrary interpretation, by adding that “no restrictions may be imposed on the exercise of such freedoms except as provided for by law.” These two charters clearly depart from international human rights conventions in other respects. Similarly, in 1978, a committee of ulama from al-Azhar presented a project for a Universal Islamic Constitution, while the Arab League completed in 1996 a unified penal code, with the unanimous approval of the Ministers of Justice belonging to member countries.
Considering the increasing obsolescence of a large part of Islamic law, particularly in the field of penal law, its re-enactment by positive laws in Muslim majority countries represents a major challenge. Moreover, the persistence in some Muslim countries of a customary law derived from sharia makes it possible for a judge to prioritize the latter over secular law, especially in family and personal matters. The reenactment of medieval sharia is fairly difficult to assess. It stands at the intersection between a “world-view” promoted by the majority of religious leaders – in which the sacredness and immutability of revealed texts is prevalent – and political agency, in which the instrumentalization of religion plays an important role in the control of the masses. The result, in the twentieth century, has been the progressive restriction of freedoms in the Muslim world, all the while Wahhabism and an all-encompassing form of Islam (promoted by Islamists groups) have been widening their influence in Muslim-majority countries, both in the political arena and within Islamic institutions.
The “Arab Springs,” and the implementation of the most extreme dispositions of Islamic law by ISIS have produced turmoil in the institutions and religious leaders. The vast legal patrimony developed in medieval times is being disseminated with no filter among Muslim masses. Both the Egyptian and Moroccan case exemplify this tension and question the ability or, even worse, the will of contemporary religious leaders to think of a society’s “Islamicity” apart from a confessional prism, of citizenship as distinct from religious belonging.
 Muhammad Shāma holds a PhD (1968) in comparative religion from the Philosophy and Humanities Department of the Free University of Berlin. He has been more than once featured in the Egyptian press, due to his statements on religion, considered too liberal.
 This verse makes reference to a group of people who have twice betrayed Islam. If the Qur’an were to command the death penalty for apostasy, this case of “reiterated apostasy” would find no place here.
 “‘Ne pas tuer l’apostat’ provoque une crise entre Zaqzûq et Shâma,” Al-Muhīt, October 19 2010, http://www.moheet.com/news/newdetails/15505/0/0.html
 “Wazīr al-awqāf al-misrī yu‘annif mustashār ajāza imāmat al-mar’a li-l-rijāl. Ittafaq ma‘a-hu ‘alā al-tarāju‘ ‘an fatwā-hu” [The minister for Religious Affairs reprimands one of his advisers for authorizing women to lead the Islamic prayer for men. He has had him agree to withdraw his fatwa], Al-‘Arabiyya, April 3 2005, http://bit.ly/2g98Cqm
 On July 2007, the statements of the mufti of Egypt, ‘Alī Gum‘a, on the need to respect everyone’s religious freedom, had raised a heated debate in many Arab countries. Cf. “Muftī Misr: haqq al-ridda makfūl wa-lā ‘iqāb illā idhā haddadat usus al-mujtama‘,” [The mufti of Egypt: apostasy is a protected right which does not call for any punishment, unless it destabilizes the foundations of society], Al-‘Arabiyya, July 27 2007, http://bit.ly/2grEbIQ
 Shubhat al-qawl bi-qatl al-murtadd [The ambiguity of the thesis in support of the death penalty for apostasy], available on the official website of the Fatwa Council of Egypt http://bit.ly/2yVlunr
 “Ulamā’ al-Maghrib yatarāja‘ ‘an fatwā qatl al-murtadd” [Moroccan ulama reinterpret the fatwa on the death penalty for apostasy], Al-‘Arabī al-jadīd, February 6 2017, http://bit.ly/2y9xtPg. The full text of the new fatwa was advertised on February 7 2017 by the Dinpresse website, http://dinpresse.com/blog/5249
 Omero Marongiu-Perria, Rouvrir les portes de l’Islam (Atlande, Neuilly-sur-Seine, 2017).
 A detailed description of the tribal society at the time of Qur’anic revelation is provided, among others, by Jacqueline Chabbi, Le Seigneur des tribus. L’Islam de Mahomet (CNRS éditions, Paris, 2013).
 Abū ‘Abd Allāh Muhammad al-Qurtubī (1214-1273), a Muslim jurist and theologian, was born in Cordoba, Andalusia. The authority of his juridical exegesis of the Qur’an is to this day uncontested.
 Al-Qurtubī, Al-Jāmi‘ li-ahkām al-Qur’ān (Dār al-fikr, Dimashq, s.d.), v. 2, pp. 255-257.
The evolution of modern sharia is discussed by Baudouin Dupret and Sami A. Aldeeb Abu-Sahlieh. See, for example, B. Dupret – A.Salvatore, “La Sharia moderne en quête de droit : raison transcendante, métanorme publique et système juridique,” Droit & Société 39 (1998), pp. 293-316 ; and S.A.A. Abu-Sahlieh, “Rôle de la religion dans l’harmonisation du droit des pays arabes. Réflexions à propos du droit égyptien et des travaux de la Ligue Arabe,” Revue internationale de droit comparé 59, n° 2 (2007), pp. 259-283.
 A detailed analysis of the Unified Penal Code of the League of Arab States is provided by Hamdan Hanafi, La liberté de religion dans les États de droit musulman, [doctoral dissertation, Law School, Jean Monnet University (Saint-Étienne, France)] and Sami A. Aldeeb Abu-Sahlieh, Les sanctions dans l’islam: avec le texte et la traduction du code pénal arabe unifié de la ligue arabe (CreateSpace Independent Publishing Platform, 2016).
 See Hamadi Redissi, Le Pacte de Nadjd, ou comment l’islam sectaire est devenu l’islam (Seuil, Paris, 2007), and Dominique Avon & Abdellatif Idrissi, “Du Coran et de la liberté de penser,” laviedesidees.fr, October 21 2008, http://bit.ly/2yWLrmM