5.1. Freedom of Religion and Apostasy
Several verses of the Qur’ān deal with the notion of apostasy—turning away from Islam to unbelief or to another religion. These texts severely condemn apostasy and warn apostates of punishment in the afterlife. They describe apostates as those whose deeds have become worthless in this world. According to the Qur’ān, they will reside in hell (2:217; see also 5:5 and 3:91). Some Qur’ānic verses describe apostates as having strayed from the right path (2:108; 4:167). One verse describes them as being enticed by Satan (47:25), and another warns that they cannot expect God’s forgiveness (4:137). The Qur’ān also says that apostates are cursed by God and the angels (3:87).
Classical Muslim jurists commonly believed that, for a Muslim, nothing was worse than becoming a disbeliever (
El-Awa 1982, p. 54). As El-Awa notes, “the common view among Muslim jurists … is that apostasy from Islam is a crime for which the death penalty is prescribed” (
El-Awa 1982, p. 50). It should be noted that since there is no Qur’ānic verse explicitly prescribing the death penalty for apostasy, early jurists “rarely attempted to demonstrate that the punishment for apostasy was based on the Quran” (
Saeed and Saeed 2004, p. 57), but rather relied on a number of hadith to support their claim. Part of the reason for the convergence of opinion about the punishment associated with apostasy among classical scholars and jurists appears to be that they lived in a context that limited freedom of religion somewhat. When it came to matters related to freedom of religion, they listed verses of the Qur’ān such as Q 2:256—which states that there should be no compulsion in religion—as abrogated (
Crone 2015). The ideas of classical scholars were consistent with societal norms that did not support freedom of religion in the way we understand it today. In the context of the twenty-first century, however, freedom of religion is a widely accepted norm and is present in many international covenants and declarations. For example, according to Article 18 of the Universal Declaration of Human Rights, “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.” (
Universal Declaration of Human Rights 1948). Given the radical differences between the current macro context and that of early Islam, there are questions as to how apostasy and its punishment should be approached today. As will be demonstrated below, the contextualist approach provides a more realistic and applicable understanding of the relevant texts by taking into account their contexts, both at the time of the revelation and early Islam and in the modern period.
During the Meccan period of Prophet Muhammad’s prophetic career, the Qur’ān insisted on absolute freedom of religion. This concept continued in the Medinan verses of the Qur’ān. Several verses (both Meccan and Medinan) state that everyone is free to accept Islam or reject it (see 18:29, 10:108, 9:41 and 27:91–3). Kadivar refers to Q 11:28, which deals with the narrative of Noah, noting that when Prophet Noah declared his prophethood he was confronted with resistance, yet he never forced the people to believe in his religion.
2 During the Medinan period of Prophet Muhammad, although the basic notion of freedom of religion continued, an important new idea was added: “religious belief as a marker of inclusion within a political community” (
Saeed 2012, p. 241). This meant that “Muslims became a religious
and a political community” (
Saeed 2012, p. 241). In this sense, membership in the nascent Muslim community was a significant matter for the Prophet, and Muslims were required to express their sense of belonging to the community. Therefore, turning away from Islam meant abandoning one’s membership of the Muslim community, which could ultimately threaten the integrity, safety, and security of the community. It is important to note that even in such a context, the Qur’ān does not specify any worldly punishment for apostates, let alone capital punishment—as was later emphasized by jurists. Referring to Qur’ānic verses such as Q 2:217, Q 3:177, Q 3:86–7, Q 16:106, and Q 4:115, a number of contemporary Muslim scholars have argued that there is no worldly punishment prescribed for apostasy in the Qur’ān. Muhammad Abed al-Jabiri argues that the punishment for apostasy in the Qur’ān includes “a curse by God, His wrath, and hell but not execution” (
Al-Jabri 2015, p. 198). Similarly, the Indonesian scholar Nurcholish Madjid argues that the Qur’ān does not prescribe any worldly punishment for the apostate. This means that “It is God, not the state [or people] that will pass judgment on apostasy and this judgment will come in a time of God’s choosing” (
Jones and Saeed 2006, p. 84).
Moreover, during the lifetime of the Prophet, apostates whom the Prophet ordered to be executed had committed other crimes, like murder. They were not simply executed for a mere change of belief (
Saeed and Saeed 2004, pp. 62–64). In addition, the nascent Muslim community encountered dangers from various fronts, not only during the Prophet’s life but also shortly after his death. In this context, turning away from Islam was perceived as weakening the Muslim community and thus equal to betrayal or treason. Indeed, in the context of the early period of Islam, in which the Muslim community was under threat from armed enemies—a condition referred to as “a state of war” by Madjid (
Jones and Saeed 2006, p. 84)—“every Muslim was, in some, sense a soldier”, and thus the punishment of a person leaving the community was naturally death (
Jones and Saeed 2006, p. 84). This means that the traditional rulings on apostasy made sense in a specific condition and emerged “as a result of a specific interaction of event, circumstance, time and place” (
Jones and Saeed 2006, p. 84). Al-Jabiri refers to the wars of apostasy (
ridda) that occurred during the caliphate of Abu Bakr (d. 634) to further explain this context. According to him, apostates were fought and killed at that time, but not because of a simple change of faith. Rather, they posed a danger to society and the state. Indeed, the wars of apostasy were launched against those who attacked the Muslim state, not against those who simply changed their religion and did not join the enemy to attack the nascent Muslim community (
Al-Jabri 2015, p. 199).
Taking the context related to the rulings on apostasy into consideration, what was punishable appears to be “collusion with the enemy or turning into a thief or enemy in arms,” not a mere change of belief, al-Jabiri argues (
Al-Jabri 2015, p. 199). Nasr Hamid Abu Zayd comes to a similar conclusion. According to him, conversion to another religion or to unbelief by itself does not call for any form of punishment. The act is punishable only when it is associated with aggression or hostility or when the perpetrator engages in violent acts against the state or society. Extrapolating this approach to the contemporary era, we can conclude that only those who renounce the Muslim community/state and become aggressors, conspirators, or spies, or those who engage in violent acts or in crimes such as murder or theft, should be subject to such punishment. Indeed, the punishment should not be applied to those who simply change their religion or turn to disbelief (
Al-Jabri 2015, p. 199). For Abu Zayd, freedom of religion is guaranteed in the Qur’ān in verses such as Q 2:256. He claims that “the freedom to convert to another faith after accepting Islam … is left to man’s essential free choice” (
Abu Zayd 2001). Today, we live in a context that is very different from that of the earliest Muslim community. Freedom of religion is now a widely accepted norm and can be found in many constitutions and domestic laws. In addition, those laws that were developed in early Islam based on the notion of an intimate relationship between religion and membership in the state no longer apply.
The same approach can be applied to some of the Qur’ānic verses about the People of the Book. Some verses in the Qur’ān contain polemic language against Jews and Christians (see 9:34; 4:161; 5:13; 5:18) and have been used by many textualist scholars to claim Islam’s inherent superiority to Judaism and Christianity (for some examples, see
Sirry 2014). This exclusivist approach has become even more overt today with the rise of violent extremist groups like al-Qaeda and, more recently, the so-called Islamic State of Iraq and Syria (ISIS). Qur’ānic verses such as these are often used by some Muslims to prevent or discourage Muslims from having positive social relations with people of other faiths (See
Mohamed Bin Ali 2016).
From a contextualist perspective, Qur’ānic verses related to the relationship between Muslims and the People of the Book represent the conditions in which Prophet Muhammad and the Muslim community found themselves. As Munim Sirry argues, “the way in which the Qur’ān addresses the Jews and Christians of Medina corresponds to the various stages of … the first community of believers” (
Sirry 2014, p. 45). Whereas in the Meccan period the Qur’ān took a positive position vis-à-vis Jews and Christians, Medinan verses are marked by “a more polemical discourse” (
Sirry 2014, p. 45). This discourse was contextual and emerged at the time when the Prophet Muhammad’s conflicts with the Jews and Christians intensified and Islam sought to create a distinct religious community. Sirry notes that in this context, the Qur’ān responded to “the divergence of polemical statements that had been in the air for a while” (
Sirry 2014, p. 55), meaning that “the sectarian milieu of Arabia in the early development of Islam contributed to the hardening of Muslim position against … other monotheists like the Jews and Christians” (
Sirry 2014, p. 60).
Therefore, polemic verses about Jews and Christians should be understood as a result of the complex process of Islam’s formation as a new religion, rather than general statements about them (
Sirry 2014, p. 45). Such verses are contextual in the sense that they reflect the ongoing conflict between the nascent Muslim community and the Jewish and Christian communities in Arabia. Even in that context, the Qur’ān confirms the previous scriptures. Indeed, the Qur’ān confirms that the Torah and the Gospel are scriptures revealed by God to prophets before Prophet Muhammad, not only in its Meccan verses, but also in Medinan passages. For instance, the Qur’ān states: “We have revealed to you as We revealed to Noah, and the prophets after him, and We revealed to Abraham, Ishmael, Isaac, Jacob, and the Tribes, Jesus and Job, Jonah and Aaron and Solomon, and We gave to David Psalms” (4:163; see also 2:42; 3:50; 5:46). Therefore, the Qur’ān’s criticisms of certain elements of Judaism and Christianity should not be “understood as their complete abandonment by God” (
Sirry 2014, p. 62). Moreover, even in the context of tensions and hostilities between Muslims and non-Muslims, the Qur’ān held that hatred of others should not prevent them from being treated justly (5:8), nor that the invitation to accept Islam should be undertaken by force or compulsion (see, for example, 10:99).
To sum up, the religious polemics found in some Qur’ānic verses are the result of a particular historical context, influenced by specific events throughout the course of Islam’s formation as a new religion in the midst of paganism and other monotheistic religions—i.e., Judaism and Christianity. Continuing to apply them today—which could prevent Muslims from establishing positive social relations with people of other faiths—would indicate a misunderstanding of scriptural polemics in their original context. As Firestone states,
What is too often forgotten is the fact that every case of religious polemic occurs within a specific and limited historical context. Scriptural polemic inevitably records the tension and arguments of specific events and times early on in religious formation. Continuing to apply them to the current age is simply an error and misunderstanding of the role and meaning of scriptural polemics.
5.2. Qur’ānic Laws Related to Punishment
Texts related to the laws of punishment, such as retaliation (
qiṣāṣ) or the amputation of the hand of a thief, also yield different results if a contextualist approach is adopted. According to the Qur’ān, the hand of a man or woman should be cut off as a punishment for theft (5:38). The Qur’ān provided this text at a time when societal conditions were different. In the context in which the Qur’ān emerged, this form of punishment was not considered unjust—it was already apparently widely accepted in the pre-Islamic era and seen as necessary for maintaining social order in the absence of a political authority or government which could control the society as a whole. As Abdelmadjid Charfi explains, amputation was consistent with a nomadic society whose structure was “based on subsistence economies” (
Charfi 2003, p. 65). In this environment, it was natural that “theft should be punished severely, as this type of crime put the victim’s very existence in jeopardy” (
Charfi 2003, p. 66).
In many respects, the rise of Islam did not dramatically change the civic and social situation of the pre-Islamic era. The nascent Muslim community lived largely in a Bedouin context, and many laws that were developed to respond to the social situation of that era were simply transported into the legal system of the new religion (
Al-Jabri 2015, p. 85). According to Muhammad Abed al-Jabiri, “in a Bedouin society, where the people move about with their tents and camels in search of pasture, it was not possible to penalize the thief by imprisonment” (
Al-Jabri 2015, p. 85) due to the lack of jails or even walls or fences in the desert. There was no authority to guard the prisoner or to provide him or her with food and clothing. Thus, the only reasonable penalty for theft was corporal punishment, which could deter robbery, thereby guaranteeing social stability (
Al-Jabri 2015, p. 85).
When Islam emerged as a new religion, an alternative punishment that could guarantee social stability was unavailable. Indeed, in keeping with prevailing social conditions, Islam did not introduce a new form of punishment. However, as Charfi argues, “when society evolves and adopts values in keeping with its evolution,” new forms of punishment that recognize our inherent human dignity should be taken into account. This means, for him, that the punishment should not be conducted in such a way that our inherent human dignity is jeopardized. Today, other forms of punishment, such as incarceration, may be used instead. These punishments do not represent, in Charfi’s opinion, a deviation from the spirit of the Qur’ān or the Prophet’s teachings “as long as they fulfil the ultimate aim of guaranteeing social stability” (
Charfi 2003, pp. 65–66). The form of punishment is therefore not fixed and eternal; rather, it is the purpose of the punishment that should remain unchanged. While under particular conditions amputating a thief’s hand ensured social stability, in a new context another punishment may have the same result. In other words, based on the spirit of the Qur’ān, what can be claimed is that theft is punishable, but the type of punishment varies from time to time and from society to society.
Another punishment in the Qur’ān concerns retaliation (qiṣāṣ). The Qur’ān mentions qiṣāṣ in verses such as Q 5:45: “We prescribed for them a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, an equal wound for a wound.” Another verse states, “You who believe, fair retribution is prescribed for you in cases of murder: the free man for the free man, the slave for the slave, the female for the female” (2:178). Traditionalist scholars often consider qiṣāṣ one of the necessary precepts of religion which should be implemented at all times and in all places. For example, according to Ayatollah Golpayegani—a contemporary Shia scholar—“if a Muslim questions the punishment of qiṣāṣ, he is considered an apostate because he has denied a religious precept explicitly mentioned in the Qur’ān, a precept which is of the necessities of the religion” (Kayhan Magazine 22 May 1981).
In the era of the revelation, contextualists argue,
qiṣāṣ, in the form of taking a murderer’s life, was the best way to resolve the debt between the tribes to which the murderer and the murdered belonged. In tribal societies like Arabia, killing a member of a tribe often led to an ongoing conflict between the two tribes, leading to bloodshed and innumerable losses of life. Therefore, the underlying logic behind
qiṣāṣ was to prevent individuals from sparking greater warfare. This is why the Qur’ān, in the last part of 2:179, indicates that there is life in
qiṣāṣ, meaning that its implementation will preserve life. According to the Qur’ān, no more than a single life should be taken for another. When discussing
qiṣāṣ, the Qur’ān also emphasizes the principle of proportionality between the crime and the punishment (2:178). This was a response to “the pre-Islamic practice of tribal feuding and disproportionate retaliation for the killing of noblemen or tribal chiefs” (
Abou El Fadl 2006). The idea that retaliation should be proportionate to the crime is also indicated in another verse: “if anyone commits aggression against you, attack him as he attacked you, but be mindful of God, and know that He is with those who are mindful of Him” (2:194). This verse warns believers against committing extra aggression and discourages them from taking a revenge greater than what they were afflicted with. This was also a response to the pre-Islamic context in which an aggregation resulted in disproportionate retaliation or the loss of many lives in retaliation for the murder of a single person. It is important to note that although the Qur’ān permitted Muslims to conduct
qiṣāṣ, it strongly encouraged forgiving the offender in the same verses dealing with
qiṣāṣ. Q 5:45 praises forgiveness in such a way that it is considered as atonement for a person’s bad deeds: “if anyone forgoes this out of charity, it will serve as atonement for his bad deeds”. Similarly, Q 2:178 encourages believers to forgive the culprit: “if the culprit is pardoned by his aggrieved brother, this shall be adhered to fairly, and the culprit shall pay what is due in a good way. This is an alleviation from your Lord and an act of mercy”. This means that forgiveness and patience are moral virtues that are emphasized by the Qur’ān even in the context of tribal conflicts.
Abdelmadjid Charfi notes that “in the context of a tribal system and in the absence of state institutions, the family of the victim could take matters into their own hands.” This often led to the loss of many lives. For Charfi, capital punishment in the form of
qiṣāṣ could be replaced by “imprisonment or other sanctions” in the modern context. Indeed, “there is no reason for not going further and abolishing capital punishment, especially in the complex setting of modern urban life” (
Charfi 2003, pp. 63–65). Similarly, Muhammad Mujtahed Shabestari argues that since today’s context is different from that of the Prophet’s tribal society,
qiṣāṣ cannot be implemented as punishment for murder. For Shabestari, what must be taken into consideration in the case of
qiṣāṣ is the eternal value the Qur’ān sought to establish—i.e., the prohibition against excessive violence—not a fixed law that should be maintained at all times and in all places. In other words, while the underlying values or principles are fixed, the laws themselves are changeable, contextualists argue. The laws are there to achieve a particular result, i.e., the prevention of excessive violence. Therefore, the relevant law may be changed under different circumstances (
Akbar 2020b, pp. 115–16), according to this view.
Such discussions constitute attempts to interpret verses contextually. In doing so, these scholars would argue that they are not attempting to “read into” the Qur’ānic text whatever they want. Rather, they are attempting to approach interpretation in a principled and methodologically sound manner.