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"Religious Discrimination" in Muslim Laws: Replying Christian Criticism By Sanusi Lamido Sanusi LAGOS,
FEBRUARY 16, 2004 At a recent conference on Shari’ah held at the University of Jos, three questions were asked at different points, (one verbally and the other two in writing,) by Christian participants that I believe need to be addressed. The questions suggest that Islamic law is discriminatory against adherents to other faiths, and the examples given suggest that this is not a case of an attack against Islam but an expression of what are seen to be factual propositions. The three examples of discrimination highlighted, and to which I now turn in the following order, were:
The instinctive response of Muslims to these criticisms is to react with emotion and indignation. Articulate respondents would point out, correctly, that the Christian church has not exactly been an epitome of religious tolerance. Evidence abounds of excommunications, persecutions and judicial murders of all sorts of “heretics” and “apostates” by the catholic church. Who does not know the fate that has befallen, over centuries, the Aryans, the Monophysites, the Jacobites, the Manichaeans, the Unitarians, not to speak of the Jews (‘murderers of Christ”) and the Muslims (“infidels and pagans”) at the hands of the catholic church? Who can forget the Spanish inquisition, the church-inspired and -sanctioned anti-Semitic “witch”-hunts, the collaboration of the Pope with the Nazis, or the bloody crusades against Muslim lands? In addition, persecution was not an exclusively catholic phenomenon. The great protestant reformer, Calvin, had personally ordered the execution of the Spanish Unitarian theologian, Michel Servetus, for apostasy. But to point out the history of intolerance and religious discrimination in the Christian church is hardly a response to charges of religious discrimination leveled against Muslim law. What is required is a calm dialogue that addresses each of these specific issues in turn, explains the true position of Muslim jurists on the topic, analyses the rationale for each ruling, and then permits the honest and intelligent reader to take a decision as to whether the allegation of discrimination really holds true. I will show in what follows that these allegations are only true based on the simplistic and incomplete picture given to the three “rulings” under consideration. I will show that the position of the law is not as settled and simplistic as it seems, and also argue that none of these positions portends any degree of religious discrimination on a correct understanding of the law. Apostasy The position that is most prevalent in readings of Muslim law is that the death penalty awaits any Muslim who changes his religion to another, as a fixed penalty for a religious offence known as Ridda, or Apostasy. There is no verse in the Qur’an supporting this ruling. Jurists base their ruling on a tradition reported by al-Bukhari and several others to the effect that when news reached Ibn ‘Abbas that ‘Ali had burnt a number of “Zanadiqa” to death, Ibn ‘Abbas said : “ If it was me, I would not have burnt them because the Prophet prohibited it (ie burning human beings). But I would have killed them (anyway) because the Prophet said: ‘Whosoever changes his religion, Kill Him (man baddala dinahu faqtuluhu)’”. It is this last quote from the Prophet that forms the basis of the said ruling. While jurists are agreed on the authenticity of this tradition, they differ very widely on the appropriate interpretation and thus, the law concerning apostasy. Understanding the different viewpoints, as well as the arguments for what I consider the correct one, is crucial to our discussion of this subject. Jurists differ in four main areas relating to this tradition. First, they differ as to whether it is restricted to the case of a Muslim who converts to another faith, or if its general tenor includes, for example, a Jew who converts to Christianity; Second, they differ as to whether it applies only to Muslim males who change their religion or if it applies to men and women alike; Third, they differ as to whether an apostate should be given an opportunity to repent and return to Islam or not. And those who say he should have the opportunity differ as to whether he should be invited to retract from apostasy once or thrice. Those who say once in turn differ as to how long he should be given to make up his mind. Some say immediately, others three days, others one month, and others a whole lifetime, which means he will never be killed; Fourth, and most crucially, they differ over the nature of the punishment imposed for apostasy. Is it a hadd (fixed) punishment that may never be set aside? Or is it a discretionary (ta’zir) penalty that may be invoked or reduced at the discretion of the state depending on the gravity of the consequence of the act on the polity? I will take these disputes in turn. It is already clear that the matter is very complex because the Qur’an is completely silent on any worldly punishment for apostasy and the sole Tradition that forms the basis of rulings is open to many interpretations. Before I go into the details of the fine points in law on this complex tradition, let me state up-front my own personal opinion on this tradition and its relevance to the issue at hand. I do not accept that this tradition refers to Muslims who leave the religion of Islam for other religions. For the reader to understand this, he should follow my argument closely and see for himself where it leads. I will later in this section present all the arguments for religious freedom from the Qur’an and Sunnah. I will present evidence from the Qur’an that a believer who chooses to disbelieve after believing is not to be killed. I will present instances in the life of the Prophet where Muslims who left the religion (such as al-Harith ibn Suwaid and his group), even if they returned (like ‘Abdallah ibn abi Sarh), were not killed by the Prophet. I will also mention that in the time of the companions, Muslims who left the religion and followed false “prophets” like Musaylamah al-Kazzab, al-‘Anasi and Tulayhah al-‘Asadi, even though they were fought by Abubakar and the companions and returned to the fold, were not harmed or killed. But this is not even the point here. The first point I wish to make is that the string of words in the tradition reported by Ibn ‘Abbas, “whoever changes his religion, kill him”, is a string that contains what students of logic refer to as a lexical ambiguity, (as opposed to a structural one). A lexical ambiguity occurs where a single word in the string can be understood in more than one way, and usually we need to return to the context to understand which meaning is intended. In the case of this tradition, the ambiguity comes from the verb “to change”. What precisely does it mean to say a man has “changed” his religion? Does it mean that the man has left his religion for another, which is a valid interpretation of the string? Or does it mean that the man has introduced changes into his religion, (thus changed it), which is also a valid interpretation of the string? This ambiguity exists not just in the English rendering, “changed”, but also in the original Arabic “baddala” (and its synonyms like “ghayyara”). A man may change his religion by adopting another one, such as a Muslim declaring that he is now a Christian. Or he may change it by holding on to alien and heretical beliefs and trying to pass these off as the correct religion, such as a Muslim who believes God Almighty descends and enters the body of certain men, or that everything in reality is God, or that, as the Manichaeans believe, Satan is eternal, omnipotent, and equal and opposite to God. How do we know what the Prophet was referring to when he made that statement? I propose that we accept the principles of logic, and return to the context, in order to understand the text. In
the tradition reported by al-Bukhari through ‘Ikramah, Ibn ‘Abbas
gave this tradition as justification for killing, (but not burning), Zanadiqa
(sing. Zindiq). These are persons who are accused of Zandaqa.
But what is Zandaqa, and hence, who is a Zindiq and who
are Zanadiqa? Zandaqa is not a religion, so a Zindiq is not a man who
declares that he is changing his religion from Islam to a new religion
called zandaqa! The term Zandaqa, is a frequently used, highly charged
but ill-defined term. It was already in wide circulation by the early
‘Abbasid period. The Zanadiqa all claimed to be Muslims, which is what
makes the term dangerously ill-defined, but what they seem to have had
in common was that they held heretical beliefs, most probably a the
Manichaean beliefs in some form of dualism. Their conflict with Muslim
legal authorities were therefore similar to the conflict of their
Manichaean predecessors with Church authorities. Muhammad Qasim zaman
has an excellent discussion of Zandaqa and the Zanadiqa in his book, Religion
& Politics under the Early ‘Abbasids: The Emergence of the
Proto-Sunni Elite. In the particular case of the group burnt by ‘Ali, the incident is widely known in Muslim history to the extent of being anecdotal. It is generally agreed that the people ‘Ali burnt were among his followers, persons committed to his cause, but who went to extremes in their devotion to him and introduced heretical beliefs into Islam with ‘Ali himself at the center of the strange creeds. Some say that this group believed that ‘Ali was the appropriate recipient of the Message of Islam, but that it was erroneously given to his cousin, the Prophet, because of the close physical resemblance between them. Others say that these people said about ‘Ali what the Christians say about Christ, that ‘Ali was God incarnate or God in the flesh. One anecdote suggests that when ‘Ali asked that they be burnt for refusing to retract these heresies, some of them shouted : “You see, we told you he is God, who else but God punishes with fire!” If this is the case, then the Zanadiqa were burnt by ‘Ali not because they openly recanted their faith, but because they introduced heresies into Muslim teachings, thus trying to change the consensus on orthodox doctrine. They were a threat to the cohesion of the Ummah, and questioned matters of doctrine that had been settled by the consensus of scholars. Either one of the above alleged heresies was sufficient as a negation of Muslim doctrine. The religion of Islam is based on belief in the absolute unity of God and His otherness from His creations, as well as in the total integrity of the Message to the Holy Prophet. The introduction of the above heresies into Islam completely negate its teachings and christianize it, thus changing it in a most dangerous and unacceptable manner. They therefore were guilty, not of changing their religion by declaring that they were no longer Muslims and professing another faith, but of changing Islam itself through the introduction of heretical beliefs. It is for this reason that ‘Ali burnt them. It is also for this reason that Ibn ‘Abbas could rely on the tradition “He who changes his religion, kill him” as justification for killing them. Two points I will make before I move on to other substantive issues. First, although I consider that this is the meaning of the verb “change” in the context of this tradition, I do not by that suggest that it is impossible that the Prophet intended the term in both of the senses inferred by the ambiguity. What I do suggest is that for us to extend the meaning to the second sense not covered by this context, we must produce further textual and contextual justification. This tradition is not sufficient proof for the proposition that a death sentence awaits any Muslim who adopts a new faith, especially in view of the discussion that will follow. Second, apostasy and heresy are among the greatest sins that a Muslim can commit. But this does not mean that there is a judicial punishment for them. The only faith that has meaning in Islam is voluntary true belief. A Christian who pretends to be a Muslim because he is afraid of being killed by the state is not a Muslim. As Ayatollah Mutahhari remarked, just as you cannot force a child to solve a mathematical problem by whipping him, you cannot force a man to have faith. The point being made therefore is not that apostasy or heresy are minor sins, but that there is a fundamental principle of freedom of religion in Muslim laws, and this applies both to the right to accept and reject the faith initially, and to the right to remain in it or leave it after joining. This is a completely different question from whether one ought to exercise that right, or whether one’s salvation is better served for having done so. Now I return to the disputations of jurists. On the first of the four points of difference above most scholars hold that the punishment is for a Muslim who changes his religion. The Imam Shafi’ee extends it to the Jew who converts to Christianity and vice versa because according to him the Prophet said “whosoever changes his religion” and this therefore includes religions other than Islam. The Maliki jurist Ibn ‘Arabi mentions in his Kitab al-Qabas an isolated and rejected view among some Maliki scholars that supports Shafi’ee in this matter. The weakness of Shafi’ee’s logic becomes apparent when you recognize that he would not consider the death sentence for a Muslim or Jew or polytheist who converts to Islam. It seems clear that the tradition specifically refers to a Muslim who changes his religion, unless he does so under compulsion, since such a case is explicitly considered excusable by the Qur’an (16: 106). The second point of dispute relates to whether or not this ruling applies to both men and women. The Imam Abu Hanifa holds that a woman who changes her religion from Islam is not covered by this ruling based on a number of arguments. First, the Hanafites say that the Prophet used a male pronoun (“kill him”). This is a clear unambiguous text (nass) with respect to males, but only includes females by inference from an apparent (zahir) construction. That it includes women is a strong probability but this does not preclude the possibility that the Prophet intended only males by the construction. Second, they rely on the tradition of the Prophet in which he prohibits the killing of women in war against unbelievers. They hold that the Muslim woman who becomes an unbeliever enjoys the same protection from being killed as other unbelieving women. Finally, they note that ‘Ibn ‘Abbas, who reported the tradition on which the ruling is based, himself ruled that women should not be killed for apostasy, and this is reported in the Musannaf of Ibn Abi Shaibah and that of Abd al-Razzaq. The third area of difference lies in whether or not an apostate must be given the opportunity to repent, before applying the punishment. The majority of scholars and jurists hold this to be the case, and these, according to Ibn Qudamah in al-Mughni, include ‘Umar, ‘Ali, ‘Ata’, al-Nakha’ee, Malik, al-Thawri, al-‘Awza’ee, and Abu Hanifa. It is also one of a number of views held by Shafi’ee and Ahmad Ibn Hanbal. The second view held by Shafi’ee and Ahmad, and shared by ‘Ubayd, Tawus and Hasan, is that it is desirable to give an opportunity to repent but not necessary. He/she may be put to death without being called upon to return to Islam. Then those who say that the opportunity to repent must be given differ on the number of times he should be invited to repent and how long he should be given. Al-Thawri holds that he should be invited three times and if he refuses he should be killed. Shafi’ee in one opinion holds that he should be invited once and if he refuses he should be killed immediately, and this is the view of Ibn Manzar. In a second opinion, he says he should be given three days to reconsider his position, and this is the view of ‘Umar, Malik, Ishaq and Abu Hanifa. ‘Ali holds that he should be given one month to reconsider. Finally Ibrahim al-Nakha’ee believes he should be given the whole of his life as an opportunity to repent, and this view is attributed to al-Thawri as well by ‘Abdul wahhab al-Sha’rani. It is this last view that has major implications for our subject, because the implication is that an apostate should not be killed at all, according to the jurists who hold it. Finally, there is the crucial dispute over the nature of the punishment and the crime. If apostasy is a religious offence against God, is it punishable in this world or by God in the hereafter? I have already stated above that al-Nakha’ee and, according to Sha’rani, al-Thawri, hold that the apostate is a grave sinner who should however be continuously called back to the fold for the rest of his life, and not killed. By implication, they do not consider the offence a hadd offence with a fixed punishment that must be carried out. This view is similar to the view that apostasy is a sin that carries no fixed punishment, and any penalty for it is discretionary (ta’zeer). This is a view held by the Hanbali scholar, Ibn Taimiya and he attributes it as well to the Maliki Imam al-Baji. Among Hanafites, the jurist Shamsuddeen al-Sarakhshi holds the same view. He says in al Mabsut that the fixed penalties or hudud are generally not suspended because of repentance, especially when they are reported and become known to the Imam. He then adds in the case of apostasy that “renunciation of the faith and conversion to disbelief is admittedly the greatest of offences, yet it is a matter between man and his Creator, and its punishment is postponed to the day of judgement(“fa’l jaza’ ‘alayha mu’akhkhar ila dar al-jaza’”) Sarakhshi’s position is shared by the late ‘Abbasid Hanbali scholar, Ibn Taimiyya, in al-Sarim al-Maslul. Ibn Taimiya discusses the question of the possibility of repentance and its implication for the various hudud offences. He argues that for highway robbers, the penalty may be set aside if they repent before their sentence is confirmed by the Imam and return that which belongs to the people they stole from. For the adulterer, the thief and the imbiber of intoxicants, there are two views in Hanbali law. The first is that if he repents the fixed punishment is to be set aside. The second is that taking the punishment is a component of his repentance. But both groups are agreed that once the case has been taken to the Imam, the punishment must be implemented whether or not he repents. As for the murderer and the slanderer, the unanimous view is that no repentance sets aside the penalty because it is the right of human beings that is at stake. When he comes to apostasy, Ibn Taimiya writes: “As for he against whom nothing is established other than simple apostasy (mujarrad al-ridda- the point here being apostasy not combined with say, abusing the Prophet or political treason), and he does not hide this apostasy, then from him too repentance is accepted according to the totality of scholars, except that which is reported from al-Hasan (that the penalty must be imposed) and also repoted from those who supposedly agree with him”. It is important that only in the case of apostasy does Ibn Taimiya assert acceptance of repentance without a time limit, and he does not suggest that the penalty should be imposed even if the Imam has ruled on the matter. I will return to this point later in the discussion on Ibn abi sarh. This position is also shared, based on a variety of arguments, by many modern scholars, among them ‘Abdul Hakim al-Ili, Isma’il al-Badawi, Mahmud Shaltut, the late Ayatollah Mutahhari, Mahmassani, Salim el-Awa and the Islamists Hasan al-Turabi and Rachid al-Ghannouchi. The Qur’an is full of verses proscribing coercion in matters of faith, the most explicit of which is II: 256 where God says “Let there be no compulsion in religion.” In several verses the Prophet is reminded that he is but a warner, not a coercer, and that if God had willed every one in the world would have accepted the same faith, and that guidance is from God alone. We read in X: 99 “And had thy Lord willed it, all those who live on earth would surely have attained to faith, all of them. Dost thou then think that thou couldst compel people to believe?” And again in X: 108: “Say (O Prophet!): O Mankind! The truth from your Lord has now come to you. Whoever chooses to follow the right path, does so but for his own good; and whoever chooses to go astray does so to his own hurt…”.And in XI: 118-9: “ And had thy Lord so willed, He could surely have made Mankind one community, but (He willed it otherwise, so) they continue to hold divergent views, save those upon whom thy Lord has bestowed His grace. And to this end He created them all..”And again in LXXXVIII:21-24: “So (O ProphetT, exhort them; thy task is but to exhort. Thou canst not compel them to believe. However, he who turns away and denies the truth God will cause to suffer a great suffering (in the Hereafter)” etc. But perhaps the most interesting verse is the following (IV: 137): “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.” The verse is interesting on two counts. First, it shows that people can believe and disbelieve and believe again and disbelieve. They have to be alive to do this. Second, if the penalty for leaving the faith is death, this is where it would have been mentioned, and it was not. I have already mentioned above that in the time of the Prophet, Muslims left the faith and returned and they were not killed. Among them was Abdullah ibn abi Sarh, the foster brother of Uthman ibn ‘Affan. This case is well known in history. Ibn abi sarh was one of the scribes of the Prophet and he committed apostasy and went back to Mecca slandering the Prophet and mocking him among the Quraysh, fabricating lies about him. On the day of the opening of Mecca, the Prophet commanded that whoever finds him should kill him even if he hangs on to the curtains of the Kaaba. Some companions hid him, and he came to the Prophet with the intercession of his brother ‘Uthman to repent and seek forgiveness. The Prophet tarried a while before accepting, but he also rebuked the companions present who did not kill him. “Hal la qataltumuhu? (Shouldn’t you have killed him?)”, he asked rhetorically. This is a summary but what interests me are the conclusions Ibn Taimiya draws from the story. Ibn abi Sarh was guilty of two crimes. One was apostasy. The second was abusing the Prophet. IbnTaimiya argues that when an apostate repents, his repentance is sufficient to set aside any pronounced worldly punishment of death. However, when a person abuses or slanders the Prophet, the death sentence remains. This is why the Prophet informed the companions that even after he had repented his blood still had no sanctity. And this situation continued until the Prophet himself forgave him. The death sentence that remained effectively on him was therefore not on account of apostasy, a right of God for which he had repented, but for the abuse of the Prophet, a right of the Prophet which left him at liberty to forgive or exact punishment. The interesting thing about Ibn Taimiya’s analysis, especially when we recall our earlier quote of his reference to “simple” (mujarrad) apostasy, is that it makes a distinction between apostasy qua apostasy, and apostasy combined with other things. An apostate who abuses the Prophet is killed notbecause of apostasy but because he abused the Prophet, and he would be killed anyway for that even if he never declared his apostasy and even if he never joined Islam because it is the right of the Prophet in law that whoever abuses him is put to death and the Prophet is no longer alive to forgive such persons. This explains Nigerian Muslim reaction to the Miss World article in ThisDay. Also if a Muslim who leaves the religion separates himself from the community and threatens its security he may be killed for sedition and treason, which are political offences. This is based on the tradition of the Prophet: “The blood of a Muslim who professes that there is no God but Allh and that I am His Messenger is sacrosanct except for three: A married adulterer, a life for a life, and one who has abandoned his religion while splitting himself off from the community.” But I digress. To continue with examples of apostates not killed by the Prophet, there was the case of al-Harith ibn Suwaid and a group from Mecca. We also know from the hadith reported by al-Bukhari from Jabir about the Bedouin who came to the Prophet in Madina and accepted Islam only to return feverish the next day and declare that he was withdrawing his faith. Not one of these persons was killed by the Prophet. I have also referred to the actions of the companions in this matter. So where does the hadith of Ibn ‘Abbas leave us? First, we must conclude that in Islam faith is a voluntary thing and there can be no coercion in religion. On my own understanding, the hadith refers to Muslims who change the religion by introducing heresies into its doctrines and creeds. Alternatively, we may begin by accepting the position of scholars who say the hadith covers all forms of “changing religion”, including leaving Islam for another faith. If we do so, we must recognize that almost all the scholars accept that if an apostate repents he must not be killed, even though they differ over the time limit for repentance. But therein lies the problem. If repentance is accepted, then apostasy is not a hadd offence with a fixed punishment. Secondly, once scholars accept that a Muslim apostate has the right to be given the opportunity to repent, they lose the right to set a time limit for his repentance. God says in the Qur’an (XXXIX:53-54: Say: “(Thus speaks God): O you servants of Mine who have transgressed against your own selves! Despair not of God’s mercy. Behold God forgives all sins, for verily He is much-forgiving, a dispenser of grace! Hence, turn toward your sustainer and surrender yourselves unto him before the suffering (of death and resurrection) comes upon you for then you will not be succoured.” God also says in IV: 18: “Repentance shall not be accepted from those who do evil deeds until their dying hour, and then say, “Behold, I now repent”. Nor from those who die as deniers of truth.” And there are several verses of this tenor. If God himself has asked man not to despair of His mercy and forgiveness, and if God himself has given man up till his dying moments the opportunity to repent, then is it given to any scholar to place a limit or time frame in a matter in which repentance is accepted? We have no option but to argue that even if we say the death sentence applies to leaving the faith, the convict is to be given a life-time to repent, and this is the view, as we have seen, of Sufyan al-Thawri, Ibrahim al-Nakha’ee, Shamsudden al-Sarakshi, Imam al-Baji and, by strong implication, Ahmad Ibn Taimiya. But then this brings us full circle to where we started. For it makes the ruling in the hadith, as understood by jurists, redundant, never to be applied. It leaves us with the only rational option of reading the text along with other related texts. We must conclude that the death sentence is not for “simple apostasy” (mujarrad al-ridda), but for apostasy accompanied by treason and sedition, or by the abuse and slander (sabb) of the Holy Prophet. I will now briefly address the other two issues. Inter-religious Marriage Marriage is a matter that every society views with seriousness because the family is the primary unit of all human society. When a couple marries, they create relations for other people. Their parents acquire children in law, their siblings get a brother or sister in law, and when they have children they are automatically brothers, grand children, cousins and nephews of other people. For this reason, every society has tended to protect its integrity by discouraging alliances that may undermine it. So we find that white people very often object to their son/daughter marrying a black person, and that people are concerned about the ethnicity or social class of the spouse chosen by their child. In some schools of Muslim law, for instance, members of a girl’s family may object to her union with a male member of an inferior class and they have the right to do so because by marrying him she is bringing them into a relationship with him and his family, as well as his children. The same principle applies with religious identity. I know many born-again Christians that would never marry a catholic based on religious considerations, and many priests would, on the basis of religious conviction, refuse to contract a marriage between a Christian and a non-Christian. Islamic law is clear that a non-Muslim male may not marry a Muslim female. As for a Muslim male marrying a non-Muslim female there are divergent opinions among jurists. The Sunni schools of Law, in general, hold that a Muslim male may marry a woman from among the “People of the Book” (Christians and Jews) based on a Qur’anic verse (V: 5) that makes lawful unto Muslims “chaste women from among the Believers and chaste women from among those to whom the Book is given.” The Shiite schools prohibit it based on another verse (LX: 10) that enjoins Muslims to “not hold on to (their) marital ties to women unbelievers” (wa la tumsiku bi ‘isamil kawafir). On this reading, Christian and Jews are unbelievers and thus forbidden in marriage, and this reading has been attributed to some of the companions, including ‘Ibn ‘Umar. The Sunnite schools consider this to apply to pagan women and polytheists, not the people of the Book. Proceeding on the assumption that the Sunnite position is the one followed by majority of Muslims, one can clearly see the logic of that position. In a patriarchal society, which Arab and Muslim society was and still is, the tendency is for children to follow the religion of the father. Especially in the early days of Islam, the permission to marry non-Muslim women, coupled with the permission to marry up to four wives and take in addition any number of concubines from among defeated people, combined to produce some of the most spectacular demographic transformations in history. In a world in which religions compete for follower-ship, and especially in the formative period of a new religious community seeking survival and then dominance, the law was a brilliant innovation. Although Islam had reached Europe within one century of the Prophet’s death, many Muslims are unaware that Islam remained a minority faith in all the lands it conquered for a very long time. The expansion and consolidation of Islam in the Arab east, for instance, took nine centuries from the migration of the Prophet to the fall of the Mamluks. The institution of marriage drove this process, first because children of mixed marriages were considered Muslim and second because polygyny allowed for a more rapid population growth among Muslims than adherents to other faiths. A detailed analysis of this process has been made by Youssef Courbage and Philippe Fargues in their book, Christians and Jews under Islam. To sum up, the prohibition of interreligious marriage is not unique to Islam. Indeed among Christians, inter-denominational marriage is often discouraged if not prohibited. Secondly, the law permitting Muslim men to marry Christian or Jewish women serves the purpose of increasing the rate of conversion to Islam and increasing the Muslim population. To quote Courbage and Fargues, (p. x) “marriage…(was)…the supreme powerful contract through which Islam made progress.” Clearly, therefore, the law is designed to protect the integrity of the faith of the community and also to provide an opportunity for rapid expansion and consolidation. History shows that it achieved this. In the scheme of geo-politics, the importance of populations cannot be underestimated and this remains true today. The Muslims of the world remain relevant precisely because one of five inhabitants of the globe is Muslim. Finally, the term “discrimination” hardly has relevance in this matter. Islam does not compel non-Muslim women to marry Muslim men, and does not demand that Christian women convert to Islam before they marry Muslim men. If anything it is unique in that it permits a Christian wife to a Muslim to maintain her faith and practice it. Even in the classical Islamic state, where Christians and Jews were protected citizens, marriage only took place through the mutual consent of spouses and their families. In summary, Muslim personal law on this matter is superior to other religious laws in its allowing the men to marry outside the faith without requiring prior conversion. It is also logical, within a rational scheme that views population as a political weapon for the security of the Ummah, and thus uses the institution of marriage as a major driver of population expansion programmes and policies. This is a valid strategy for a world religion seeking supremacy and dominance. Inheritance The first point that needs to be made on Islamic law of inheritance is that it is a comprehensive law that ensures that close family members, by blood as well as by marriage, are guaranteed a share of the inheritance of the deceased, no matter how small and no matter how large. The law also ranks relatives in order of proximity, such that those who are closest, (such as children, parents and spouses) will always have a share of the estate, and they can only be denied this share under specific circumstances defined by the Prophet (pbuh). These circumstances include, for instance, the injunction that a murderer cannot inherit the wealth of his victim. A second instance is the case in point, that where religion differs there will be no inheritance. On this second point, Islamic law is explicit that it works both ways. In other words that just like a Christian son cannot inherit the wealth of his Muslim father, the Muslim son cannot inherit the wealth of his Christian father, for example. It would seem that even Muslims could thus claim that the law discriminates against them because it does not permit them to inherit the wealth of their non-Muslim relations. More important, however, is the fact that inheritance is not the only avenue through which a child has access to his father’s wealth. A Muslim is free in his life-time to give his wealth to any one he so wishes, particularly the needy and blood relatives without regard to faith. When the Prophet first migrated to Madinah, and concerned about the meager resources of the community, he instructed his companions to give charity only to those who accepted Islam. This is reported in a number of traditions quoted by al-Tabari, al-Razi and Ibn Kathir. In correction of this instruction, God revealed the verse (II: 272): “ It is not for thee (O Prophet) to make people follow the right path, since it is God alone who guides whom He wills; And whatever good you may spend on others is for your own good provided you spend only out of a longing for God’s guidance. For whatever good you may spend will be repaid unto you in full and you will not be wronged.” According to several traditions reported by al-Nasa’ee, Abu Dawud and others, the Prophet then explicitly enjoined Muslims to give charity to all who needed it irrespective of faith. There is full agreement that this injunction is binding on all Muslims. In fact, Imam al-Tabari draws from this verse the conclusion that charity, or the threat to withhold it, must never become a means of attracting unbelievers to Islam, for faith, in order to be valid, must be based on conviction and free choice. So the first point is that the Muslim in his lifetime is free, and encouraged to, give any kind of material assistance to his non-Muslim relatives. If they are poor, they deserve this assistance on two counts: being needy and being relations. Secondly, a Muslim is free to make a bequest or Will (wasiyyah) and leave a portion of his wealth to any one who is not already entitled to a share of the estate. This is subject to a maximum of one-third of the value of the estate after accounting for debts. If it exceeds one-third, it may still be dispensed based on the consent of heirs in Malikite law. A detailed and most excellent discussion of wills and testaments in Malikite law is available in Imam Ibn Rushd’s al-Muqaddimat al-Mumahhidat. Importantly, this Wasiyyah takes precedence over the sharing of inheritance and is only preceded by settlement of claims of creditors see Qur’an IV: 11-12). In Muslim law, therefore, a Muslim father who wants his Christian child to have a share of his estate has the option of either giving that child anything he wants in his lifetime, or securing for that child a share of the estate not exceeding one-third through making a Will. If he has no other heirs, the dominant view in Maliki law is that the will can still not exceed one-third, although the Hanafites hold, and I agree with this, that he can make a will of the entire estate. This is because the limit of one-third was placed to protect the interest of the heirs and if there are none the limit becomes superfluous. If the Muslim chooses not to exercise these options, knowing fully that this child will not inherit him under law, the court has no option but to presume that he did not desire his child to inherit his property and wealth. It is therefore not a question of the law acting against the wish of the deceased but of the deceased himself indicating that he does not wish to give his wealth to his child. The problem has its roots in taking a partial view of the law, rather than viewing law as a totality. Conclusion I have tried in this paper to explain the position of Muslim law on certain controversial subjects and present my own understanding and perspective on the issues at stake. I have tried to show that in the matters of apostasy, inter-religious marriage and inheritance across religions there is no validity to the allegations of religious discrimination or intolerance in Muslim laws. In the process, my aim has been to draw the attention of Muslims and non-Muslims alike to the complexity of the subject, the multiplicity of interpretations, the wisdom of the law and my choice from the variety of views expressed by scholars. Very little of what is contained in here is original, except perhaps by accident. But I do hope that there is some originality in the manner in which various scattered arguments have been brought together in one piece, and in the manner of engagement with non-Muslim critics of Islam. A confident religion does not argue with emotions and violence. It presents its own defence, and proudly holds up its rulings and laws to the scrutiny of critics, challenging them to present anything in their own religions that is superior to it. If I have succeeded in doing this, the purpose here would have been well served. |