Writing in US News, Jay Tolson is correct that the apostasy case in Afghanistan should have been allowed to come to a head, in order to clarify Afghanistan’s stance on Sharia once and for all. But in fact it is already abundantly clear that the new Afghanistan is as much of a Sharia state as the old one; Tolson doesn’t seem to have grasped the significance of the fact that the Afghan Constitution says it “respects” the Universal Declaration of Human Rights, but nowhere says that no law can be made in contradiction to the Declaration — while it does stipulate that no law can be passed that contradicts Islamic Sharia.
Still, he is certainly correct that “puritanical jurists within almost every major Islamic legal tradition have at some point argued that” punitive passages of the Qur’an and Hadith “supersede (or ‘abrogate’) the calls for tolerance.” And he is right to note, contrary to the claims of Islamic apologists such as Stephen Schwartz, that the problem within Islam does not lie solely with the Wahhabis. And he is certainly correct that there needs to be a frank and open discussion about Sharia throughout the Islamic world.
But Tolson is misled somewhat by his reliance on the smoke-and-mirrors analysis of Khaled Abou El Fadl. It is true that during and after the colonial period there came “scores of reformers from within the Muslim world””some progressive, some reactionary but all trying to make Islam applicable to modern society and governance.” However, they weren’t always “suppressed or harassed” only by “secular nationalist leaders.” Some of the progressives among those reformers, such as Mahmoud Muhammad Taha in Sudan, were executed for heresy, and their followers made to recant. Tolson speaks about “deeper, richer Islamic legal understanding, one that views sharia, the path of God, as something that mere humans can only approximate in their efforts to apply the few fundamental precepts of the faith to the laws of this world,” and certainly there are Islamic thinkers who posit such things. But where is there now or has there ever been an Islamic state that set aside the death penalty for apostasy on Islamic grounds, say, on the basis of Qur’an 2:256 or some other Islamic justification, rather than as a consequence of pressure from non-Muslim sources, whether those pressures came from Western non-Muslim powers or from thinkers influenced by Western secularism within the Muslim countries themselves?
This is a crucial question, for it helps clarify whether or not the Muslim reformers can realistically prevail upon the umma at large to set aside the death penalty for apostasy while maintaining an Islamic framework for society. It will help us assess whether or not they really are likely to succeed within the Islamic community today. I do not know of such an instance; if you do, please email me at email@example.com.
Most immediately, the Rahman case would have brought to a head questions about the compatibility of Islamic law, or sharia, with the more universal principles of human rights (namely religious tolerance), both of which the Afghanistan Constitution claims to respect. Dismissing the case on technical grounds means Kabul has only put off its rendezvous with an inevitable constitutional dilemma. (Think, by analogy, of the U.S. Supreme Court sidestepping something so fundamental to the nation’s constitutional arrangements as Marbury v. Madison.
At the same time, the dismissal robs the larger Muslim world of a golden opportunity for religious moderates to challenge an Islam-wide crisis of authority that allows extreme, literalist interpretations of Islamic law to go unchallenged. That is no small matter. Embraced not only by Wahhabi puritans and militant Islamist groups like the Muslim Brotherhood, those extremist interpretations also influence the law of the land in many predominantly Muslim nations. Although only a few states””Sudan, Saudi Arabia, Iran, and, possibly, Afghanistan””endorse capital punishment for apostasy, many other Muslim nations, including Jordan and Egypt, have subjected apostates to lesser punishments that include imprisonment and exile, according to Georgetown University historian Yvonne Haddad. Even Muslim nations that officially embrace religious tolerance, like Pakistan, often turn a blind eye to widespread and unofficial persecution of apostates., a crude village justice carried out by supporters of a narrow construction of sharia
Within Muslim intellectual circles, there is considerable disagreement over whether the brunt of the Islamic legal tradition stands behind religious tolerance or for punishment for apostasy. On one hand, many argue, Koranic passages supporting tolerance outnumber those inveighing against apostasy. And even the latter (in addition to sayings called hadith attributed to the Prophet and his earliest followers) are associated with the martial phase of the Prophet’s career and are often understood as applying to acts of treason rather than to abandonment of the faith. Nevertheless, precisely because many of the punitive Koranic passages and hadith come later, puritanical jurists within almost every major Islamic legal tradition have at some point argued that they supersede (or “abrogate”) the calls for tolerance. As UCLA legal scholar Khaled Abou El Fadl points out in his book The Great Theft: Wrestling Islam From the Extremists, “puritans habitually declare any part of the Qur’an that is inconsistent with their worldview to have been abrogated.”
The urgent question is why the puritanical interpretation of sharia, which sees the holy law as a set of literal prescriptions taken selectively from the various sources, has come to prevail in recent decades. Much less is heard about a deeper, richer Islamic legal understanding, one that views sharia, the path of God, as something that mere humans can only approximate in their efforts to apply the few fundamental precepts of the faith to the laws of this world. The latter understanding accepts the fallibility of human interpretations and embraces the rich and varied Islamic juridical traditions. The former rejects most of those traditions, apart from the views of a few strict puritannical jurists.
The flattening and narrowing of Islamic law in the modern period, Abou El Fadl and others say, date from the colonial period, when the learned scholars (the ulema) began to see the authority of their judgments and teachings diminish. Then came scores of reformers from within the Muslim world””some progressive, some reactionary but all trying to make Islam applicable to modern society and governance. Often suppressed or harassed by secular nationalist leaders, Islamist reformers were driven underground or into exile. But some of the most reactionary Islamists also began to receive support from the wealthiest Islamic establishment in the world: the Wahhabis of Saudi Arabia. The sad irony of this outcome is that the most rigid views of Islamic law, views often rooted in tribal customs and practice, have come to dominate what began as a broad attempt to reform and modernize Islam.
Since September 11, the West and many moderate Muslims have been waiting for a forceful corrective to the Wahhabi-sponsored puritanical interpretations of the Muslim creed. And, to be sure, in the wake of the short-lived Rahman case, a few Muslim organizations and activists have registered their abhorrence of the apostasy charge. Yet few, if any, have clearly called for a long-overdue discussion of the meaning of sharia within the Islamic world. In Abou El Fadl’s view, that discussion should have come even earlier, when the Afghanistan Constitution was being put together. But in their haste and sometimes their arrogance, Abou El Fadl says, western advisers feared “opening up the Pandora’s box of Islamic arguments.” More’s the pity, he adds, “because what was needed in the writing of the constitution was a fuller discussion of what sharia means, not just paying lip service to Islam. All that was done was to postpone the issues.”