1 The Case of Apostacy

The effects of operating within the boundaries of Usuli legal epistemology and thereby giving preference to a literalistic approach are clearly noticeable in the juristic deductions (fiqh) of notable Shi'ite jurists.

1 It is important to clarify that as indicated in chapter 1, Shi'ite orthodoxy rules that there is a Sharia percepts for every human action. Accordingly, it maintains that when real knowledge of Sharia precepts, as they are in the Mind of God (or hukm al-waqi^e), cannot be deduced from authoritative forms of evidence (or scripture), then a jurist must take recourse to proce­dural principles (usul al-'amal⅛5'a) of precaution, exemption, continuity, or choice to deduce apparent knowledge of Sharia precepts (hukm al-zahirt). This method guards a jurist with immunity from being held accountable in the hereafter, even if the indication of an apparent Sharia precept is contrary to the real Sharia precept that is in the Mind of God. of apostasy is prohibited (.haram).2 It explains that apostasy occurs when a person either outright denies the fundamental theological articles of Islam (darurlyyatal-dιn) or opts to join another faith whose essential articles contra­vene those of Islam. It clarifies that orthodox Shi'ite jurists make a distinction between two types of apostates; an apostate that is born into the religion of Islam (murtadd al-fitrl), and an apostate who previously converted to Islam from another religion (murtadd al-mllll).

The abovementioned understanding of worldly punishments associated with apostasy are normally presented as archetypal instances of how the orthodox interpretation of Sharia opposes modernity and its values of auton­omy and freedom. In their process of ljtlhad, orthodox jurists deduce these precepts by primarily referring to the Quran, which contains verses such as “and whoever denies their faith - then his work has become worthless, and he, in the hereafter, will be among the losers."4 Or, “Indeed, those who have believed then disbelieved, then believed, then disbelieved, and then increase in the disbelief - never will Allah forgive them, nor will He guide them to a way."5 Or “And whoever of you reverts from his religion and dies while he is a disbeliever - for those, their deeds have become worthless in this world and the Hereafter, and those are the companions of the fire, they will abide therein eternally."® Orthodox jurists analyse that the apparent (zahlr) meaning of these verses conveys that God despises anyone who chooses to turn away from

2 Mu'assasat Daira Maarif al-Fiqh al-IslamI. MawsWat al-fiqh al-Islaml tlbqa ll-madhhab ahl al-bayt, 20 vols. (Qum: Mu'assasat Da'ira Ma'arif al-Fiqh al-Islaml, 2002), 8:354.

3 For a complete discussion on apostasy and Sharia precepts related to it see ibid., 354-457; it is important to note that these precepts can also be found in the juristic deductions of the highly prominent Grand Ayatollah SIstanI, see 'All Husayn al-SIstanI, Mlnhaj al-Sallhln, 3:323-4.

4 Quran 5:5.

5 Quran 4:137.

6 Quran 2:217.

being a Muslim (or a believer) towards being a disbeliever. They admit that although these verses indicate that such people are met with punishment in the hereafter, they do not relay any worldly punishments.

Worldly punishments associated with apostasy are deduced from isolated reports that convey the sunna (tradition) of the Prophet and Shi'ite Imams. Within the Usulr framework, because the Prophet and Shi'ite Imams are accepted as infallible individuals, one key function of their sunna is that it can legislate (tashrl^c) Sharia precepts that have not been legislated in the Quran. Orthodox jurists refer to several isolated reports that indicate the different Sharia punishments an individual is charged with for committing apostasy. For instance, in Mawsu^cat al-fiqh the following reports are found: Prophet Muhammad said, “kill anyone who changes their religion,"? and the fifth Shi'ite Imam, Muhammad al-Baqir (d. 732) said, “after accepting Islam, whoever wishes to turn away from Islam and disbelieve in what has been revealed to Prophet Muhammad, then there is no repentance for him, instead it is neces­sary that he is killed."8 With the aid of these and other such isolated reports, orthodox jurists deduce different categories of apostates (i.e., murtadd al-fitrl and murtadd al-milll, as well as male and female) and the different types of worldly Sharia punishments they are charged with.9

Orthodox jurists deduce specificities of worldly Sharia punishments associ­ated with apostasy from isolated reports despite acknowledging that they can possibly be erroneous or fabricated. As explained in chapter 4, they justify and defend their utility by upholding that the authoritativeness of isolated reports is substantiated by God's sanction.

Contrastingly, Shi'ite Muslim reformists, in their endeavour to bridge the gulf between Sharia and modernity, directly and indirectly contend against the literalistic approach favoured by orthodox jurists concerning apostasy

7 See Daira Maarif, Mawsrtatal-fiqh, 8:354.

8 Ibid.

9 It is important to note that, apart from the death penalty, similar isolated reports also indi­cate on other implicatory or circumstantial Sharia precepts (hukm al-wartτ) that are only brought into existence after a person commits the act of apostasy. These reports have impli­cations on an apostate's matrimonial status, their right of inheritance, their ritual purity etc. For juristic deductions based on these reports see ibid., 385-394.

(and other such Sharia precepts). For instance, Mohsen Kadivar, a seminar­ian graduate, and a student of renowned Ayatollah Hussein Ali Montazeri ^d.2009١),١0 in MajazatmurtadwcicdiTdhhah OndemnsKhrumaynSsstu-- dent Ayatollah Fazel Lankarni (d. 2007) for issuing an edict (fatwa) declaring an individual named Rafiq Taqi an apostate for writing an article in which he was critical of Islam and Prophet Muhammad.“ Coming from a seminarian background, Kadivar attempts to respond to Lankarani by pointing out that the four-fold categorisation of the commonly accepted evidence (including the Quran, sunna, consensus, and reason) does not prescribe the death pen­alty for apostasy.i2 Saying this, he accepts that there are certain isolated reports that do indicate the death penalty for apostasy.

The situational context of apostasy found in the traditions or juridical works is wider in scope than just changing religion or exiting from Islam, because it was closely linked with joining hands with the opponents of Islam (i.e., the polytheists and unbelievers). The “apostates” of that period, in addition to exiting from Islam, engaged in a propaganda campaign against Islam and united with the enemy's army. This constituted a form of political, cultural, and military war against the Muslims. However, the present-day usage of “apostate” is restricted to exiting from the religion of Islam without taking into account any other conditions and motives. In other words, the subject of “apostasy” is associated with religious and cultural freedom by contemporary people, whereas the same term in the

10 It is important to note that Montazeri was a cleric that was tipped to become the succes­sor of KhumaynI as the Supreme Leader of Iran but was later denied of this position due to his dissent with some of KhumaynI's policies. See Siavoshi, Montazeri, 139.

11 Kadivar notes that the edict issued by Lankarani eventually led to Taqi's execution in 2011. He states that the execution was applauded by Lanakari's son, who expressedjoy that his father's edict was carried out. Kadivar states that apart from this case, there are sev­eral others where orthodox jurists have issued edicts of apostasy against writers, political activities, artists etc., who have either spoken out against their authority or their under­standing and interpretation of religion (or Sharia). See Kadivar, “Apostasy, Blasphemy & Religious Freedom in Islam”.

12 It is important to note that in addition to pointing out that there is no proof for the death penalty within the four-fold categorisation of evidence, Kadivar also demonstrates the juristic deductions of his teacher Ayatollah Montazeri.

religious judgments of Islam is linked to political crimes that are akin to a belligerent (muharib). Undoubtedly, these two are different and distinct from each other.13

In this passage, Kadivar demonstrates that Sharia originally only prescribed the death penalty for apostasy because it was akin to treason.” He adopts a her­meneutical approach that proposes that in the present-day context, isolated reports associated with apostasy (or at least those concerning the death pen­alty) should only be interpreted through the lens of the situational context in which they were revealed. He believes that they cannot be read in their appar­ent meaning (or the hermeneutical approach preferred by orthodox jurists), as the notion of apostasy has changed over time and is no longer linked with treason.

A similar contextual approach towards Sharia is favoured by Abdolkarim Soroush, an intellectual theologian who, due to his criticisms of the Iranian clerical regime, has been in exile for nearly two decades. Although Soroush does not directly deal with the issue of apostasy, his theory on ‘contraction and expansion of Sharia' (or 'Qabz va bast-t ti^,urlk-t sharl^cat^,) is applied to the case of apostasy in a recently published article by Ali Akbai Akbar demonstrates that the correct application of Soroush's theory renders the death penalty for apostasy null and void in the present-day context and allows for religious free­dom. He explains that central to Soroush's theory is the distinction between religion (dln) and understanding of religion (ma'rt∕at-t dlnl). The former is divine, sacred, and unchanging, whilst the latter is a product of human under­standing and hence it constantly changes and is always open to questioning and criticism. In this sense, our (or the human) understanding and interpreta­tion of religious scripture is always fallible and reflective of our personal pre­suppositions. As we evolve, so too does our understanding and interpretation. As such, for Soroush, religious knowledge, like any other branch of knowledge, always has the potential to adapt to different contexts.]® Considering this, Akbar opines that, in line with Soroush's theory:

13 Ibtd,.

14 The relationship between apostasy and treason is also found in other works, for instance see Jordan, “The Dark Ages of Islam”; Shah, “Freedom of Religion: Koranic and Human RightePerspechves''', Rahman, Pu-ItshwiCTItofApostasy tnlsta m,10⅛.

15 Akbar, “The Classical Islamic Laws of Apostasy in the Present Context”, 666-71.

16 For a dedicated study of Soroush's theory of ‘contraction and expansion of Sharia' in English, See Fletcher, “The Methodology of Abdolkarim Soroush: A Preliminary Study”; also see Akbar, “Abdolkarim Soroush”.

The notion of killing an apostate must be explored within its proper con­text in the early days of Islam, and should not be de-contextualized, being viewed as a precept that could be applied at all times and in all places. This argument has been made in two steps. First, the facts that the Quran does not prescribe any earthly punishment for apostasy and that the apostates are only destined for the Fire in the afterlife from the Quranic perspective, show that there is nothing sacred about the medieval Islamic laws on apostasy. This provides a strong basis for rethinking the classical laws of apostasy developed by Muslim jurists, since we should make a distinction between the Quran and any human understanding of it (as Abdolkarim Soroush's theory of expansion and contraction of religious knowledge argues). In the second step, the paper focused on the histori­cal context, in which the Prophet ordered prosecution of the apostates, in order to examine whether the same rules can be implemented in the present context. The paper has argued that during Muhammad's lifetime, the act of apostasy was often linked to an act of political betrayal of the Muslim community, treason, sedition and joining forces to the enemy, and it is not surprising that such matters were sensitive for the Prophet. In addition, such decisions were made centuries before the development of modern notions of religious pluralism and human rights. Since today's context is different from the Prophet's historical context and by its exten­sion from the medieval world, neither the Prophet's decisions nor the classical Islamic laws on apostasy are applicable in the present world, which is to say that modern Islamic discourse should move in the direc­tion of abolition of all earthly punishment, be it death penalty or impris­onment, for apostasy. ]7

Giving preference to a contextualised reading and interpretation of scripture is also advocated by Arif Abdul Hussain, who is a progressive theologian and the founder of a Shi'ite seminary in Birmingham, UK. Although Hussain does not directly write on apostasy, his discourse in God Centricity compellingly promotes that religious scripture must be hermeneutically interpreted in a manner that ensures that context-appropriate Sharia precepts are generated.]« Through observing the general ontological nature of the world, Hussain upholds that existence, or human beings, are in a constant state of evolutionary flux.

17 Akbar, “The Classical Islamic Laws of Apostasy in the Present Context,” 670-1.

18 See Hussain, Islam and God-Centricity; Hussain, “The Conflict between the Actual and Apparent Regulations”.

They are always growing towards an upwards trajectory that enables them to actualise their human potential. This existential phenomenon, which he terms ‘the existential property of growth,' allows human beings to liberate themselves from physical, mental, and spiritual shackles, enabling them to positively (or at times, even negatively) arrive at profound levels of self-realisation. Hussain's ontology inevitably leads him to accept an epistemology in which he main­tains that there is 'no-finality' in knowing and understanding existence. He explains that as human beings experience and learn new realities, their com­prehension of objective reality (Waqi^c) evolves. As such, their comprehension is always dependent on the context in which they exist. Therefore, as human beings evolve in their relative contexts, their knowledge and appreciation of Sharia also evolves.

In line with Hussain's ontology and epistemology, he proposes a herme­neutical method of interpretation that distinguishes between essence and form of scripture. He explains that the essence of scripture conveys the sacred and fundamental values that assist the evolution and liberation of mankind. The efficacy of the essence is not limited to the original context of revelation, but rather it is universally applicable across different contexts. On the other hand, the form of a text conveys contextual values that assist the evolution and liberation of individuals who specifically existed during the era of revela­tion. The efficacy of the form is limited to the context of revelation and can only transcend beyond it in cases when another context shares similarities with the original context. Hussain admits that during the era of revelation, it was not possible to make a distinction between essence and form of scrip­ture, as there existed full synchronicity between the values carried by them. However, in the present-day context, the distinction between essence and form is incredibly pertinent due to advances made in technology, research, and general socio-political life. The change in context implies that some values carried within the apparent form of scripture are no longer in keeping with its essence. Considering this, Hussain suggests that, rather than deducing Sharia precepts by being overly reliant on the apparent form (or the apparent mean­ing) of scripture, it is more appropriate that present-day jurists exert effort in deducing fundamental values found in the essence of scripture and apply them to solve challenges of modernity. He clarifies that the key step involved in deciphering the essence (or the fundamental values) of scripture is that a jurist must attain a thorough understanding of the context in which scrip­ture was originally revealed. Although Hussain does not directly deal with the issue of apostasy, it can be said that according to his hermeneutical method, isolated reports that prescribe the death penalty for apostasy must be read in the context in which they were revealed. It can be surmised that he would assert that the Prophet and Shi'ite Imams only prescribed the death penalty for apostasy because, during their period, apostasy was linked with treason and the death penalty was the most appropriate form of punishment that ensured the protection of Muslims. However, since apostasy is no longer linked with treason and Muslims no longer require protection from apostates, the death penalty cannot be deemed an appropriate or effective form of punishment. Indeed, if the present-day context changes back, whereby the act of apostasy once again becomes linked with treason, then only at that point might Hussain conclude that is it possible to reinstate the death penalty for apostasy.

Nevertheless, the case of apostasy exemplifies the different approaches taken by Shi'ite scholars who work within and outside the bounds of ortho­dox legal theory (orthodox legal epistemology). For those working within, their primary concern is to be protected from accountability and thus they effec­tively take a literalistic approach to Sharia even in important matters of life and death. Meanwhile, for those working outside, their primary concern is to narrow the gulf between traditional Sharia and challenges of modernity, and thus they display no issues in deducing Sharia knowledge from wider forms of evidence and dynamic hermeneutical approaches, wherein instead of rely­ing on interpreting scripture in its apparent meaning, they give preference to interpreting it contextually.

At this juncture, it is important to clarify that present-day orthodox jurists are aware that their preferred literalistic approach towards Sharia knowledge leads to outcomes that can sometimes be perceived as non-egalitarian by some of their devout followers (particularly those who reside in the West and are familiar with western standards of modernity and ethics). Haider Ala Hamoudi interestingly explains that, to avoid offending their followers, orthodox jurists practise what he terms ‘strategic juristic omission.' He states that, instead of refuting their own - or their predecessors' - inept Sharia deductions, ortho­dox jurists simply avoid mentioning them in newer editions of their published works. On this, Hamoudi elaborates that:

The matter seems to work well enough, in that it enables the jurists to avoid answering uncomfortable questions or advancing positions on fiqh that come near to contradicting ethical precepts and political commit­ments that they are simultaneously propounding. However, it comes at some cost. Specifically, strategic juristic omission only works for as long as rules are unapplied. Thus it is, in a sense, an admission of failure in the fiqh. Moreover, it prevents the sensible re-evaluation of juristic rules in a manner that might render them more palatable in the modern era. This is dangerous, particularly in our times, when extremists seem all too willing to hijack Islam through the tendentious use of older texts.

Examples of strategic juristic omission abound. For example, traditio­nally, Shi'i jurists describe marriage as being of three types - permanent marriage, temporary marriage, and the right of masters to the sexual enjoyment of their female slaves. Grand Ayatollah Ali al-Sistani (b. 1930), however, describes two types of marriage, permanent and temporary. He thus does not lay out the rules respecting sex and female slaves, nor does he even explain why he has omitted them. Other examples exist as well - it is rare to find a contemporary jurist suggesting that it is recommended for a husband to imprison the wife in the home so that she only leaves when necessary, another traditional rule recounted as recently as the middle of the twentieth century by the late Muhsin alHkim (d. 1970). A final, notable example concerns female genital mutilation (fgm ). Where earlier Shi'i texts clearly describe FGM as recommended at the age of six­teen, reference to the practice is so reduced in al-K'i's (d. 1992) account that a lay reader would know little more than that “curtailing" female slaves is recommended, and al-Sistani omits mention of the matter alto­gether. Again, in each case, whether it is women leaving the home or the practice of FGM, the ethical precepts that contemporary jurists expound seem in tension with, if not directly contradictory to, deeply established rules of the fiqh., thereby causing them to rely on omission to manage the gap.19

By practising strategicjuristic omission, prominent orthodox jurists implic­itly express a degree of embarrassment at some of their historical deductions. However, instead of dealing with them, or rejecting their applicability in the modern-day context, they simply hide their existence. This shows that they are mindful that their preferred literalistic approach at times restricts them in providing adequate responses to the challenges of modernity. However, they are theoretically bound by a legal epistemology that does not allow them to venture into a wider range of evidence or alternative (or contextual) herme­neutical approaches whose applicability enables them to display the extent of dynamism that is displayed by Muslim reformists. As emphasised, although they are aware that their preferred literalistic approach may not always lead them to Sharia knowledge that corresponds to the Mind of God, they maintain

19 Hamoudi, “Strategic Juristic Omission and Non-Muslim Blood Price", 129-31. that it, unlike reformist approaches, is substantiated within legal theory and its juristic utility in the process of ijtihad is sanctioned by God. Therefore, abiding by it protects a jurist from accountability in the hereafter.

Nonetheless, for a significant cohort of Shi'ite Muslims, and probably most of the world, orthodox jurists represent the most authentic and authoritative voice of Shi'ism. Their respect within, and influence over, the Shi'ite commu­nity potentially puts them in a position where they can provide acceptable solutions to challenges that are posed by modernity to Muslims worldwide. An interesting question that arises is whether there is space to revise orthodox Usulr legal epistemology, or more specifically, the fundamental epistemologi­cal underpinnings of legal theory, so that it can provide a framework which allows jurists to utilise more dynamic approaches in exploring the Mind of God and deducing Sharia knowledge. As an insider, in the remainder of this chapter I examine the key epistemological assumption upon which modern orthodox Usulr epistemology hinges, and explore the impact reinventing it would have on the future of ijtihad and Shi'ite authority structures.

2