Assessing Apostasy, Blasphemy and Excommunication (takfir)

448 Pages·2017·3.02 MB·English

by  Masaki Nagata

Title: Assessing Apostasy, Blasphemy and
Excommunication (takfir) in Islam and Their
Modern Application by States and Non-State
Actors

A Thesis Submitted for the Degree of Doctor of
Philosophy by Masaki Nagata

Supervised by Dr. Mohamed Elewa Badar

Brunel Law School
Brunel University
June 2016
Abstract
In certain contemporary Muslim majority states apostasy and blasphemy are not
merely religious sins; they are acts which potentially have legal, or extra-legal,
consequences. Although apostasy has not been criminalised in many such states,
extrajudicial killings of apostates are carried out by some extremist groups and
individuals. Such groups always justify these murders of fellow Muslims and
non-Muslims on the grounds of apostasy and blasphemy. The concept and use of
takfir (excommunication) is also a serious issue in Muslim majority states. Groups
such as Daesh (also known as Islamic State of Iraq and Syria) rely on takfir to
attack fellow Muslims, despite there being no legal basis in Shari’a for the use of
takfir or for criminalising apostasy. Although the concept was developed by people,
not God, takfir are now being used to bypass rational human judgement. Their use
plays a major role in many of the religious issues confronting Muslim majority
states, such as the criminalisation of apostasy and blasphemy. This thesis analyses
the central issues of apostasy, blasphemy and takfir collectively, as their history and
their contemporary use and misuse by extremist groups are inextricably entwined.
The key finding is that the right to punish apostasy and blasphemy and to issue
declarations of excommunication (takfir), all originally reserved in Islam for God
only, have been appropriated by man. Through developments in the
understandings of these concepts, all three have come to be seen by some scholars
and ordinary believers as a ‘right of man’. This evolution in interpretation and in
application is inconsistent with Shari’a law.
Key Words
Islamic law; apostasy; blasphemy; takfir; extremist groups
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Background to the research
Contemporary Islam is confronted by a number of serious issues. Extremist
groups in many Muslim majority states, such as Daesh in Iraq and Syria, are all
too willing to label their opponents or rulers ‘unbelievers’ and order their fellow
Muslims to kill them in the name of God. Apostasy has effectively been
criminalised in some countries even though there may be no codified apostasy law
in those states. There are major conflicts around Shari’a law: some Muslims and
scholars believe in the supremacy of Shari’a over their countries’ constitutions,
while other scholars, mainly Western, believe that Shari’a does not recognise
religious freedom and that it is therefore inconsistent with modern conceptions of
human rights. This thesis has been written to confront and refute these inaccurate
claims and beliefs.

(Research questions)
The thesis addresses a number of key research questions. Firstly, it examines why
apostasy and blasphemy are considered to be offences punishable by death under
traditional Islamic law, and why some Muslim majority states and extremist
groups still consider apostasy to be a crime. Shari’a had always been interpreted
by scholars until Muslim states started to codify it in the 19th CE. This thesis
analyses how this codification of Shari’a has affected apostasy and blasphemy
cases in these countries. It considers the reasons for Shari’a being viewed as more
powerful than the constitution, and whether it is consistent with modern notions of
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religious freedom and international human rights. These issues coalesce in the
fundamental question of whether Islam allows true religious freedom.

(Research Methodology)
The methodology employed in this thesis is to explore the changing meaning of
apostasy and blasphemy throughout Islamic history and to compare the treatment
of these acts during the Prophet’s era with the approaches taken in the mediaeval
and contemporary eras, all with reference to Shari’a and international human
rights. This thesis also analyses how the codification and usage of Shari’a has
affected apostasy cases in various Muslim majority states. It examines the
background to the reservations made by some such states to certain human rights
treaties, and discusses the key problems facing international human rights today.
As such treaties and concepts are based largely on such western ideas as natural
rights law theory, which is the basis for international human rights law, the thesis
explores these concepts too, with particular reference to freedom of religion and
expression. The thesis compares international human rights instruments
(especially those provisions relevant to freedom of religion and expression) and
Shari’a, with reference to the Qur’an and Sunna. Finally, the link between
apostasy and blasphemy and the evolution of takfir is explored in order to show
how these two religious sins came to be seen as crimes. Although apostasy and
blasphemy have been much researched the notion of takfir (excommunication),
which is a key trigger for intra-religious conflict in Islam, has received much less
attention. One of the aims of this thesis is to address the particular lack of research
in this area.
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(Argument)
The codification of Shari’a has had a great effect on the issues of apostasy and
blasphemy in modern times. Although certain states do not have apostasy law as
such, they can refer to Shari’a law if it has been codified. This touches on another
issue, that regarding the distinction between divine and man-made laws. Some
Muslim majority states consider international human rights to be inferior to
Shari’a, as they see the former as man-made and the latter as divine.
The central argument made in the thesis is that the types of interpretations made
by extremist groups and some scholars, such as that true Muslims must kill
unbelievers because Shari’a does not recognise religious freedom, are inaccurate
and even deliberate misinterpretations. The thesis shows, via careful readings of
the Qur’an and the Sunna, that Islam does recognise religious freedom and that
there is no evidence that religious sins (apostasy and blasphemy) is to be treated
as a crime in this world. The issues of apostasy and blasphemy are examined by
comparing the Prophet’s approach to these acts with mediaeval and modern
approaches. The thesis shows how their treatment has changed throughout Islamic
history by analysing mediaeval Islamic texts and the evolution of the notion of
takfir. Neither the Qur’an nor the Sunna consider religious sins such as apostasy
and blasphemy to be crimes, but the evolution of the concept of takfir after the
Prophet’s time meant that any religious sin or even believing in or developing any
new tradition or interpretation came to be considered to be possible evidence of
apostasy. However, close reading of the Qur’an and Sunna shows that religious
sinners are not (or should not be) considered apostate and that repentance for such
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acts is recognised by Islam until death, when God will make his judgement. In a
positive development some Muslim majority states, such as Tunisia, have started
to prohibit takfir.

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Acknowledgement
With thanks to my supervisor, Dr. Mohamed Elewa Badar, for his incredible
support, stimulating debate and inspiring research.

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Table of Contents
Abstract
Acknowledgment
Introduction
Chapter 1 Apostasy and blasphemy in Islam
Introduction
1.1 Apostasy
1.1.1 Definition of apostasy
1.1.2 Punishment for apostasy
1.1.3 Is apostasy a hadd offence?
1.2 Shari’a
1.2.1 Is the Qur’an a penal code?
1.2.1 Sources of Islamic law / sources of Shari’a
1.3 Do the hadith support apostasy law?
1.4 Blasphemy
1.4.1 Definition of blasphemy
1.4.2 Punishment for blasphemy
1.4.3 Blasphemy in the Qur’an
1.4.4 Blasphemy in Sunna
1.5 The Prophet’s pardoning of individual blasphemers
1.6 Development of apostasy and blasphemy law
Conclusion

Chapter 2 State-sponsored apostasy and blasphemy in Muslim
majority states
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Introduction
2.1 Codification of Shari’a and the notion of an ‘Islamic State’
2.2 Position of Shari’a, apostasy and blasphemy in Muslim
majority states
2.2.1 Afghanistan
2.2.2 Malaysia
2.2.3 Iran
2.2.4 Pakistan
2.2.5 Egypt
2.2.6 Saudi Arabia
2.2.7 Turkey
Conclusion
Chapter 3 Human rights obligations of Muslim majority states
Introduction
3.1 Position of apostasy and blasphemy in international human
rights instruments
3.1.2 Origins of Western religious liberty
3.1.3 UDHR, ICCPR, the 1981 Declaration
3.1.4 Blasphemy
3.1.5 Restrictions on expression
3.2 Religious freedom and freedom of expressions cases
3.3 Human rights obligations
3.3.1 Status of the Universal Declaration of Human Rights
(UDHR)
3.3.2 Status of the ICCPR
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3.3.3. Relative human rights approaches and the lack of
applicability of the universal approach
3.4 State practices of Muslim majority states
3.4.1 Reservations against treaties
3.4.2 Defamation resolutions: a Muslim approach to religious
defamation
Conclusion

Chapter 4 Islamic approaches to human rights
Introduction
4.1 Islamic human rights instruments
4.2 Islamic approach to human rights
4.2.1 Sovereignty
4.2.2 Freedom and equality in Islam
4.2.3 Religious liberty
4.2.4 Nonadversarial relationship
4.2.5 The divine approach to human rights
Conclusion
Chapter 5 Takfir and non-state actors
Introduction
5.1 Practice of takfir by state and non-state actors
5.2 The origin and evolution of takfir
5.2.1 The Khawarij
5.2.2 Ibn Taymiyya
5.2.3 Muhammad Ibn ‘Abd al-Wahhab
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