Printer Friendly

The problem of non-Muslims who insult the prophet Muhammad.

Both laypeople and Middle East specialists interviewed by the news media have generally identified iconoclasm as the relevant Islamic taboo that was contravened in the Jyllands-Posten cartoon controversy and subsequent ones such as Charlie Hebdo. (1) Yet Islamists routinely identified the irreverent or mocking treatment of the Prophet Muhammad, and not the visual representation of him, as the crime that had been committed.

The lion's share of scholarly--and non-scholarly--attention given to the act of insulting the Prophet has centered on al-Sarim al-maslul 'ala shatim al-rasul, a treatise by the thirteenth-century Hanbali jurist Ibn Taymiyya. (2) In this work, in which Ibn Taymiyya maintained that one who insulted Muhammad, Muslim or non-Muslim, had committed a capital hadd crime and could not avoid the death penalty through repentance or conversion, (3) short shrift is given to precedents that do not accord with his strict interpretation of the law. What follows is a tentative history of the law against insulting the Prophet in Islam, with particular focus on the differences between Shafi'is in eleventh-century Baghdad and Khurasan on this issue and on the case of non-Muslims who insult Muhammad.

I

The ostensibly late emergence of the law against insulting the Prophet (sabb or shatm al-rasul) poses a number of problems. No scriptural evidence justifies its addition to the list of Quranic or hadd crimes. The only verse in the Quran that adjures against sabb (insults) instructs Muslims not to insult the infidels' gods "lest they, in retaliation, insult God in their ignorance" (6:108), and no variants of the word shatm appear. While some early hadiths call for the execution of those who insult the Prophet, (4) others provide means to lighten the sentence, ordinarily repentance for a Muslim or conversion to Islam for a non-Muslim.

Once fiqh works are taken into account the picture becomes more complicated. Yohanan Friedmann has demonstrated that on the crucial issue of whether or not the Muslim insulter of the Prophet may repent of his crime, support may be found in each of the four Sunni madhahib for either repentance or the impossibility of repentance. (5) As for non-Muslims, the opinions are equally varied. Abu Hanifa is said to have held that non-Muslims who insult the Prophet "are not to be killed, because their [overall] unbelief is worse {la yuqtalu ya'ni lladhi hum calayhi min al-shirki aciamu)." (6) He is also said to have held that non-Muslim insults to the Prophet do not violate the Pact with the Islamic state. (7) Other Hanafi jurists concur--for example, al-Tahawi (d. 933), who specified that the non-Muslim who does this "is given a discretionary punishment but is not killed ('uzira wa-lam yuqtaly); (8) and al-Quduri (d. 1037), al-Marghinani (d. 1197), and Ibn al-Humam (d. 1457), who argued that the act did not break the Pact and they did not specify a particular punishment for it. (9) A harsher interpretation gained traction, however--in Badr al-Din al-'Ayni's (d. 1451) commentary on the Hidaya of al-Marghinani, he notes that al-Atrazi (d. 1357) ruled that a non-Muslim insulter of the Prophet be killed (10)--and this would become the norm among Hanafis in the Ottoman period. Within the generally uncompromising Hanbali school, at least one qadi supported the idea that it made sense for non-Muslims to be able to say things about the Prophet that Muslims would find offensive. (11)

In short, the law against insulting the Prophet, by Muslims and non-Muslims alike, supports multiple contradictory interpretations. Given the complex picture posed by the broader context of intrascholastic and interscholastic disagreement and chronological change, the temptation by scholars of Islam to characterize a specific reading of the law as normative plagues some studies. For example, Lutz Wiederhold's statement that "there is no essential ikhtilaf [disagreement] among the schools of law on the issue of sabb" (12) is correct in a very general way, but overlooks such important issues as whether or not one can repent of it, which differs within each school. Debate also surrounds the question of the relative continuity of the law with early Islamic norms or their novelty. Carl Ernst describes the elaboration of the law against insulting the Prophet as "building upon the descriptions of and pronouncements on blasphemy found in the Qur'an and the example (sunnah) of the Prophet." (13) If one accepts that the death sentence can be lifted through repentance or conversion--positions that could be claimed to be rooted in early Islam--this statement becomes meaningless, however.

This difficulty in isolating a normative law against insulting the Prophet bedevils arguments by contemporary Muslim writers as well. The modernist Muslim writer Muhammad Kamali, for instance, argues that the normative position in Sunni Islam is for sabb to be a subcategory of apostasy from Islam (ridda), (14) yet he acknowledges that insulting the Prophet by a non-Muslim cannot logically fall under the category of ridda.

Islamist writers have fewer concerns; for them, the most severe iterations of the law against insulting the Prophet are normative. At the outbreak of the Danish cartoon controversy a Saudi website reprinted a fatwa by chief mufti 'Abd al-'Aziz Bin Baz (d. 1999) in which he had pronounced a death sentence upon a cartoonist who had drawn a cartoon for an Egyptian newspaper that made humorous reference to the Prophet's large number of wives. Citing the twelfth-century Maliki Qadi 'Iyad's al-Shifa' bi-ta'rif huquq al-mustafa and Ibn Taymiyya's al-Sarim al-maslul, Bin Baz concluded that the cartoonist "is an unbelieving heretic whose blood and wealth may be taken legally." (15)

Whatever the relationship between early Islamic sources and the elaboration of the law, we are left with the difficulty of explaining a problem identified by Wiederhold, namely, the "comparatively late date" in which insulting the Prophet was incorporated into the legal manuals. (16) He finds the first awareness of sabb as an offense in the work of the late ninth-, early tenth-century Shaf'i Ibn Mundhir (d. 930). (17) According to Janina Safran, the provocations of Spanish Christians who sought martyrdom by loudly insulting the Prophet in the presence of witnesses "must have stimulated the elaboration of the problem in the Malik! tradition of Islamic law." (18) Following her line of reasoning, it was no accident that the doctrine first reached its mature exposition in the Maliki school; the above-mentioned handbook by Qadi 'Iyad, al-Shifa' is ordinarily considered the first major elaboration of the doctrine.

Arguing against a claim of "blowback" from Christian provocations, Tilman Nagel pointed out that while Qadi 'Iyads Shifa' was innovative in its detailed catalogue of insults, he mainly provided examples of Muslims who insulted Muhammad, most of whom lived outside of al-Andalus. He seldom mentioned non-Muslims. (19) If the problem of militant Spanish Christians had troubled him, he certainly would not have minced his words. Thus, Nagel judges the development of the law against insulting the Prophet to be a natural consequence of a transformation of "Sunna-piety" into "Muhammad-spirituality" that occurred in Sunni Islam of the twelfth century. (20)

Finally, Hanaa Kilany Omar argues that the triumph of a uniformly harsh law against insulting the Prophet over more lenient interpretations dates to the Mamluk period (1250-1517). For her, the Sunni ulema closed ranks around capital punishment due to several interconnected reasons. The frequency of the crime had reached "almost epidemic proportions" (21)--Omar lists nine cases of sabb in the fourteenth century. (22) Thus, a foreign ruling elite used the law as a pretext to eliminate rivals, (23) to scapegoat local non-Muslims who were already unpopular with the ulema, thereby appearing to be defenders of the faith, (24) and to suppress the increasingly audacious challenges of Shi'is in the Levant. (25)

Nine cases of insulting the Prophet may or may not represent a rash of such activity. In addition, a situation whereby the learned class felt the need to make do with nominally Muslim slave soldiers and guard against insolent non-Muslims and Muslim schismatics seems to have been the rule rather than the exception for much of Islamic history. Nevertheless, Omar's point that the Sunni consensus on insulting the Prophet as a capital crime emerges from a collaboration between the military elite and the ulema is compelling. If Maliki and Hanball judges were willing to sentence insulters of the Prophet to death, Hanafis and Shafi'is may have risked alienation from those in power through leniency.

II

As was mentioned, if one considers the law against insulting the Prophet as a subcategory of apostasy from Islam, the paradigmatic insulter of the Prophet must be a Muslim. But what of the non-Muslim insulter of the Prophet? Such a case is problematic in that it seems to represent a loophole. If the Islamic state allows non-Muslims to practice their religion, which presumably involves making objectionable religious statements, how can they be punished for this? Shafi'i jurists were not the only Sunnis who wrestled with this issue, yet from the eleventh century onward their discussions of this question show an unparalleled depth and sophistication.

At the outset of al-Sarim al-maslul, Ibn Taymiyya provides a brief and unsatisfying account of the views of the Shafi'i school on the non-Muslim insulter of the Prophet. There he mentions a disagreement between the 'Iraqi Shafi'is and the Khurasani Shafi'is on the question of whether or not a non-Muslim insulting the Prophet constituted a violation of the Pact with the Islamic state. (26) The dispute between the two groups revolved around the interpretation of a number of contradictory passages in al-Shafi'i's Kitab al-Umm and in al-Muzani's Mukhtasar.

There are five relevant passages on the issue of the putative non-Muslim insulter of the Prophet in al-Umm and they contradict one another. (1) says that dhimmi criminals "should receive a mandatory punishment (hudda) for that which mandates such punishment but this does not break their Pact ('ahd), which would render killing them licit. That only occurs by refusal to pay the jizya (ilia bi-manc al-jizya)." (27) That is to say, the Pact is not broken in any other way. (2) reads, "if one of you [dhimmis] say of Muhammad, of Almighty God's book, or of His religion something that is not appropriate to say (bi-ma la yanbaghi an yudhkara bihi), the Pact of God (dhimmatu llahi), the caliph, and the Muslims no longer applies to him...," (28) (3) says of a crime that breaks the Pact, "if it occurred [the perpetrator] is not to be killed unless one who does that thing in the Muslim religion would be killed as a hadd punishment or as qisas (retribution)." (29) The same discussion says that if such a non-Muslim does not convert to Islam but says "I repent and I will pay the jizya as I used to pay it...," he is to be punished ('uqiba) but not killed. In the same vein, (4) reads, "if [a dhimmi] says or does what we have described and it has been stipulated that it would make his blood licit (yahillu damahu), we gain custody of him (lafirna bihi), and [then] he refuses to say, T will convert to Islam or pay the jizya,' he is to be killed...," (30) The fourth passage also offers payment of the jizya as repentance for breaking the Pact. (5) emphasizes as well the importance of articulating the rules as to what the Muslims will give to the non-Muslims and what they expect in return and the centrality of jizya payment to the Pact. It specifies that insulting the Prophet or Islam breaks the Pact but argues that the punishment for such crime "does not reach the level of a Quranically mandated (hadd) crime." (31) Al-Muzani's Mukhtasar is not much clearer than Kitab al-Umm on this issue. (32)

Ibn Taymiyya gives us very little information on the Traqi Shafi'is, saying only that for them the Pact specifies actions not to commit (al-murad shart tarkihi) and does not specify acts that, when committed, violate the Pact. He also says that they are wrong. He characterizes the position of the Khurasanis as follows: "The meaning of specification here is specifying that which violates the Pact by doing it, not [an exhaustive] listing of misdeeds. They say: not doing it is implied by the selfsame Pact (al-tark mujabun li-nafs al-'aqd)." (33)

Ibn Taymiyya did not look to Kitab al-Umm for Shaft CT precedents for the harsh treatment of the insulter of the Prophet; he found them in works by the Shafi'i jurists Ibn Mundhir and Abu Sulayman al-Khattabi (d. 996 or 998). "All of the men of learning agree that one who insults the Prophet is [to be] killed," writes Ibn Mundhir, (34) who also describes Ka'b b. al-Ashraf, a Jewish poet of seventh-century Arabia, as the first person to be executed for the crime of insulting the Prophet, for he "irritated God and His messenger. A group volunteered to kill him with the permission of the Prophet and they killed him." (35) With this evidence in hand, Ibn Taymiyya spends little time discussing the difference of opinion (khilaf) between the 'Iraqis and Khurasanis on the issue. (36)

Roughly fifty years after Ibn Taymiyya's treatise, the Shafi'i Taqi al-Din al-Subki wrote one with a nearly identical title, al-Sayf al-maslul 'ala man sabba l-rasul, (37) which set out to prove that the Shafi'i school was tough on punishing the crime of insulting the Prophet and that the putative khilaf in the school was nothing but a pointless debate (al-mujadalatu bi-l-batili). (38) He was driven to write his book by an incident in which a Christian insulted the Prophet and was allowed to go free, without having to convert to Islam so as to repent of his crime. Al-Subki and a group of unnamed Malikis and Shafi'is protested this decision, referring to the story of Ka'b b. al-Ashraf, but they were refuted by other Shafi'is, who relied upon the opinions of al-Nawawi and al-Rafi'i. Because the matter at hand concerned an intra-Shafi'i argument, al-Subki described the khilaf in great detail.

To recapitulate, Kitab al-Umm contradicts itself on three interrelated questions: Are both Muslims and non-Muslims prohibited from insulting the Prophet? Can a non-Muslim violate the Pact only through non-payment of the jizya or also by committing a prohibited act such as insulting the Prophet? If the latter, how does one know which acts break the Pact and which do not?

The 'Iraqis agreed that insulting the Prophet had not been specified (yushrat) in the dhimma Pact. For Abu Hamid al-Isfarayini, whom al-Subki describes as "the shaykh of the 'Iraqis," Ahmad b. Muhammad al-Mahamili, Hasan b. 'Abdallah al-Bandaniji, Sulaym al-Razi, and Nasr al-Maqdisi (all died in the eleventh century), however, (39) the question of whether or not a non-Muslim insulting the Prophet violated the Pact was a moot point because insulting the Prophet was a hadd crime for Muslims and however expansive the protections offered to non-Muslims, they did not cover hadd crimes. This position is usually attributed to Abu Bakr al-Farisi (d. 917), whose severe position can be mitigated by arguing, as Zakariyya al-Ansari (d. ca. 1520) did in a fatwa on the subject, that even if insulting the Prophet was a hadd crime it could still be repented. (40) For this group within the 'Iraqis, therefore, in the context of insulting the Prophet (or any other hadd crime) only the first clause is probative in passage (1) of Kitab al-Umm, that dhimmi criminals "should receive a mandatory punishment for that which mandates such punishment, but this does not break their Pact, which would render killing them licit. That only occurs by refusing to pay the jizya...."

Insofar as capital punishment can only be exacted once, al-Subki seems to find satisfactory these scholars' lack of clarity on the issue of whether or not the crime also constituted a violation of the Pact.

Al-Mahamili and al-Razi acknowledged that their conclusion was devised in response to a broader argument among their 'Iraqi and Khurasani colleagues over whether the fact that the crime was not specified meant that it was allowed or whether it was implicitly prohibited as a form of harm to Muslims. (41) As for the emphasis on the payment of the jizya in Kitab al-Umm, those affiliated with the 'Iraqi school who took this position implied that the admonition to pay the jizya constituted a general ban on rebellious behavior that included insulting the Prophet. (42)

Abu Hamid al-Isfarayini's successor as head of the 'Iraqis, Abu I-Tayyib al-Tabari (d. 1058), seems to have been troubled by the idea that the crime of violating the Pact could potentially encompass all of the laws relating to the dhimmis, which vary in gravity. He said that the rules that were specified for the People of the Book in the dhimma contract belonged to five types: (1) a kind that cannot not be specified (paying the jizya and following the laws of Islam); (43) (2) a kind that does not need to be specified but contravening it violates the Pact (e.g., making war against the Muslims); (3) a kind that is specified that involves harming Muslims (such as giving intelligence to the enemies of the Muslims); (4) belittling religion; and (5) displaying a forbidden thing in the lands of Islam (like wine, pork, and new churches).

Thus, in Abu l-Tayyib's hierarchy of harm, insulting the Prophet fell into a gray area between (3), genuine dangers to Muslim life and limb, and (5), the merely obnoxious. He acknowledged that most of his colleagues considered insulting the Prophet to be on par with that which harms life and limb, but insisted that the sine qua non of the dhimma Pact was the payment of the jizya. (44) Abu Ishaq al-Shirazi (d. 1083), who himself held that the fourth category, which includes insulting the Prophet, must be mentioned in the Pact and that those who violated it violated the Pact, (45) confirmed that Abu l-Tayyib's was the minority view. (46) Other scholars in Abu l-Tayyib's camp who also argued that insulting the Prophet was not a hadd crime were Ibn al-Sabbagh (d. 1094); (47) Husayn b. Mascud al-Baghawi (d. 1122), who took Abu l-Tayyib's line of thought a step further and argued that even if it was specified in the contract, the best option was to conclude that the Pact was not violated by this offense; (48) and Yacqub b. Abi 'Asrun (d. 1267), who stated: "Refraining from [belittling religion] is not specified in the contract, the Pact is not violated [by it], and [the offender] receives what is due him, and this is a discretionary punishment." (49)

In the end, the 'Iraqi Shafi'fis reached consensus on the idea that insulting the Prophet had not been specified in the Pact and therefore could not be the cause of a violation of its terms. For them, with the exception of the payment of the jizya. which was definitely specified, all of the Pact's clauses were contained in a rider (idafa) to the contract, a fact for which they found confirmation in both al-Umm and al-Muzani's Mukhtasar. (50) Most judged the offense of refusing to pay the jizya as analogous to the crime of insulting the Prophet. (51)

The minority, represented by Abu l-Tayyib, seems to have viewed existing criminal laws as dealing sufficiently with the most serious of the clauses. This group also seems to have been concerned with the arbitrariness of extending the severe charge of not paying the jizya to lesser offenses that they did not consider part of the Pact proper. Al-Subki explains their position with reference to displaying wine: "What does not violate the Pact when not specified does not violate it when specified" (ma lam yuntaqad al-cahdu idha lam yushrat lam yuntaqad maca al-shart). In other words, one who commits this offense would not be guilty of violating the Pact whether or not it was part of the contract. The same logic applies to insulting the Prophet. Even if it were accepted for argument's sake that it was specified in the contract, engaging in it would not break the Pact. (52)

On the other side, the scholars of Merv (those Ibn Taymiyya designated as Khurasanis)--and Abu Ishaq al-Marwazi (d. 951), who, despite his name, belonged to the Baghdad or 'Iraqi school--argued that the fact that al-Shafi'i mentioned insulting the Prophet in conjunction with the violation of the Pact was enough to conclude that it was specified as a punishable offense, despite its not appearing in any list of forbidden activities. (53) Although they considered insulting the Prophet a punishable offense for dhimmis, they exempted them from punishment for saying things that they believed, even if such statements offended Muslims. This same position was held by al-Mawardi (d. 1058), al-Juwayni (d. 1085), and al-Ghazali (d. 1111). (54) In his Ta'liqa, the qadi Husayn b. Muhammad al-Marwurrudhi (d. 1069) maintained that impugning the Prophet's genealogy or saying that he committed zina, which dhimmis do not believe, i.e., it is not a tenet of their religion, was a violation of the Pact whether or not it is specified, (55) with which 'Abd al-Rahman b. Muhammad al-Furani (d. 1069) agreed: "Saying something bad about our Prophet that they do not believe" constitutes a violation of the Pact whether or not it is specified in it. (56) Unpleasant things that non-Muslims believe (such as the Prophet's having lied or the idea that he killed Jews without justification) are not violations as long as they are not specified in the Pact. (57)

In his discussion of what breaks the Pact, al-Mawardi designated general principles that underlie the specific clauses of the contract. For him, the clauses of the contract obligated dhimmis to three types of behavior: "outward meekness" (muwada'a fi l-zahir), "avoiding secret treachery" (tark al-khiyana fi l-batin), and "politeness in words and deeds" (mujamala fi l-aqwal wa-l-af'al). (58) For a later Khurasani writer, 'Abd al-Wahid b. Isma'il al-Ruyani (d. 1108), the first category, which insulting the Prophet transgresses, always violates the Pact. The other two are left to the ruler's discretion. (59)

The Khurasani side benefited from having particularly influential partisans. Such famous Shafi'is as al-Juwayni and his two best students, al-Ghazali and Ilkiya al-Harrasi (d. 1110), sided with the Khurasanis. (60) In his Khulasa, al-Ghazali concludes that insulting the Prophet "is specified for the dhimmis" and is the same as not paying the jizya, indeed, "the opinion [to follow] (madhhab) is that for this [crime] their repentance is not accepted and they are killed on the spot (yuqtalu cala makanihim)." (61)

Was the khilaf between the two groups resolved? (The two Shafi'i factions were similarly split on Muslim insulters of the Prophet, with al-Rafi'i allowing repentance for the capital crime and al-Juwayni and most of the Khurasani school rejecting it. (62)) It was still alive in the mid-fourteenth century (al-Subkfs time), with one side invoking al-Rafi'i, some of the 'Iraqis, and al-Nawaw! to justify a non-Muslim insulter of the Prophet going free, (63) but one century later Jalal al-DIn al-Suyuti (d. 1505), who took a firm stance in favor of reliance upon the Malikl Qadi 'Iyad's harsh position, seems unaware of the Shaft'! khilaf on this issue in his treatise on insulting prophets, Tanzih al-anbiya> can tasfih al-aghbiya>. (64) Ibn Hajar al-Haytami (d. 1597), who strongly criticized al-Subkl's stance on blasphemy, also did not mention it in his al-I'lam bi-qawati' al-islam. (65) The nineteenth-century Shafi'i-turned-Hanafi Ibn 'Abidin, who discussed al-Subki's Sayf al-maslul in his revisionist treatise on the law against insulting the Prophet, Tanbih al-wulat wa-l-hukkam cala shatim khayr al-anam, and who sought to marshal evidence for a more lenient approach to the law of insulting the Prophet, seemed only aware of the Khurasani position in the Shafi'i school. (66)

Pending a thorough examination of Abu l-Tayyib al-Tabari's Ta'liqa, this khilaf in the Shafi'i school suggests that this otherwise obscure figure advanced a principled, orthodox, and early opposition to capital punishment for blasphemy; given Ibn 'Abidin's stance and his drawing attention to the Shafi'i khilaf while not mentioning al-Tabari by name, as one piece of evidence in his broader case that careless commentators had allowed the harsh law of insulting the Prophet articulated by Qadi 'Iyad and Ibn Taymiyya to contaminate the legal tradition, (67) also suggests that his position continued to influence the development of doctrine in the school long after his death. Perhaps not coincidentally, al-Tabari was known for having a good sense of humor, as well as having exchanged poems with Abu l-'Ala al-Ma'arri, perhaps the greatest blasphemer in Arabic letters, (68) who said to him: "The earth is proud to bear you on its surface." (69)

III

Ibn Taymiyya's baffling differentiation between 'Iraqi Shafi'is and Khurasani Shaft'is on this issue can now be explained. He stated that the 'Iraqis agreed that the Pact specified actions not to commit rather than acts that, when committed, violated the Pact. In other words, for them, the contract was intended to make sure that dhimmis knew that they should not stop payment of the jizya. The various clauses listed in the rider may have derived some hortatory function from the jizya or they may not have, but contravening them was not the same as violating the contract. (It was, of course, assumed that crimes to which Muslims were liable would be punished and some 'Iraqis included insulting the Prophet among these.) The Khurasanis, according to Ibn Taymiyya, stated that the Pact specified actions that, when committed, violated the Pact. In other words, they considered the most serious of the rules that occur subsequent to the stipulation of jizya payment to have violated the Pact when contravened.

In al-Sarim al-maslul 'ala shatim al-rasul, Ibn Taymiyya contended that insulting the Prophet Muhammad was a capital hadd crime, without recourse to being lifted through any means. He allegedly wrote this book while under house arrest for inciting a mob to kill a priest who had insulted the Prophet and then converted to Islam in 1293, thereby avoiding punishment. (70) Ibn Taymiyya used a wide variety of sources to build his case, the most important of these consisting of episodes from sira literature that demonstrate that the Prophet dealt harshly with those who insulted him, as well as of statements by early figures in the Hanbali, Maliki, and Shafi'i schools that affirm his militant stance--Qadi 'Iyad's Shifa' serves as an important building block for Ibn Taymiyya.

The book seems to be aimed primarily at contemporary Hanafis and Shafi'is who allowed themselves considerable latitude in defining the crime of insulting the Prophet and its proper punishment. There were other Hanafis, however, who wanted to circumvent such leniency but remain Hanafis; they argued that a discretionary punishment for insulting the Prophet could extend to the imposition of the death penalty. In a fatwa on the case of a Christian who had insulted the Prophet, for example, the Hanafi Khayr al-Din al-Ramli (d. 1671) wrote that "our scholars have stated clearly that increasing a discretionary punishment to death (al-taraqqiya fi l-taczir ila l-qatli) is permissible if the motivating factor for it (mujibuhu) is great, and what motivating factor for discretionary punishment could be greater than insulting the Prophet." (71)

Ibn Taymiyya's draconian version of the law against insulting the Prophet enjoyed great success. In a commentary on Hanafi fiqh, a jurist from the Crimea named Ibn al-Bazzaz (d. 1424) elevated the status of Ibn Taymiyya's al-Sarim al-maslul among Hanafi jurists by citing it as the authoritative work on the subject. (72) Al-Bazzaz argued that "[the insulter of the Prophet] be killed as a hadd without any possibility for repentance." This created an intellectual framework that would justify the Ottoman persecution of Shi'is and other Muslim schismatics a century later. (73) Soon after al-Bazzaz's death, the Ottoman jurist Mulla Khusrev (d. 1480) cited his work approvingly for the position that the Hanafi school calls for both Muslim and non-Muslim insulters of the Prophet to be killed and that repentance for the crime is impossible. (74)

Successive Ottoman shuyukh al-islam judged the Shi'is to be heretics and apostates for, among other things, their insults to Abu Bakr, 'Umar, 'Uthman, and 'A'isha (and, by extension, the Prophet himself), and made waging jihad against them a duty for every Muslim. (Among Shi'is in Safavid Iran, insulting these figures was obligatory. (75) Insulting Fatima or the Imams, in contrast, fell under the rubric of the hadd crime of sabb, with no repentance allowed. (76)) Ibn al-Bazzaz was again cited approvingly by shaykh al-islam Kemalpasazade (d. 1534) in a fatwa aimed at mobilizing Sunnis. (77)

Two Hanafi scholars, Husam Chelebi (d. 1520) and the afore-mentioned Ibn 'Abidin (d. 1836), struggled to discredit Ibn al-Bazzaz (and, by extension, the harsh law against insulting the Prophet that he had introduced into Hanafism). Chelebi, a qadi and professor of Islamic law in Anatolia who lived at the height of Ottoman-Safavid tension, argued that the Hanafi school had historically been loath to impose the death penalty for insulting the Prophet and he identified the source of the contagion as Ibn al-Bazzaz. (78) Ibn 'Abidin remarked in al-'Uqud al-durriyya ft tanqih al-fatawa al-hamidiyya, a legal commentary, on how the dehumanization of Shi'is had become a virtual cottage industry among Ottoman scholars; (79) and in another work, Tanbih al-wulat wa-l-hukkam cala shatim khayr al-anam, he greatly expanded upon Chelebi's argument concerning the destructive influence of Ibn al-Bazzaz, later publicizing his revisionist view within the context of a commentary on the whole of Hanafi law. (80) "On the issue [of insulting the Prophet] [Ibn al-Bazzaz] approached his sources in the sloppiest possible manner (qad tasahala ghayata al-tasahhuli)," wrote Ibn 'Abidin. Worse still, subsequent Hanafi commentators perpetuated his mistaken view.

While South Asian Hanafi scholars revered Ibn 'Abidin as "the Syrian shaykh," they seem to have rejected his criticism, siding instead with Ibn al-Bazzaz. (81) The fact that criminal law became the prerogative of the colonial powers made such tough talk mere rhetorical bluster until the "Islamicization" of law in Pakistan of the 1970s.

In conclusion, though Ibn Taymiyya sought to flatten interscholastic distinctions on the crime of insulting the Prophet with his al-Sarim al-maslul 'ala shatim al-rasul, a project later taken up very fruitfully by Ibn al-Bazzaz, jurists advanced arguments within both the Shafi'l and Hanafi schools to the effect that non-Muslims were wont to say things about the Prophet that Muslims would find offensive and should not be punished for it. In fact, neither Ibn Taymiyya's treatise nor Ibn 'Abidin's nineteenth-century attempt to resurrect the more lenient interpretation of the law demonstrates the subtleties of the important khilaf between the two Shafi'l factions of the eleventh century on this issue.

Mark S. Wagner

Louisiana State University

I would like to thank Peri Bearman for her help with this research, as well as those who offered helpful suggestions after my presentation on this topic at the meeting of the American Oriental Society in St. Louis in 2010, particularly Ahmed El Shamsy.

(1.) For example, see the comments of Marcia Inhorn, "A Major Form of Blasphemy," accessible online at http://www.yalealumnimagazine.com/issues/2009_11/yup_inhorn057.html (accessed December 11, 2012). Cf. Saba Mahmood, "Religious Reason or Secular Affect? An Incommensurable Divide?" in Talal Asad et al., Is Critique Secular? Blasphemy, Injury, and Free Speech (Berkeley: Townsend Center for the Humanities, Univ. of California. Berkeley, 2009), 74-78.

(2.) Ed. Muhammad Muhyi al-Din 'Abd al-Hamid (Beirut: al-Maktaba al-'Asriyya), 1990.

(3.) "If the hadd penalty must be imposed, it is not annulled by conversion to Islam, as is the case with the remaining hadd crimes." Ibid., 307.

(4.) Yohanan Friedmann, Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition (Cambridge: Cambridge Univ. Press, 2003), 149 n. 1.

(5.) Friedmann, Tolerance and Coercion, 128-31, 151; Hanaa H. Kilany Omar, "Apostasy in the Mamluk Period: The Politics of Accusations of Unbelief" (Ph.D. diss., Univ. of Pennsylvania, 2001), 100, 103, 143-44. David Powers (Law, Society, and Culture in the Maghrib, 1300-1500 [Cambridge: Cambridge Univ. Press, 2002], 176) points out that in the Maliki school, which was known as the toughest on insulting the Prophet, a minority of qadis offered insulters of the Prophet the opportunity to repent. Cf. Taqi al-Din al-Subki, al-Sayf al-maslul cala man sabba l-rasul, ed. Iyad al-Ghuj (Amman: Dar al-Fath, 2000), 562, 567.

(6.) Ibn Taymiyya, al-Sarim al-maslul, 3.

(7.) Subki, al-Sayf al-maslul, 251-52, 262, 265, 270.

(8.) Ahmad b. Muhammad b. Salama al-Tahawi, Mukhtasar Ikhtilaf al-eulama', ed. 'Abdallah Nadhir Ahmad (Beirut: Dar al-Basha'ir al-Islamiyya, 1995), 3: 504-6; Abu Bakr al-Razi al-Jassas, Sharh Mukhtasar al-Tahawi, ed. Muhammad 'Ubayd Allah Khan (Beirut: Dar al-Siraj/Dar al-Basha'ir al-Islamiyya, 2010), 6: 142.

(9.) Ahmad b. Muhammad al-Quduri, al-Mawsu'a al-fiqhiyya al-muqarana: al-Tajrid, ed. Muhammad Ahmad Sarraj and 'Ali Jum'a Muhammad (Cairo: Dar al-Salam, 2004), 12: 6266-67; Ibn al-Humam, Sharh Fath al-qadir (Beirut: Dar al-Kutub al-'Ilmiyya, 2003), 6: 58-59.

(10.) Badr al-Din al-'Ayni, al-Binaya fi sharh al-Hidaya (Beirut: Dar al-Fikr, 1990), 6: 689.

(11.) This qadi, Abu Muhammad 'Abd al-Rahman b. Muhammad b. 'Alt al-Hulwant (or al-Halwani) (1097-1151), is excoriated by Ibn Taymiyya, al-Sarim al-maslul, 6, for having said: "It makes sense that one who insults God and His messenger not be killed if he is a dhimmi" (yuhtamalu an la yuqtala man sabba llaha wa-rasulahu idha kana dhimmiyyan). Cf. Subki, al-Sayf al-maslul, 239.

(12.) Lutz Wiederhold, "Blasphemy against the Prophet Muhammad and His Companions (sabb al-rasul, sabb al-sahabah): The Introduction of the Topic into Shafi'i Legal Literature and Its Relevance for Legal Practice Under Mamluk Rule," Journal of Semitic Studies 42,1 (1997): 39-70, at 58.

(13.) "Blasphemy: Islamic Concept," in Encyclopedia of Religion, ed. Mircea Eliade (New York: Macmillan, 1987), 2: 243.

(14.) Muhammad Hashim Kamali, Freedom of Expression in Islam (Kuala Lumpur: Berita Publishing, 1994), 208 ("... prominent scholars like Ibn Taymiyya and others have attempted to distinguish blasphemy from apostasy but the majority of jurists [...] subsume blasphemy under apostasy").

(15.) "Hukm man istahza'a bi-1-rasul al-'azim 'alayhi al-salatu wa-1-salamu aw sabbahu aw tanaqqasahu aw istahalla shay'an mimma harramahu," http://www.binbaz.org.sa/mat/8316 (accessed December 11, 2012). As Bin Baz was blind, he must have had to rely on a description of the cartoon.

(16.) Wiederhold, "Blasphemy against the Prophet Muhammad and His Companions," 49.

(17.) Ibid., 44.

(18.) lanina Safran, "Identity and Differentiation in Ninth-Century al-Andalus," Speculum 76,3 (2001): 590.

(19.) Tilman Nagel, "Die Tabuisierung der Person des Propheten Muhammad," in Gnosisforschung und Religionsgeschichte: Festschrift fur Kurt Rudolph zum 65. Geburtstag, ed. H. Preissler and H. Seiwert (Marburg: Diagonal Verlag, 1994), 479-88, at 482, 487.

(20.) Ibid.

(21.) Omar, "Apostasy in the Mamluk Period," 144.

(22.) Ibid., 208-14.

(23.) Ibid., 157.

(24.) Ibid., 189-94.

(25.) Ibid., 251-69.

(26.) Ibn Taymiyya, al-Sarim al-maslul, 8-10.

(27.) Al-Umm (Beirut: Dar al-Fikr, 1990), 4: 198; Subki, al-Sayf al-maslul, 271.

(28.) Al-Umm, 4: 209; Subki, al-Sayf al-maslul, 273.

(29.) Al-Umm, 4: 210-11; Subki, al-Sayf al-maslul, 272.

(30.) Al-Umm, 4: 211; Subki, al-Sayf al-maslul, 273.

(31.) Al-Umm, 4: 218; Subki, al-Sayf al-maslul, 270-71.

(32.) Mukhtasar al-Muzani (printed with al-Umm), 8: 375; Subki, al-Sayf al-maslul, 273-74.

(33.) Ibn Taymiyya, al-Sarim al-maslul, 10; Abdelmagid Turki, "Situation du 'Tributaire' qui insulte l'Islam, au regard de la doctrine et de la jurisprudence musulmanes," Studia Islamica 30 (1969): 39-72, at 60.

(34.) Subki, al-Sayf al-maslul, 233.

(35.) Ibid., 234.

(36.) In his article on al-Sarim al-maslul, Abdelmagid Turki writes, "notre auteur hanbalite prefere ne pas retenir ces subtilites qu'il attribue a l'erreur." Turki, "Situation du 'Tributaire'," 60.

(37.) The 2000 critical edition edited by the Jordanian Iyad al-Ghuj has cross-references to published and then- unpublished Shafi'i works.

(38.) Subki, al-Sayf al-maslul, 113-14.

(39.) It should be borne in mind that many of the so-called 'Iraqis had roots in Khurasan, which explains why some scholars with Khurasani names like Razi and Marwazi are included. Scholars affiliated with each of the two Shafi'i intellectual centers of Baghdad and Merv represent the two sides in the dispute between 'Iraqis and Khurasanis.

(40.) At-I'lam wa-l-ihtimam hi-jam' fatawa shaykhi l-islam Abi Yahya Zakariyya ibn Muhammad al-Ansari, ed. Ahmad 'Ubayd and 'Abd al-'Aziz al-Sayrawan (Beirut: 'Alam al-Kutub, 1984), 277; Subki, al-Sayf al-maslul, 535-36.

(41.) Subki, al-Sayf al-maslul, 240-44.

(42.) Ibid., 253. At least one scholar mentions the humble attitude that jizya collection required of dhimmis (p. 279).

(43.) Ibid., 246.

(44.) Ibid., 247-49.

(45.) Muhammad al-Husayn b. Mas'ud al-Baghawi, al-Tahdhib ftfiqh al-imam al-Shafih, ed. 'Adil Ahmad 'Abd al-Mawjud and 'Ali Muhammad Mu'awwad (Beirut: Dar al-Kutub al-'Ilmiyya, 1997), 7: 505; Muhammad Najib al-Hutay'i, Kitab al-Majmuc shark al-Muhadhdhab li-1-Shlrazi (Jedda: Maktabat al-Irshad, n.d.), 21: 352. The modern editors of al-Baghaw's Tahdhib acknowledge the disagreement among earlier Shafi'is on this point but dismiss the lenient position (7: 506-7 n. 3).

(46.) Subki, al-Sayf al-maslul, 253.

(47.) Ibid., 253.

(48.) Ibid., 277.

(49.) Ibid., 256.

(50.) Ibid., 274.

(51.) Ibid., 266-67.

(52.) Ibid., 268.

(53.) Ibid., 271.

(54.) 'Ali b. Muhammad b. Habib al-Mawardi, al-Hawi al-kabir, ed. 'Ali Mu'awwad and 'Adil 'Abd al-Mawjud (Beirut: Dar al-Kutub al-'Ilmiyya, 1994), 14: 317, 383-84; 'Abd al-Malik b. 'Abdallah al-Juwayni, Nihayat al- matlab fi dirayat al-madhhab, ed. 'Abd al-'Azim Mahmud al-Dib (Jedda: Dar al-Minhaj, 2007), 18: 43-44; al-Ghazali, al-Wasitfi l-madhhab, ed. Muhammad Muhammad Tamir ([Cairo]: Dar al-Salam li-l-Tiba'a wa-l-Nashr wa-l-Tawzi', 1997), 7: 86-87; al-Ghazali, al-Wajizfi fiqh al-imam al-Shafi'i, ed. 'Ali Mu'awwad and 'Adil 'Abd al-Mawjud (Beirut: Dar al-Arqam, 1997), 2: 203.

(55.) This is al-Rafi'i's characterization of the contents of Qadi Husayn's TaHiqa. I was unable to locate this discussion in the printed edition. 'Abd al-Karim b. Muhammad al-Rafi'i, al-'Aziz sharh al-Wajiz al-macruf bi-l- sharh al-kabir, ed. 'Ali Mu'awwad and 'Adil 'Abd al-Mawjud (Beirut: Dar al-Kutub al-'Ilmiyya, 1997), 11: 549-50. Cf. al-Subki, al-Sayf al-maslul, 259.

(56.) al-Subki, al-Sayf al-maslul, 260.

(57.) Ibid., 259.

(58.) al-Mawardi, al-Hawi, 14: 382; al-Subki, al-Sayf al-maslul, 263.

(59.) al-Subki, al-Sayf al-maslul, 263.

(60.) Ibid., 261.

(61.) Ibid., 260-61.

(62.) Ibid., 153, 157, 167-70, 175, 534-37.

(63.) Minhaj et Talibin: A Manual of Muhammadan Law according to the School of Shafii, tr. E. C. Howard (London: W. Thacker and Co., 1914), 469. The modern editor of al-Nawawi's Majmuc (Hutay'i, 21: 353) cites approvingly Abu Bakr al-Farisi's position that dhimmi insulters of the Prophet should be executed as a hadd punishment.

(64.) Ed. Hammad Salama and Muhammad 'Uwayda (Zarqa' Jordan: Maktabat al-Manar, 1989), 45-51.

(65.) Cairo: Matabi' Dar al-Sha'b, 1980.

(66.) Ibn 'Abidin, Majmu'at rasa'il Ibn 'Abidin (Beirut: Dar Ihya' al-Turath al-'Arabi, 1978), 1: 354.

(67.) Ibid., 315, 353-54.

(68.) Jeanette Wakin, "Abu'l Tayyeb Tabari," Encyclopaedia Iranica 1: 390.

(69.) Ahmad b. Muhammad Ibn Khallikan, Wafayat al-a'yan wa-anba' abna' al-zaman, ed. Ihsan 'Abbas (Beirut: Dar Sadir, n.d.), 2: 514; Daphna Ephrat, A Learned Society in a Period of Transition: The Sunni 'Ulama' of Eleventh-Century Baghdad (Albany: SUNY Press, 2000), 53.

(70.) Thomas Michel, A Muslim Theologian's Response to Christianity (Delmar, NY: Caravan Books, 1984), 70-71.

(71.) Khayr al-Din b. Ahmad al-Ramli, Kitab al-Fatawa al-khayriyya li-nafc al-bariyya (Cairo: Bulaq, 1882-83), 1: 103; Subki, al-Sayf al-maslul, 550.

(72.) GAL, Supp. II: 316; Taskopruluzade Ahmad Effendi, al-Shaqa'iq at-nu'maniyya fi culama> al-dawla al-'uthmaniyya (Beirut: Dar al-Kitab al-'Arabi, 1975), 21; Muhammad 'Abd al-Hayy al-LaknawI, Kitab al-Fawa'id al-bahiyya fi tarajim al-hanafiyya (Beirut: Dar al-Ma'rifa, 1950), 172, 187-88.

(73.) Al-Fatawa al-bazzaziyya or al-Jami' al-wajiz, printed in the margins of al-Fatawa al-hindiyya (Beirut: Dar al-Macrifa, n.d., reprint of Bulaq 1892 edition), 6: 321-22.

(74.) Molla Husrev, Kitab Durar al-hukkam fi sharh Ghurar al-ahkam (Egypt: al-Matba'a al-Wahabiyya, 1877), 1: 273.

(75.) In Nafahat al-lahut fi la'n al-jibt wa-1-taghut (ed. Muhammad al-Hassun [Qumm: Manshurat al-Ihtijaj, n.d.], 17-18), a 1511 treatise on the ritual cursing, 'All b. al-Husayn al-Karakl called upon the Shi'is of the frontier to overcome both their fears of Sunni power and their reluctance to inadvertently commit a crime through insults. According to al-Karaki, everybody did it, including Sunnis and non-Muslims, and instead of the overly emotional term "cursing," one ought to consider it a form of distancing oneself from something objectionable or expelling an objectionable thing. Cursing can be one of the best forms of prayer, he claimed (pp. 19-21). The activities of the militia of sorts responsible for promoting ritual cursing in Safavid Iran, the tabarra'iyan, is discussed by Rosemary Stanfield-Johnson, "The Tabarra'iyan and the Early Safavids," Iranian Studies 37,1 (2004): 47-71; eadem, "Sunni Survival in Safavid Iran: Anti-Sunni Activities during the Reign of Tahmasp I," Iranian Studies 27 (1994): 123-33.

(76.) Ibn Babawayhi, al-Hidaya (Qumm: Mu'assasat al-Imam al-Hadi, 1997), 295; al-Tusi, al-Nihaya (Qumm: Intisharat Quds Muhammad!, n.d.), 730; al-Sharif al-Murtada, al-Intisar (Qumm: Mu'assasat al-Nashr al-Islami al-Tabi' li-Iama'at al-Muddarisin bi-Qumm al-Musharrafa, 1995), 480-81; Hamza b. 'Ali b. Zuhra al-Halabi, Ghunyat al-nuzifl ila 'ilmay al-usul wa-l-furu', ed. Ibrahim al-Bahadiri (Qumm: Maktabat al-Tawhid, n.d.), 1: 428; Muhammad b. Hasan al-Fadil al-Hindi, Kashf al-litham (Qumm: Maktabat Ayat Allah al-'Uzma al-Mar'ashi al-Najafi, 1984-85), 2: 415-16. Aside from differences in the figures who are covered under the rubric of sabb al-rasul, Twelver discussions of insulting the Prophet are distinguished by a concern with those who perform the execution and the dangers to which they might be exposed in doing so. Bernard Lewis, "Behind the Rushdie Affair," The American Scholar 60,2 (1991): 193-94.

(77.) Adel Allouche, The Origins and Development of the Ottoman-Safavid Conflict (906-962/1500-1555) (Berlin: Klaus Schwarz, 1983), 171-73; M. Ertugrul Duzdag, Seyhulislam Ebussuud efendi fetvalari isiginda 16. asir Tiirk hayati (Istanbul: Enderun Kitabevi, 1972), 110; Colin Imber, "The Persecution of the Ottoman Shi'ites according to the miihimme defterleri, 1565-1585," Der Islam 56 (1979): 271.

(78.) In Nur al-cayn fi islah jamfl al-fusulayn li-Ibn Qadl Samawna, Ahmad b. Muhammad Nashanjlzade (d. 1621-2) describes Chelebi as "one of the great ulema of Sultan Selim Khan b. Bayezld Khan" who wrote "a treatise on questions pertaining to insulting the Prophet...." King Saud University, MS 3777, http://makhtota.ksu.edu. sa/makhtota/4061/281 (accessed December 11, 2012). See also Ta[section]kopruluzade, al-Shaqa'iq al-nucmaniyya, 231.

(79.) Ed. Muhammad 'Uthman (Beirut: Dar al-Kutub al-'Ilmiyya, 2008), 1: 202-6.

(80.) Tilman Nagel addressed Ibn 'Abidin's attempt at revising the law of insulting the Prophet in The History of Islamic Theology from Muhammad to the Present (Princeton: Markus Weiner Publishers, 2000), 256-57, and in his "Autochthone Wurzeln des islamischen Modernismus: Bemerkungen zum Werk des Damaszeners Ibn 'Abidin (1784-1836)," Zeitschrift der Deutschen Morgenlandischen Gesellschaft 146 (1996): 98-103. For other perspectives on Ibn 'Abidin's willingness to challenge the Ottoman authorities, viz., his strong criticism of the legal justifications for Ottoman land policies, see Kenneth M. Cuno, "Was the Land of Ottoman Syria miri or milk? An Examination of Juridical Differences within the Hanafi School," Studia Islamica 81,1 (1995): 121-52; Sabrina Joseph, Islamic Law on Peasant Usufruct in Ottoman Syria: 17th to Early 19th Century (Leiden: Brill, 2012), 120-22, 138-39, 165-67.

(81.) Ahmad Rida Khan, Fatava-yi rizviyyah (Lahore: Raza Foundation, 1991-2006), 14: 296-302, 636-45, 15: 230-33.
COPYRIGHT 2015 American Oriental Society
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2015 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Wagner, Mark S.
Publication:The Journal of the American Oriental Society
Article Type:Essay
Geographic Code:7IRAN
Date:Jul 1, 2015
Words:7095
Previous Article:The new materia medica of the Islamicate tradition: the pre-Islamic context.
Next Article:A new rule in Vedic metrics.
Topics:

Terms of use | Privacy policy | Copyright © 2019 Farlex, Inc. | Feedback | For webmasters