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

Author:Wagner, Mark S.
Position:Essay
 
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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...

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