John Esposito, Noah Feldman working to make the world safe for Shariah

(Compiler's note: Another "must read" rca)

By Robert Spencer

An announcement from Esposito's Prince Alwaleed bin Talal Center for Muslim-Christian Understanding at Georgetown University:

Is There a Role for Shari'ah in Modern States? Oct 23 2008 9:30am-5pm Location Leavey Center GU Conference Center Access This event has been marked as open to the public. Description --- 9:30am ---

Opening and Welcome: John Esposito

Keynote: Noah Feldman

--- 10:45am ---

Panel 1: Rethinking Islam? Myths and Realities of Islamic Law

Asifa Quraishi, 'Women and Shari’ah in Modern Law' (TBC)

Sherman Jackson, 'Can Shari'ah be Reformed?'

Jonathan Brown, 'Shari'ah Meets Reality: Giving Fatwas in Egypt'

--- 12:15pm ---

Break for Lunch

--- 1:30pm ---

Panel 2: The Appeal of Shari'ah in Modern Muslim Politics & State Building

Clark Lombardi, 'Shari'ah and Constitution Making' (Egypt, Indonesia, and Afghanistan)

Intisar Rabb, 'The Shari'ah Clause in Modern Constitutions'

Nathan Brown, 'Shari’ah and Constitutional Reform'

--- 3pm ---

Break

--- 3:15pm ---

Panel 3: Shari'ah in a Human Rights Era

Abdulaziz Sachedina, 'Islam and Human Rights: A Clash of Universalisms?'

Mohammad Fadel, 'Islamic Law and International Human Rights' (Non-Muslim minorities and apostasy)

Andrew March, 'Shari'ah and Muslim Minorities in Europe'

Noah Feldman recently sketched out in the New York Times an inviting portrait of Shariah as the rule of law and a legitimate basis for order in an Islamic society. Glaringly absent from his lengthy paean to Shariah, however, is any mention of how Islamic law institutionalizes discrimination against non-Muslims – which makes it anything but a stable foundation for a genuinely pluralistic republic.

Shariah contains the requirement that the “People of the Book” – that is, Jews, Christians, and certain other groups of non-Muslims -- must be “invited” to enter Islam and then warred against until they either convert or pay the jizya, a special tax on non-Muslims. This stipulation is founded upon the Muslim holy book, the Qur’an: “Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the religion of Truth, (even if they are) of the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued” (9:29).

Muhammad, the prophet of Islam, expands upon these choices:

Fight in the name of Allah and in the way of Allah. Fight against those who disbelieve in Allah. Make a holy war; do not embezzle the spoils; do not break your pledge; and do not mutilate (the dead) bodies; do not kill the children. When you meet your enemies who are polytheists, invite them to three courses of action. If they respond to any one of these you also accept it and withhold yourself from doing them any harm. Invite them to (accept) Islam; if they respond to you, accept it from them and desist from fighting against them…. If they refuse to accept Islam, demand from them the Jizya. If they agree to pay, accept it from them and hold off your hands. If they refuse to pay the tax, seek Allah’s help and fight them.

Islamic jurists worked from these several other passages of Qur’an and Hadith in order to elaborate in Shariah three choices for non-Muslims that Muslims are facing in jihad: conversion to Islam, submission under Islamic rule (which involves a carefully delineated second-class citizen status centered around but by no means limited to the jizya, the Qur’anic tax on non-Muslims), or death. The goal of jihad is thus the incorporation of non-Muslims into Muslim society, either by conversion or submission. The laws that consider non-Muslims dhimmis, protected people, and enforce their submission to Muslims are taught by all the schools of Islamic jurisprudence, which means that they are universally understood as pertaining to Shariah.

Shariah is therefore a direct challenge to the idea that all men are created equal and are endowed by their Creator with certain unalienable rights. Non-Muslims in the dhimmi system of Islamic law are not given the choice or the opportunity to live in Islamic society as equals of Muslims. While Jews, Christians, and other non-Muslims are allowed to practice their religions, they must do so under severely restrictive conditions that remind them of their second-class citizen status at every turn.

Modern Islamic apologists frequently reference Islamic tolerance, pointing to the Qur’an’s recognition that Jews and Christians have received legitimate revelations from Allah. The point out also that Jews and Christians were granted the right to practice their religions in Islamic states. However, it is a grave anachronism, not to mention a gross factual error, to equate the stipulations of Islamic law with modern-day notions of freedom of thought and tolerance. One hadith attests to the decidedly second-class status to which non-Muslims were relegated: “As for Sura Tauba [Sura 9], it is meant to humiliate (the non-believers and the hypocrites).”

In Shariah, this condition of submission is known as the dhimma, the protection of the Muslims, and those within it are dhimmis, protected (or guilty) people. The classical Islamic scholar As-Sawi specifies that the payment of the jizya signifies that the non-Muslims are “humble and obedient to the judgements of Islam.” The verse also specifies that the non-Muslims “feel themselves subdued,” or assume a “state of abasement.” The Bedouin commander al-Mughira bin Sa’d spelled this out when he met the Persian warrior Rustam. Said al-Mughira: “I call you to Islam or else you must pay the jizya while you are in a state of abasement.”

Rustam replied, “I know what jizya means, but what does ‘a state of abasement’ mean?”

Al-Mughira explained: “You pay it while you are standing and I am sitting and the whip is hanging over your head.”

Similarly, the renowned Qur’anic commentator Ibn Kathir (1301-1372), whose writings are still influential today, says that the dhimmis must be “disgraced, humiliated and belittled. Therefore, Muslims are not allowed to honor the people of Dhimmah or elevate them above Muslims, for they are miserable, disgraced and humiliated.” The seventh-century jurist Sa’id ibn al-Musayyab stated: “I prefer that the people of the dhimma become tired by paying the jizya since He says, ‘until they pay the jizya with their own hands in a state of complete abasement.’” As-Suyuti elaborates that this verse “is used as a proof by those who say that it is taken in a humiliating way, and so the taker sits and the dhimmi stands with his head bowed and his back bent. The jizya is placed in the balance and the taker seizes his beard and hits his chin.” He adds, however, that “this is rejected according to an-Nawawi who said, ‘This manner is invalid.’” Zamakhshari, however, agreed that the jizya should be collected “with belittlement and humiliation.”

The Tafsir al-Jalalayn specifies that the payment of the jizya signifies that the non-Muslims are “humble and obedient to the judgements of Islam.” As-Suyuti notes that the jizya is “not taken from someone in a state of hardship,” although that was a stipulation at times honored in the breach. For example, a contemporary account of the Muslims’ conquest of Nikiou, an Egyptian town, in the 640’s, says that “it is impossible to describe the lamentable position of the inhabitants of this town, who came to the point of offering their children in exchange for the enormous sums that they had to pay each month…”

Ibn Kathir also quotes at length from an agreement made with a group of Christians by the second Caliph, Umar ibn al-Khattab, who led the Muslims from 634 to 644 (Muhammad died in 632). The stipulations in this agreement, which is of dubious historical value, coincide with the foundation for the Shariah’s rules regarding the dhimmis. Although various specific regulations were relaxed or ignored outright in various times and places throughout Islamic history, generally they remain part of the Shariah for anyone with the will and power to enforce them. According to Ibn Kathir, the Christians making this pact with Umar say:

We made a condition on ourselves that we will neither erect in our areas a monastery, church, or a sanctuary for a monk, nor restore any place of worship that needs restoration nor use any of them for the purpose of enmity against Muslims.

This, of course, allowed Islamic rulers great and small to take possession of churches whenever they so desired. Since the testimony of Christians was discounted and in many cases disallowed, often a simple charge by a Muslim that a church was being used to foment “enmity against Muslims” was sufficient for that church to be seized.
The great historian of jihad and dhimmitude, Bat Ye’or, notes that “the refusal to accept the testimony of the dhimmi was based on the belief in the perverse and mendacious character of infidels since they stubbornly persisted in denying the superiority of Islam.”

Ibn Kathir states this plainly: “Had they been true believers in their religions, that faith would have directed them to believe in Muhammad . . . Therefore, they do not follow the religion of the earlier Prophets because these religions came from Allah, but because these suit their desires and lusts.”

As a result, Jews and Christians had no recourse: “Churches and synagogues were rarely respected. Regarded as places of perversion, they were often burned or demolished in the course of reprisals against infidels found guilty of overstepping their rights.”

The Christians’ agreement with the caliph Umar continues: “We will not prevent any Muslim from resting in our churches whether they come by day or night. . . . Those Muslims who come as guests, will enjoy boarding and food for three days.” It should be obvious to any impartial observer how far this is from modern-day Western ideas of tolerance. Just how far is made clearer by the fact that this charity was not returned. A traveler to Famagusta in North Cyprus in 1651, when laws regarding dhimmitude were still very much in effect in the Ottoman Empire, “recounts that all the churches there had been converted into mosques and that Christians did not have the right to spend the night there.”

The more things change, the more they stay the same: Famagusta was overrun by Turkish troops in 1974. The Greek population was forced to evacuate and the city was sealed off; no one was allowed to enter. Now the city’s many churches are marketed to international tourists as “icon museums,” while the mosques (many of them converted churches) are still in active use. Tourists to the former St. Nicholas Cathedral, now the Lala Mustafa Pasha Mosque, are advised by one tour guide that “the interior is of course a Muslim prayer hall, the floor being covered with carpets, and all visitors must go round with the Imam.”

Umar’s agreement with the Christians also mandates a number of humiliating regulations to make sure that the dhimmis “feel themselves subdued.” The Christians concede:

We will not . . . prevent any of our fellows from embracing Islam, if they choose to do so. We will respect Muslims, move from the places we sit in if they choose to sit in them. We will not imitate their clothing, caps, turbans, sandals, hairstyles, speech, nicknames and title names, or ride on saddles, hang swords on the shoulders, collect weapons of any kind or carry these weapons.

The regulations about different clothing and hairstyle, of course, made it easier to spot a dhimmi in a crowd and to make sure that he had paid the jizya and submitted to other legal requirements. The prohibition against weapons made it less likely that such investigations would meet with resistance.

We will not encrypt our stamps in Arabic, or sell liquor. We will have the front of our hair cut, wear our customary clothes wherever we are, wear belts around our waist, refrain from erecting crosses on the outside of our churches and demonstrating them and our books in public in Muslim fairways and markets. We will not sound the bells in our churches, except discreetly, or raise our voices while reciting our holy books inside our churches in the presence of Muslims. . . .

After these and other rules are fully laid out, the agreement concludes: “These are the conditions that we set against ourselves and followers of our religion in return for safety and protection. If we break any of these promises that we set for your benefit against ourselves, then our Dhimmah (promise of protection) is broken and you are allowed to do with us what you are allowed of people of defiance and rebellion.”

Ibn Kathir also explains that the jizya was designed to offer financial compensation to Muslims who suffered losses by breaking all commercial ties with the early Muslim community’s polytheistic neighbors: “Allah compensated them for the losses they incurred because they severed ties with idolaters, by the Jizyah they earned from the People of the Book.”

While the regulations of dhimmitude are not enforced in countries where the Shariah is not the law of the land, and is ignored in whole or part in many places that do hold to the Shariah, they are still a part of Islamic law — as a Saudi preacher recently emphasized. In a Friday sermon at a mosque in Mecca, Sheikh Marzouq Salem Al-Ghamdi echoed Ibn Kathir: “The Jews and Christians are infidels, enemies of Allah, his Messenger, and the believers. They deny and curse Allah and his Messenger....How can we draw near to these infidels?”

He also repeated the Shariah’s classic injunctions on dhimmitude:

If the infidels live among the Muslims, in accordance with the conditions set out by the Prophet — there is nothing wrong with it provided they pay Jizya to the Islamic treasury. Other conditions are . . . that they do not renovate a church or a monastery, do not rebuild ones that were destroyed, that they feed for three days any Muslim who passes by their homes . . . that they rise when a Muslim wishes to sit, that they do not imitate Muslims in dress and speech, nor ride horses, nor own swords, nor arm themselves with any kind of weapon; that they do not sell wine, do not show the cross, do not ring church bells, do not raise their voices during prayer, that they shave their hair in front so as to make them easily identifiable, do not incite anyone against the Muslims, and do not strike a Muslim...If they violate these conditions, they have no protection.

The renowned twentieth century jihad theorist Sayyid Qutb, in his manifesto Milestones, quotes at length from the great medieval scholar Ibn Qayyim (1292-1350), who, says Qutb, “has summed up the nature of Islamic Jihaad.” Ibn Qayyim outlines the stages of the Muhammad’s prophetic career: “For thirteen years after the beginning of his Messengership, he called people to God through preaching, without fighting or Jizyah, and was commanded to restrain himself and to practice patience and forbearance. Then he was commanded to migrate, and later permission was given to fight. Then he was commanded to fight those who fought him, and to restrain himself from those who did not make war with him. Later he was commanded to fight the polytheists until God’s religion was fully established.”

Qutb summarizes the stages: “Thus, according to the explanation by Imam Ibn Qayyim, the Muslims were first restrained from fighting; then they were permitted to fight; then they were commanded to fight against the aggressors; and finally they were commanded to fight against all the polytheists.” He further quotes Ibn Qayyim as emphasizing the need to wage war against and subjugate non-Muslims, particularly the Jewish and Christian “People of the Book”: “After the command for Jihaad came, the non-believers were divided into three categories: one, those with whom there was peace; two, the people with whom the Muslims were at war; and three, the Dhimmies....It was also explained that war should be declared against those from among the ‘People of the Book’ who declare open enmity, until they agree to pay Jizyah or accept Islam. Concerning the polytheists and the hypocrites, it was commanded in this chapter that Jihaad be declared against them and that they be treated harshly.” Qutb says that if someone rejects Islam, “then it is the duty of Islam to fight him until either he is killed or until he declares his submission.”

But surely aside from some radical traditionalists like Qutb, Shariah has evolved in the modern age, no? Unfortunately not; for many centuries, independent study of the Qur’an and Sunnah has been discouraged among Muslims, who are instead expected to adhere to the rulings of one of those established schools. Since the death of Ahmed ibn Hanbal, from whom the Hanbali school takes its name, in 855 A.D., no one has been recognized by the Sunni Muslim community as a mujtahid of the first class – that is, someone who is qualified to originate legislation of his own, based on the Qur’an and Sunnah but not upon the findings of earlier mujtahedin. Islamic scholar Cyril Glasse notes that “‘the door of ijtihad is closed’ as of some nine hundred years, and since then the tendency of jurisprudence (fiqh) has been to produce only commentaries upon commentaries and marginalia.”

Other Muslims, however, disagree. Seyyed Hossein Nasr of George Washington University, in his consideration of Islam and modernity, Ideals and Realities of Islam, says: “Certain modernists over the past century have tried to change the Shari‘ah, to reopen the gate of ijtihad, with the aim of incorporating modern practices into the Law and limiting the function of Shari‘ah to personal life. All of these activities emanate from a particular attitude of spiritual weakness vis-à-vis the world and surrender to the world. Those who are conquered by such a mentality want to make the Shari‘ah ‘conform to the times,’ which means to the whims and fancies of men and the ever changing human nature which has made ‘the times.’ They do not realize that it is the Shari‘ah according to which society should be modeled not vice versa.”

In any case, whether it is a manifestation of “chronic intellectual stagnation” or fidelity to the Shariah, along with the stasis in other areas there has been a lack of development in the doctrines of dhimmitude that mandate the subjugation of non-Muslims. Even Islamic apologist Karen Armstrong admits that “Muslim jurists...taught that, because there was only one God, the whole world should be united in one polity and it was the duty of all Muslims to engage in a continued struggle to make the world accept the divine principles and create a just society.” Non-Muslims “should be made to surrender to God’s rule. Until this had been achieved, Islam must engage in a perpetual warlike effort.” But, she says, “this martial theology was laid aside in practice and became a dead letter once it was clear that the Islamic empire had reached the limits of its expansion about a hundred years after Muhammad’s death.”

The problem is that however much of a dead letter it became in practice during times of weakness in the Islamic world, this doctrine of Islamic supremacism was never reformed or rejected. The Saudi Sheikh Muhammad Saalih al-Munajid (1962-), whose lectures and Islamic rulings (fatawa) circulate widely throughout the Islamic world, demonstrates this in a discussion of whether Muslims should force others to accept Islam. In considering Qur’an 2:256 (“There is no compulsion in religion,”) the Sheikh quotes Qur’an 9:29, as well as 8:39 (“And fight them until there is no more Fitnah (disbelief and polytheism, i.e. worshipping others besides Allaah), and the religion (worship) will all be for Allaah Alone [in the whole of the world]”), and the Verse of the Sword. Of the latter, Sheikh Muhammad says simply: “This verse is known as Ayat al-Sayf (the verse of the sword). These and similar verses abrogate the verses which say that there is no compulsion to become Muslim.”

Underscoring the fact that none of this is merely of historical interest is another Shafi’i manual of Islamic law that in 1991 was certified by the highest authority in Sunni Islam, Cairo’s Al-Azhar University, as conforming “to the practice and faith of the orthodox Sunni community.” This manual, ‘Umdat al-Salik (available in English as Reliance of the Traveller), spends a considerable amount of time explaining jihad as “war against non-Muslims.” It spells out the nature of this warfare in quite specific terms: “the caliph makes war upon Jews, Christians, and Zoroastrians . . . until they become Muslim or pay the non-Muslim poll tax.” It adds a comment by a Jordanian jurist that corresponds to Muhammad’s instructions to call the unbelievers to Islam before fighting them: the caliph wages this war only “provided that he has first invited [Jews, Christians, and Zoroastrians] to enter Islam in faith and practice, and if they will not, then invited them to enter the social order of Islam by paying the non-Muslim poll tax (jizya) . . . while remaining in their ancestral religions.”

Also, if there is no caliph, Muslims must still wage jihad. And there is something else also. In Islamic law, jihad warfare may be defensive or offensive. Jihad is ordinarily fard kifaya – an obligation on the Muslim community as a whole, from which some are freed if others take it up. Jihad becomes fard ayn, or obligatory on every individual Muslim to aid in any way he can, if a Muslim land is attacked. That is what jihadists argue today – that the American presence in Iraq and Afghanistan makes jihad fard ayn, or obligatory on every individual Muslim. But this is just jihad for the defense of Muslim lands, although the defensive aspect of jihad activity is often interpreted quite elastically. It is the province of the caliph, who for Sunni Muslims was the successor of Muhammad as the political, military, and religious leader of the Muslim community, to authorize the waging of offensive jihad to spread the rule of Islamic law into non-Muslim lands – but the caliphate was abolished by the secular Turkish government in 1924. A primary objective of the contemporary jihad movement is to restore the caliphate, precisely so that offensive jihad may once again be waged.

Although the jizya has not been collected on a formal basis in the Islamic world since the mid-nineteenth century, jihadists hope to revive it along with the other features of the dhimma. In a recent Friday sermon preached in Islam’s holiest city, Mecca, Sheikh Marzouq Salem Al-Ghamdi said this about Jews and Christians in Muslim lands:

If the infidels live among the Muslims, in accordance with the conditions set out by the Prophet — there is nothing wrong with it provided they pay Jizya to the Islamic treasury. Other conditions are...that they do not renovate a church or a monastery, do not rebuild ones that were destroyed, that they feed for three days any Muslim who passes by their homes...that they rise when a Muslim wishes to sit, that they do not imitate Muslims in dress and speech, nor ride horses, nor own swords, nor arm themselves with any kind of weapon; that they do not sell wine, do not show the cross, do not ring church bells, do not raise their voices during prayer, that they shave their hair in front so as to make them easily identifiable, do not incite anyone against the Muslims, and do not strike a Muslim ...If they violate these conditions, they have no protection.

In sum, the infidels must humble themselves before the Muslims, and accept the rule of Shariah.

And while Shariah is not in full force today in most of the Islamic world, it remains a cultural hangover – and non-Muslims suffer as a result.

In March 2007, Islamic gangs knocked on doors in Christian neighborhoods in Baghdad, demanding payment of the jizya. Meanwhile, Christians all over Iraq live increasingly in an atmosphere of terror. Women are threatened with kidnapping or death if they do not wear a headscarf; in accord with traditional Islamic legal restrictions on Christians “openly displaying wine or pork” (in the words of a legal manual endorsed by Cairo’s venerable Al-Azhar University), liquor store owners in Iraq have likewise been threatened. Many businesses have been destroyed, and the owners have fled.

In fact, half of the nation’s prewar 700,000 Christians have now fled the country since the fall of Saddam Hussein. And even in the relatively secular Iraq of Saddam Hussein, where the notorious Deputy Prime Minister Tariq Aziz was a Chaldean Catholic Christian, the small Christian community faced random violence from the Muslim majority. In 1996 and 1997, Kurds in Iraq killed over thirty Christians in northern Iraq. Aside from outbreaks of actual persecution, Christians were routinely pressured to marry Muslims. Iraqi Christians today are streaming into Syria, or, if they can, out of the Middle East altogether. An Iraqi businessman now living in Syria lamented that “now at least 75% of my Christian friends have fled. There is no future for us in Iraq.”

In Egypt, Coptic Christians have suffered discrimination and harassment for centuries. Rather than improving with time and being mitigated by the growing tolerance of the global community, the plight of Christians is increasing today, with mob attacks on churches and individual Christians becoming more frequent. In February 2007, rumors that a Coptic Christian man was having an affair with a Muslim woman – a violation of Islamic law – led to the destruction of several Christian-owned shops in southern Egypt. And besides this physical persecution, Christians have been restricted from speaking freely. In August 2007, two Coptic rights activists were arrested for “publishing articles and declarations that are damaging to Islam and insulting to Prophet Mohammed on the United Copts Web site.”

Mistreatment of Christians in Egypt frequently meets with indifference – or worse yet, complicity -- from Egyptian authorities. In June 2007, rioters in Alexandria vandalized Christian shops, attacked and injured seven Christians, and damaged two Coptic churches. Police allowed the mob to roam free in Alexandria’s Christian quarter for an hour and a half before intervening. The Compass Direct news service, which tracks incidents of Christian persecution, noted: “In April 2006, Alexandria was the scene of three knife attacks on churches that killed one Christian and left a dozen more injured. The government appeared unable or unwilling to halt subsequent vandalism of Coptic-owned shops and churches...”

In Pakistan the situation for Christians is no better. Fr. Emmanuel Asi, chairman of the Theological Institute for Laity in Lahore and secretary of the Catholic Bible Commission of Pakistan, said in August 2007 that Pakistani Christians are frequently denied equality of rights with Muslims and subjected to various forms of discrimination. Jihadist aggression, he said, “at any time” can bring “every imaginable kind of problem” upon Pakistan’s Christians.

In addition to group attacks, there is also individual harassment. Pakistani Christian schoolteacher Cadherine Shaheen was harassed on the job, “pressured to convert to Islam.” Finally she was told that she would have to convert to Islam or leave the school. Soon she was accused of blasphemy. All the area mosques posted copies a poster bearing her name and picture. “This was a death sentence for me,” says Shaheen. “It’s considered an honor for one of the Muslim men to kill a blasphemer. Just before me, the Muslims murdered a school principal accused of blasphemy. I was next.”

Shaheen went underground, whereupon Pakistani police arrested her father and brothers. Her father, age 85, soon died. Cadherine made her way to the United States. “It’s horrible for Christians in Pakistan,” she says. “The Muslims take our land, rob our homes, try to force us to accept Islam. Young girls are kidnapped and raped. Then they’re told that if they want a husband who will accept them after that defilement, they must become Muslim.”

Those who suffer most are converts from Islam to Christianity, for virtually all Muslim legal authorities agree that anyone who renounces Islam deserves death. Muhammad himself commanded death for apostates: “Whoever changed his Islamic religion, then kill him.” This is still the position of all the schools of Islamic jurisprudence, although there is some disagreement over whether the law applies only to men, or to women also.

At Cairo’s Al-Azhar University, the most prestigious and influential institution in the Islamic world, an Islamic manual certified as a reliable guide to Sunni Muslim orthodoxy states: “When a person who has reached puberty and is sane voluntarily apostatizes from Islam, he deserves to be killed.” Although the right to kill an apostate is reserved in Muslim law to the leader of the community and other Muslims can theoretically be punished for taking this duty upon themselves, in practice a Muslim who kills an apostate needs to pay no indemnity and perform no expiatory acts (as he must in other kinds of murder cases under classic Islamic law). This accommodation is made because killing an apostate “is killing someone who deserves to die.”

IslamOnline, a website manned by a team of Islam scholars headed by the internationally influential Sheikh Yusuf al-Qaradawi, explains, “If a sane person who has reached puberty voluntarily apostatizes from Islam, he deserves to be punished. In such a case, it is obligatory for the caliph (or his representative) to ask him to repent and return to Islam. If he does, it is accepted from him, but if he refuses, he is immediately killed.” And what if someone doesn’t wait for a caliph to appear and takes matters into his own hands? Although the killer is to be “disciplined” for “arrogating the caliph’s prerogative and encroaching upon his rights,” there is “no blood money for killing an apostate (or any expiation)” – in other words, no significant punishment for the killer.

Abdul Rahman knows all this well. In February 2006 in Afghanistan, he was arrested for the crime of leaving Islam for Christianity. The Afghan Constitution stipulates that “no law can be contrary to the beliefs and provisions of the sacred religion of Islam.” Even after the arrest of Abdul Rahman, Western analysts seem to have had trouble grasping the import of this provision. A “human rights expert” quoted by the Times of London summed up confusion widespread in Western countries: “The constitution says Islam is the religion of Afghanistan, yet it also mentions the Universal Declaration of Human Rights, and Article 18 specifically forbids this kind of recourse. It really highlights the problem the judiciary faces.”

But in fact there was contraction. The Constitution may declare its “respect” for the Universal Declaration of Human Rights, but it never says about the Declaration what it says about Islamic law -- that no law can be made contradicting it. The Constitution’s definition of religious freedom is explicit: “The religion of the state of the Islamic Republic of Afghanistan is the sacred religion of Islam,” it says. “Followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of law” (emphasis added).

The Islamic death penalty for apostasy is deeply ingrained in Islamic culture -- which is one reason why it was Abdul Rahman’s family that went to police to file a complaint about his conversion, even so many years after the fact. Whatever triggered their action in 2006, they could be confident that the police would receive such a complaint with the utmost seriousness.

After an international outcry, Abdul Rahman was eventually spirited out of Afghanistan to relative safety in Italy. But the conditions under which he was originally arrested still remain in the Afghani constitution today. And other, less celebrated converts to Christianity in the Islamic world continue to face the dire punishment Rahman barely avoided. One of these is the Sudanese Al-Faki Kuku Hassan, whom news reports describe as “a former Muslim sheikh who converted to Christianity in 1995.” Hassan was arrested for apostasy in March 1998 and held, despite international protests, until his declining health (he suffered a stroke in Spring 2001) led to his release on May 31, 2001.

Muhammad Sallam, an Egyptian convert to Christianity, was arrested in 1989 and tortured; he was arrested again in 1998 and spirited away to an unknown destination. Two other converts to Christianity in Egypt, Dr. Abdul-Rahman Muhammad Abdul-Ghaffar and Abdul Hamid Beshan Abd El Mohzen, were held in solitary confinement for extended periods in the late 1980s. A female convert from Islam, Sherin Saleh, who married shortly after her conversion, had her marriage annulled by the government under the Islamic law forbidding a Muslim woman to marry a Christian man.

In Morocco, authorities jailed Christian converts as well as a Salvadoran Baptist musician, Gilberto Orellana, who was accused of converting a Muslim to Christianity. Even in relatively tolerant Jordan, where freedom of religion is guaranteed by the Constitution, “Muslims who convert to other religions suffer discrimination both socially and on the part of the authorities, since the government does not fully recognise the legality of such conversions and considers the converts to be still Muslims, subject to the Shariah, according to which they are apostates and could have their property confiscated and many of their rights denied them.”

Robert Hussein Qambar Ali, a Kuwaiti national, converted from Islam to Christianity in the 1990s. Hussein was arrested and tried for apostasy, even though the Kuwaiti Constitution guarantees the freedom of religion and says nothing about the traditional Islamic prohibition on conversion to another faith. Mohammad Al-Jadai, one of Hussein’s prosecutors, explained: “Legislators did not regulate the question of apostasy in the Constitution because they never thought this kind of thing could happen here. The freedom of belief in the Constitution applies only to the religion of birth.”

When Hussein asked during a court hearing to see a memorandum from the prosecution, the prosecutor told the judge, “His blood is immoral! This document contains verses from the Holy Qur’an and should not be touched by this infidel!” Then he began quoting a passage from the memorandum that made abundantly clear the relationship between Kuwait’s ostensibly tolerant secular law and the Shariah: “With grief I have to say that our criminal law does not include a penalty for apostasy. The fact is that the legislature, in our humble opinion, cannot enforce a penalty for apostasy any more or less than what our Allah and his messenger have decreed. The ones who will make the decision about his apostasy are: our Book, the Sunna, the agreement of the prophets and their legislation given by Allah.” Even in places where it is not fully enforced, the Shariah retains the status of a kind of meta-law, often overriding and superseding the laws of the land.

An Islamic court condemned Hussein to die. Professor Anh Nga Longva of the University of Bergen, Norway visited Kuwait in 1997 and found passions running high over the case: “I found a surprisingly strong consensus across the liberal/islamist divide. Practically everyone agreed that Qambar’s conversion was a serious crime and as is the case with all crimes, it had to be punished. They also agreed that depriving him of all his civil rights was an adequate punishment. The only topic which gave rise to some disagreement and a subdued sense of unease within some circles was the question of the death penalty.”

Longva quotes the disquieting summation of a Kuwaiti jurist: “We always remind those who want to convert to Islam that they enter through a door but that there is no way out.” Hussein was eventually convicted of apostasy, but increasing international attention to this case enabled him to escape to the United States.

This is the true face of Shariah, the legal system on which Noah Feldman places so much hope. That hope is misplaced. Shariah should be rejected, and rejected decisively – in the name of the equality of dignity and rights of all human beings.