Let us imagine for a minute, my dear reader, that a woman arrives before a judge in whatever jurisdiction you like, and alleges that her husband has been abusing her and for this reason, she seeks a dissolution of her marriage. We will also presume that in this jurisdiction, there is no crime against wife beating unless it’s really bad wife beating. (No such place, you say? Ah, but wait for my next article). The judge listens very carefully to the complaint, let us suppose, and then upon the wife finishing, denies her petition. Explaining his reasoning, our judge informs the woman that if in fact her husband did this, then it surely should be a crime. And yet, looking up and down the statute book, he cannot find such a crime, and this he finds outrageous. Yet he cannot exactly punish a man for something that is not a crime and remain in keeping with the broader principle of nulla poena sine legem (no punishment without a law), so he will merely declare the actual beating not to have occurred, rather than render it grounds for a marital dissolution. Better to assume the whole thing never happened than that the impotent legal system is not imprisoning the people it should be.
Do you scratch your head in confusion, my dear reader? Whatever would possess, you might think, a judge who thinks that a particular action should be a crime into reacting to the fact that it is not by pretending it hasn’t occurred? What sort of administration of justice is that? I don’t know myself, though what I do know is that it is exactly how apostasy is treated in Iraq, and more publicly known, has been in Malaysia as well. Courts, or some courts, in both countries will take a Muslim who says they want to be a Christian and, rather than attempt to actually apply the traditional Islamic hadd to the apostate and kill her if she won’t repent, and rather than reinterpret the sacred texts to come to a different and more humane and progressive conclusion about what apostasy actually was in the Qur’an and according to the Prophet (for that, see Kamali, see Sachedina, see Bassiouni, etc. etc. etc. etc.), they merely insist that conversion away from Islam is in fact not permitted in Islam and therefore they won’t recognize the conversion. So their identity cards stay Muslim, they bequeath property based on Islam’s mandatory rules, if a woman they can’t marry a Christian man, and so forth.
Yet of course this makes no sense at all. It is one thing to say apostasy is a crime and seek to carry out the punishment of death. That’s horrible, but it’s logically coherent. It’s another thing to say apostasy was never meant to be a crime when it’s a change of conscience as opposed to a change in loyalty on a battlefield, the liberal view, which is normatively quite appealing and also logically coherent. (We won’t argue the plausibility of these positions here).
But to say as courts in Iraq and Malaysia have done, that it is a crime, but because the state won’t actually legislate it, we simply will pretend that this person standing in front of me shouting they are not Muslim, they are Christian, and they deny the Prophethood of our Prophet Muhammad, to just plug our ears and pretend they aren’t actually committing the so called “crime”? It honestly, truly, absolutely makes no sense at all. You’d think what you would do is recognize the conversion, change the identity card and ask the state to get on with the business of criminalizing apostasy. Or maybe you’d revolt against an apostate state, I don’t know, it’s not my view so not really my problem. But you sure as heck wouldn’t just deny the crime is taking place as a means to deal with its taking place in front of you.
This isn’t really much more than sticking a metaphorical middle finger at the putative convert. I can’t kill you for this, though I’d like to, the thinking would run, so I’ll just ruin your life. Whatever that is, it’s not any sort of application of any sort of sharia I can recognize.