Abstract

The jurists of classical Islamic Law defined the interior forum as a limit to the religious validity of the sentences of Muslim judges , because these have neither access to God's knowledge nor to the individual believer’s conscience and motivations. They can base their decisions solely on exterior appearances and can, therefore, neither be sure that their judgments correspond to the facts nor to the intentions and memories of the individuals concerned. This holds especially true for questions of belief and unbelief. From the eighth to the nineteenth century, the norms of Islamic law were the result of learned debates among independent jurists and their schools of law. In the nineteenth and twentieth centuries, it was integrated into the codes enacted by the competent institutions of the national states and lost its normative authority in most spheres of the modern state law. It remained dominant only in personal statute law, i.e. the rules concerning marriage and divorce, family and succession. From the early seventies of the twentieth century, opposition against the neglect of religious norms in modern state law was centered on the demand for the “codification of Islamic law” . Its leaders were jurists trained in modern law faculties, who wanted to insert the norms of classical Islamic Law into the codes of the national state with which they are familiar. The ethical debates of classical Islamic law, obviously, did not lend themselves easily to such an approach.The jurists movement for the codification of Islamic law gained in momentum during the eighties when, in a number of states, it succeeded in assuring for the classical apostasy rules a place in the modern criminal codes. In other states, such as Egypt, the highest courts opened the way for apostasy trials. The analysis of one apostasy judgment of the highest Egyptian court shows that the court understands belief and apostasy as objective facts that can be separated from the person who professes or denies them. It is on this question that my lecture focuses. The court effectively claims the role of the highest instance in questions of belief and unbelief. Belief and apostasy thus become depersonalized objective facts without any relation to the intentions of the individuals concerned. The court’s sentence does not refer to the believer’s own interior forum : the concept seems to be irrelevant to the judges. Their definition of apostasy serves to control the ideas that can legitimately be discussed in the public sphere. It denies bold reinterpretations of Islam, but also a number of political persuasions and theories, the right of access to the public space and assigns them the private sphere as their legitimate abode. A new concept of private and public is thus developed in the detailed reasoning by which the court justifies its judgment.There is, to my understanding, nothing in the religion of Islam that renders such a stance necessary. Other courts, in Egypt, develop other ideas of the principles of Islamic normativity and in other Arab states go so far as to develop a concept of privacy that would forbid the debates discussed in this lecture. It seems important to underline that the use of classical elements in the court’s judgment does not conceal the fact that the ethical criteria of classical Muslim law find little place in this jurisdiction that represents a special version of modern legal positivism