The Penalties for Apostasy in Islam

‘Abdurrahmani’l-Djaziri

According to the Four Schools of Islamic Law

From ‘Abdurrahmani’l-Djaziri’s Kitabul’l-fiqh ‘ala’l-madhahibi’l-’arba’a (Vol. 5, pp. 422-440).

From here.

Περίληψη στα ελληνικά: Άρθρο για την τιμωρία της αποστασίας στο Ισλάμ (στον ισλαμικό νόμο - Σαρία), σύμφωνα με τις 4 σχολές ισλαμικής νομολογίας. Πρόκειται για τις σελίδες 422-440 του 5ου τόμου του Kitabul’l-fiqh ‘ala’l-madhahibi’l-’arba’a του ‘Abdurrahmani’l-Djaziri (σε αγγλική μετάφραση). Η πρώτη (αραβική) έκδοση έγινε στο Κάιρο το 1934 και η 8η το 1987... Είναι απόσπασμα εκτενέστερου άρθρου και το λαμβάνουμε από εδώ. 
Οι νομοδιδάσκαλοι του Ισλάμ συμφωνούν - και τεκμηριώνουν με διδασκαλίες και πράξεις του Μωάμεθ, που θεωρούνται αλάνθαστες - ότι ο αποστάτης (ο μουσουλμάνος που αρνείται το Ισλάμ) πρέπει να λαμβάνει τρεις μέρες προθεσμία να επιστρέψει στο Ισλάμ και, αν τελικά αρνηθεί, να θανατώνεται, είτε είναι άντρας είτε γυναίκα.
Για την περίπτωση γυναίκας, μια μουσουλμανική σχολή (Hanafites) προτείνει να μη θανατώνεται, επειδή δε μπορεί να πολεμήσει και συνεπώς δεν αποτελεί απειλή (κατά τη σχολή αυτή, ο αποστάτης θανατώνεται επειδή μετατρέπεται σε εχθρό), αλλά να φυλακίζεται και να μαστιγώνεται καθημερινά με 39 βουρδουλιές!
Δείτε, αν θέλετε, & γενικότερες ενότητές μας για τους νεομάρτυρες και το Ισλάμ.

Contents:
 
1.When Does a Muslim Become an Apostate?
2.Calling the Apostate to Repentance
3.The Case of the Female Apostate
4.The Possessions of the Apostate
5.The Status of the Heretic
6.The Apostate Who Resides in the House of War
7.The Activities of the Apostate
8.The Apostasy of the Youth and the Insane
9.The Case of the Lad Who Reaches Maturity As an Apostate
10.The Apostasy and Faith of the Drunkard
11.The Acceptance of the Witness for the Prosecution in the Matter of Apostasy
12.The Manner of Repentance
13.Individual Rulings Concerning the Apostate
14.The Good Deeds of the Apostate

[...]

2. Calling the Apostate to Repentance

The Hanafites: When the Muslim falls away from Islam — may Allah forbid it! — he is first asked to return. If he has doubts, he is to express them; one can then clear up his doubts, for it may be that he truly has questions with regard to the faith — questions in need of explanation. By this it is possible to deal with his evil deed (sharr) through the best of two possibilities: death or the acceptance of Islam. However, it remains desirable to offer him the acceptance of Islam again, although this is not obligatory, because the message had already been offered him once.

If he needs time to reconsider, it is desirable that the judge allow him a three-day extension, during which he is to remain in custody. If he accepts Islam thereafter, it is good; if not, he is to be killed, for Allah says to “kill those who believe in many gods” (Sura al-Tawba 9:5), without fixing a deadline. The Prophet also said, “Kill him who changes his religion,” without mentioning a delay, because the apostate is surely a hostile unbeliever and no asylum seeker (musta’min) who has asked for protection; furthermore, he is no dhimmi (a non-Muslim under Islamic rule), for no poll tax is demanded of him. Therefore, he should be killed without reservation.

The Hanafites are of the opinion that it does not matter whether the apostate is a freeman or a slave.

The Shafi´ites: If a Muslim becomes apostate — Allah forbid! — the imam should grant him three days’ grace; he is not to be killed before this period expires, for the apostasy of a Muslim from his faith often results from his confusion. Therefore a grace period is necessary, so that he can reflect, and that the truth can become clear to him again. We, the Shafi´ites, have determined that this time should consist of three days, whether he asks for it or not.

It has been told about our master, Umar b. al-Khattab — may Allah be pleased with him — that a man was sent to him by Abu Mosa al-Ashaari. Umar asked him: “Do you have any good news?”; the man said, “Yes, a man apostatised from Islam, so we killed him.” Umar said: “Did you first take him into custody for three days, giving him one loaf per day, so that he may repent? O Allah — you are a witness — I was not there, neither did I give any orders, nor did I concede to that action.” This story was mentioned by Malek the imam in his book, Al-Muwattu, to the effect that Umar disapproved of what they did. Thus, one can conclude from this event that an apostate must be given a three-day time limit before he is put to death.

If the apostate repents, or utters the two main articles of faith (al-shahadatain), or confesses faith in the oneness of Allah (monotheism), he will be released. But if he does not repent, he is to be killed by the sword immediately. This punishment cannot be evaded, because apostasy is the most atrocious and severe form of blasphemy, and it deserves the cruellest judgement, which invalidates all of a Muslim’s previous deeds. Allah says: “And for those among you who allow themselves to be led astray from their religion, and who die as unbelievers, their works are invalid now and in eternity” (Sura al-Baqara 2:217). If the apostate returns to Islam, he need not repeat the pilgrimage which had been performed before the apostasy. This is unlike the Hanafites who said: If the apostate repents, he must repeat the pilgrimage, because his apostasy has nullified it.

The Malikites: The imam should grant the apostate three days and nights — beginning with the day on which his apostasy was committed, and not with the day of his unbelief or the day upon which the accusation was brought against him. The three days of confinement are to follow in succession, and the day on which the apostasy was proven should not be considered as part of the time limit, if it was preceded by dawn. During his confinement, he is to be given food and drink, which are to be paid out of his assets, while his wife and children are not being cared for by his assets. If he has no assets, he is to be cared for by the public treasury or House of Property (bait ulmal), whether he promises to repent or not. He is not to be beaten in prison, even if he persists in his apostasy. He is surely to be given many chances to repent within this time-limit, in order to prevent bloodshed or punishment resulting from doubts. This should clear up his doubts and give him time to reconsider, so that he may change his mind and repent. If the judge decides on his death before the end of this grace period, his decision is legally binding, because he has ruled on a disputed issue. If he repents after three days, he is to be released; but if he does not, he is to be killed on the third day, at sunset. His corpse is to be neither washed nor embalmed. He is to be buried neither in the cemeteries of the Muslims nor of the unbelievers (kuffar), for he is not one of them, having once been a Muslim. In fact, his body is to be thrown upon the ground as a public example.

The Hanbalites: There are two opinions on this issue. Some believe that the apostate should be given a period for repentance consisting of three days, while others are of the opinion that he is to be granted no time for reconsideration but should only be offered Islam. If he accepts the offer, he is to be set free; if not, he is to be put to death immediately.

3. The Case of the Female Apostate

The Shafi´ites, Hanbalites and Malikites say: The verdict for the female apostate is the same as for the male. She must be called on to return to Islam for three days, prior to her death, for an evil-doer may have confused her understanding; thus the possibility exists for her being released from her confusion. Offering the apostate a time limit for repentance has been approved. According to a tradition related by Daruqutni, quoting from Djabir b. Abdillah, the Prophet offered Islam to a woman named Ummu Rumman who had previously apostatised. Furthermore, the Prophet said, “It is good if she repents. If she does not, she is to be killed, since by apostasy she should be treated like a woman who has fought against Muslims, being taken captive in a holy war (jihad); thus it is lawful to kill her with the sword. Moreover, her guilt is far more abominable than women who are taken captive in a holy war, since she has become a Muslim.”
 
The Prophet — the blessing and peace of Allah be upon him — said, “He who changes his religion must be killed”; this holds true both for men and women. The apostasy of a man calls for putting him to death. It is unanimously agreed upon that apostasy is a horrible crime deserving a horrible punishment. The apostasy of a woman is no less horrible. Therefore, it too deserves a corresponding punishment: death.

The Malikites: The death of a nursing woman must be postponed until the time for nursing her infant has been completed, if either no wetnurse can be found or if the babe cannot accept another woman in place of its mother. The death of a married woman and of a divorced woman who was given the option of returning (talaqu radj’a) must also be postponed. As for the divorced woman who refuses to return, she must be killed without hesitation, unless she is menstruating (even if she should menstruate only every five years). If she has no period, owing to a weakness or questionable menopause, she is to be left in peace for three months, in case she is thought to be pregnant. If she is not thought to be pregnant, she is to be killed immediately after being called to repent. If unmarried, she is not to be acquitted.

The Hanafites: The apostate woman is not to be killed; but if she kills someone, she is not to be taken into custody, be she a free woman or a slave, for the Prophet has forbidden that women should be killed. It is also better to postpone punishment to the afterlife, since hastening it violates the concept of tribulation (mabada’ al-Ibtila’). The only acceptable exception to this rule is for war (al-Harab). However, women, unlike men, are no real danger in war time, so the apostate woman is to be treated like one who has never been a Muslim. Every punishment has to be stipulated, having some benefit for us in this world; that is, the punishment for slander, drinking, adultery, theft. Thus, punishment has been legalised to protect people, honour, minds, relationships and money. The death sentence upon an apostate should be with the aim of preventing evil, not as a retribution for apostasy, since Allah will repay an apostate with a greater retribution. So, punishment is confined to those who can fight (that is, men). That is why the Prophet — the blessing of Allah be upon him — forbid putting women to death, since they are not involved in battles. This is according to tradition. (According to one tradition, the Prophet allowed an apostate woman to be killed, not only for her apostasy but also for her being a witch and a poet who mocked him and incited her thirty sons against him.)

The apostate woman is to be thrown in prison until she returns to Islam or dies, being whipped thirty-nine times every day — which is nothing less than death; uninterrupted whipping inevitably leads to death. She must be imprisoned, because she, after being a Muslim, did not give Allah the rights due him; so she must be obliged to pay back these rights by being imprisoned.

According to a tradition in al-djamius’s-sagir, the woman, whether free or slave, must be forced to embrace Islam. A concubine is forced by her master, because two rights are being dealt with: the right of Allah and the right of the master. The free woman who apostatises is not to be enslaved, as long as she remains in the House of Islam. But she is to be beaten excessively every day, in order to force her to return to Islam and regain her heritage; otherwise, her Muslim husband will inherit all her belongings.

Abu Yusuf, quoting from Abi Hanifa, quoting from Aasem Ibn Abi al-Gonood, quoting from Abi Razeen, quoting from Ibn Abbas — the peace of Allah be upon them — said: “Do not kill women if they apostatise from Islam. They must be imprisoned, offered the chance to return to the faith, and then forced to do so.”

It is quoted from Ibn Umar that a woman was killed during one of the Prophet’s conquests. Therefore, the Prophet of Allah — peace be upon him — forbid the killing of women and children. Muhammad narrated: “It came to our knowledge that Ibn Abbas said, ‘If a woman apostatises from Islam, she must be imprisoned.’” Such an opinion is not an interpretative one.

It is said, quoted from Moaz Ibn Gabal — peace be upon him — that the Prophet of Allah — peace and blessings be upon him — said to him when he was resurrected to the right: “Any man who apostatises from Islam is to be given the chance to return to the faith. If he repents, accept his repentance. But if he does not, cut off his head. Any woman who apostatises from Islam is to be offered the chance to return. If she repents, accept her repentance. If she does not repent, give her a second chance, etc.” (Hadith).

It is quoted from Imam Ali that Daruqutni — peace be upon him — said in his Hadith collection that an apostate woman is to be given a chance to repent. She should not be put to death.

There is evidence that the Hanifites said that the apostate woman should not be killed but should be only imprisoned and beaten.

More here.

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