4. The Possessions of the Apostate

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The Hanafites: The apostate forfeits his right of disposal in regard to his possessions, until his case is cleared. If he returns to Islam, he receives his possessions back. But there is no killing unless by war. This necessitates the loss of his right to possess as well as the possessions themselves. Yet, he is invited back to Islam by force, until he repents. So we have to wait in his case. If he becomes a Muslim, the incident is nullified, and he is to be treated as if he remained a Muslim during all of that time. The entire incident is voided. If he died or was killed in a state of apostasy, or participated in war against the House of Islam, and his involvement is proven, his apostasy is upheld. So the incident is valid, and he loses his possessions. It is unanimously agreed that if he comes back to Islam, and his possessions are still there, he has the right to get them back. This is an operative rule: Possessions are lost with apostasy, but repentance restores them legally.

Abu Yusuf and Muhammad Ibn Shaiban are of the opinion that the apostate does not lose power over his fortune, because he is a taxpayer. In this case he resembles him who is to be stoned or punished; both are considered Muslims of sound mind who are subject to taxation, who can be outlawed, and whose blood can be spilled.

According to Abu Hanifa, his fortune is to be transferred to those Muslims who are legally entitled to his estate, if he dies or is killed as an apostate. All that he acquired during his apostasy is considered booty for the Muslim community and should be put in the House of Property (bait ulmal).

Abu Yusuf and Muhammad Ibn Shaiban said: In both cases, the possessions should be divided among the Muslim heirs, since the apostate's possessions belong to him in both cases; after apostasy, the possessions go to his heirs, because he is a needy taxpayer. In this case, the status of possession is based upon his condition before apostasy (that is, as a Muslim), since apostasy is the reason for death. So, as a Muslim, Muslims should be his heirs, and all that he possessed as an apostate is considered as if it were earned in Islam.

When the apostate dies or is killed, he is to be inherited by his Muslim wife during her waiting period (the time during which a widow or divorcee may not remarry) since he is considered a fugitive -- even if he was healthy when he apostatised, for apostasy is the cause of death.

The Malikites, Shafi´ites and Hanbalites: In case an apostate dies or is killed as an apostate, whatever he acquires, before or after his apostasy, is to be considered booty (and transferred to the public treasury), since he died as a blaspheming deceiver. The fortune of an apostate is like that of an unbeliever who finds himself in a state of war with Muslims (harbi) and who does not enjoy any safety provided by them; all his possessions are booty.

The Shafi´ites: They have differing viewpoints regarding an apostate being dispossessed of goods that were acquired before or during his apostasy, the most common of which are as follows:

1. To determine whether he joined a war against Islam (with view to his wife's possessions). If he dies in a state of apostasy, it is clear that he is to be dispossessed. All that he earned by trading ('ma malakahu') is booty. All that he took for himself of things found in a public area ('ma tamallakahu') remains as public property. However, if he returns to Islam, his belongings are still his, since the voiding of his works depends on his death in a state of apostasy. The same is true for his being dispossessed of his goods.
2. He loses his property as soon as he apostatises, for if he loses the protection of Islam by apostasy, how much more his property!
3. Ownership of property is not nullified by apostasy, since there is no contradiction between apostasy and property, as is the case with the original blaspheming deceiver who has never become a Muslim (al-kafer al-asli').

Consequently, the debts of the apostate are to be paid from his property -- even if these debts accumulated before the apostasy. If we say that the property of the apostate remains or is put on probation, that is clear. If it is disclaimed, nothing is better than death. The debt should have priority over the right of inheritance, as is the case with the right of booty.

5. The Status of the Heretic

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The Malikites and the Hanbalites: As soon as the condition of the heretic has been determined, he must be killed, without having the opportunity to repent. He qualifies as a heretic (al-zindiq) who poses as a Muslim and resides in the Muslim community, yet who is secretly an unbeliever or atheist. During the time of the Prophet and his Companions -- the peace of Allah be upon them all! -- such a one was called a "hypocrite" (munafiq), and his death was unavoidable, even if he repented. In such a case (if he repented) he was to be killed, not as an unbeliever, but as a penalty for his misdeed. Thus he was acknowledged to have been a Muslim; his corpse was ritually washed, wrapped and buried in an Islamic cemetery, so that the whole matter could be decided by Allah.

They said: If he comes to us as a heretic, before we have known him to be such, the matter can fall into five possible categories: His fortune belongs to those entitled to the inheritance, if he has come to us in order to repent, or if he has repented after his condition has become known, or when his heresy could be determined only after his death. If we have learned of his condition before his death, his fortune belongs to the public treasury (bait ulmaal). We will kill him."

Such is the situation with him who has insulted a prophet whose prophethood has been unanimously upheld by the community (congregation). Such a one is killed, without being called to repentance. If he should repent, his repentance will not be accepted as a means of lessening his punishment. In this instance, he will be killed as a penalty for his deed (yet, he will be recognised as a Muslim). He who has insulted a prophet cannot be excused on account of ignorance, because unbelief is not excusable, just as something forbidden (haram), owing to drunkenness, rage or grudges, is not excusable. However, an unbeliever who has insulted a prophet must not be killed when he converts to Islam, even if he should do so out of fear of being killed, since recanting nullifies all that took place previously. As for a Muslim who has renounced Islam without insulting a prophet, he is to be killed if he insults a prophet after his renunciation and then seeks to return to Islam.

According to the Shafi´ites, his repentance is acceptable, even if he has insulted the angels and (all) the prophets.

According to the Hanbalites and Malikites, the repentance of him who has insulted Allah will be accepted, whereas the repentance of him who has insulted the prophets and angels is not accepted. They explain their actions regarding such a case as follows: Allah is exalted above all imperfections, in contrast to his believing servants whose exaltation over deficiency depends on the transmission of divine messages, not on their character.

In the second case, Islam excuses all his prayer, fasting and almsgiving, if due. So he is under no obligation to perform them after returning to Islam, if he returns before the end of prayer time. This is according to the saying of Allah who is exalted: "Say to unbelievers who submit that their past will be forgiven." Islam also disclaims the rewarding of his past deeds, owing to his past deeds, according to what Allah the exalted said: "If you associate others with him, surely he will deny your deeds." He is to perform the ritual ablution, but not washing, if it is required. He has also to perform the pilgrimage again, because its time (the lifespan of man) is still due. If he said to his wife, "The moment I enter the house, you are divorced," and then entered the house after his apostasy, his marriage is null and void. As for the divorce he claimed before apostasy, if he claimed an irrevocable divorce, apostatised, and then returned to Islam, it is illegal for his wife to return to him unless she marries another man and then divorces him. Only then can she return to her former husband. Otherwise, the husband and wife should apostatise together and return to Islam together.

The Hanafites and Shafi´ites: When the heretic repents and expresses his belief in Islam, his repentance is accepted. Such a one (in any case) will be called to repentance and not killed. He is to be treated as an unbeliever who has crossed over to Islam (al-kafer al-asli).

Some of the Shafi´ites are of the opinion that a Muslim qualifies as an apostate when he finds himself to be of hidden (secret) unbelief ('in irtadda ela kufren khafiy') or when he adheres to the unbelief of the Batinites. These (the Batinites) are of the opinion that the Qur´an has a hidden, implicit meaning in opposition to its obvious, explicit one. The same is the case with him who converts to a religion that maintains that Muhammad was sent only to the Arabs; likewise with him who joins a religious society that regards the religion of Muhammad as indeed true but as not yet "visible". When he renounces an obligatory duty (fard) or that which is forbidden (haram), his belief in Islam is not genuine, and he must be killed.

This is also valid for those philosophies which claim that Allah created something, and that out of this thing he created something else that controls the world. The first is called "mind" (aql); and the second, "soul" (nafs or anima). This is an obvious heresy ('zufrun zaher)!

The same applies to naturalists who say that life and death can be traced back to nature.

He who slanders the Prophet Muhammad (or calls him a liar in relation to his message), or insults one of the prophets whose name appears in the Qur´an, is to be killed (as a severe penalty), without his repentance being taken into consideration. There are also legal scholars who say that the repentance of a heretic can be accepted in such a case, but that he must be whipped eighty times. Even though the apostasy has been annulled through his repentance, the penalty of flogging remains.

Furthermore, the Hanafites say: He who slanders the prophets must be killed by all means, in view of the fact that even he who cherishes hatred in his heart toward the Prophet becomes an apostate. His repentance is not to be accepted; it cannot save him from being put to death.

6. The Apostate Who Resides in "The House of War"

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The Hanafites: When the apostate resides in "The House of War," and this is confirmed by a judge, his slaves and concubines are to be freed, and his debts cancelled. What he has accumulated as a Muslim will be transferred to those Muslims entitled to his inheritance, because he now belongs to those who are "at war" with Muslims and who qualify as "deceased" in regard to the requirements of Islam, since all obligations come to an end, as is the case with the dead.

They said: The debts he had accumulated while being a Muslim are to be repaid from the money he earned while being a Muslim. The debts he accumulated while being an apostate are to be settled from the money he earned while being an apostate.

His existing debts should be repaid. If what he earned while being a Muslim is not enough, the debts are to be settled from what he earned in apostasy, since what is due in both cases is different. Every case is considered according to the reason of debt, so each debt is to be settled from what is earned in that case, so that the earning will balance the debt of each case. The settlement should start with what is earned in apostasy, since what is earned in Islam is still his, until the inheritor succeeds him in running this property; but this succession is based only on the termination of the right of the testator. Thus, the debt takes first priority, and then the succession. As for the property earned in apostasy, it is not considered his because the legal capacity of possession ends with apostasy. The debts are not to be settled from it unless there is no other way to repay it. Only then is the debt to be settled from what is earned in Islam (while being a Muslim), as is the case with the dhimmi, the free non-Muslim living under the protection of Islamic law; when he dies, and no inheritors exist, all his belongings are transferred to the House of Property bait ulmal. If he has any debts, they should be settled first. A third opinion is that the property earned in Islam is the legal right of the inheritors, and what is earned in apostasy is the legal right of no one. The settlement of the debt should be from what is earned in apostasy, unless insufficient. Then it should be settled from what is earned in Islam -- the debt having first priority in this case.

Abu Yusuf said: Such an apostate is considered a testator at the time of judgement, since by the sentence of judgement he is considered to be dead. The apostate woman is to be treated equally if she joins war.

The Shafi´ites: The goods of the apostate who resides in "The House of War" are to be seized (mauquf), and his debts accumulated prior to his apostasy from Islam, as well as any damages caused, are to be paid from their value. There are other legal scholars from among the Shafi´ites who say that he is not obligated in this respect, because he qualifies as unpropertied. As for the transactions undertaken before his apostasy -- such as the release of slaves, contracts and testaments -- these are valid only when he returns to Islam. Those business matters over which he is in charge, such as selling, donations and mortgages that cannot be suspended, are to be declared nonentities (liquidated). His goods are to be kept with a just man, and his concubines are to be entrusted to the care of either a trustworthy woman or a man who is allowed to be alone with them.

It is clear that his property has to remain his or be put on probation. If we say that his property is to be disclaimed, apostasy is no more severe than death, and religion is to come first -- before the rights of inheritors and the rights of booty. So if he died owing a debt, it should be settled. Then, if some of his property remains after the debt has been settled, this remaining property goes to the House of Property.

They said: The renegade Muslim is to be placed under guardianship at the moment of apostasy. It was also said: He is to be placed under guardianship after his incompetence has been legally declared by a judge. The guardianship to be placed upon him is to be like the guardianship of bankruptcy. It was also said: The case must be treated like the guardianship of illness. During his illness, the apostate is to be sponsored from his own money during the time of his recantation. After death, his property is to be disclaimed, and his financial needs are to be considered as those of the enshrouding and burial of a corpse.

What is agreed upon with respect to the belief of the Shafi´ites is that the apostate is obligated to pay what he damaged of others' property while in a state of apostasy. Even if a group of people apostatise and rebel against an imam, and he has to fight and subdue them, they have to pay for what they damage, even if they return to Islam.

The more correct belief is that the apostate is obliged to pay for his wives if he stops having sexual intercourse with them. He is also obliged to pay for the subsistence of a close relative, since these are the obligations of the apostate when his property remains.

It was also said: He is not under any obligation to pay for any expenses, since all his possessions are legally disclaimed. As for the view that claims his property is to be placed under probation and guardianship, all his deeds are to be put on probation during apostasy, if indeed they can be placed under probation, as in the case of freeing a slave and any legal transactions or wills. If he returns to Islam, all his deeds become effective, but if he dies as an apostate, all his deeds are rendered null and void, since probation does him no harm. As for dealings that cannot be placed under probation, as in the case of sales, gifts, mortgages, pledges and other related transactions that cannot be placed under probation, they are voided according to the nullification of legal contracts. In ancient times, these deeds were nullified according to the validity of contracts. If he becomes a Muslim, they are to be enforced legally; otherwise, they are voided.

According to all these beliefs, the property of the apostate is to be delivered to a trustworthy woman or to a man legally eligible, since this property has something to do with the rights of Muslims.

The Malikites: Apostasy does not invalidate a contract. When one partner of a contract renounces Islam, the contract remains valid for the other partner. The matter is different, however, with marriage contracts. For instance, apostasy does not nullify the capacity of a second husband to make his wife eligible to remarry her first husband who had irrevocably divorced her earlier. If the second husband of an irrevocably divorced woman apostatises, his marriage to her is still valid, making her eligible to remarry her former husband who had irrevocably divorced her.

According to the Sharia, this is the only way that an irrevocably divorced woman can return to her former husband: by marrying another man and having sexual intercourse with him, and then having him divorce her. Only then can she return to her former husband as his wife; otherwise, she cannot return to him as his wife.

The case is not the same when an irrevocably divorced woman apostatises after marrying her second husband and having sexual intercourse with him. She is still not eligible to return to her former husband, since her apostasy had already nullified the sexual intercourse of her second marriage. She must have sexual intercourse with her second husband in order to be legally eligible to return to the first husband as his wife.

The unconditional liberation of a slave is not nullified by apostasy, whether the apostate returns to Islam or joins the blasphemous camp, ('dar al-kufr'). Also, the divorce is effective, not being nullified by the apostasy. As for donation and endowment, they are valid whether he returns to Islam or dies as a Muslim, if they occurred prior to the apostasy. However, if the donation and endowment occurred during apostasy, and the apostate dies in a state of apostasy or joined a blasphemous camp, they are invalid. We have to wait for him, whether he returns to Islam or not, and whether the judge will judge with nullification or not.

They said: The matter of an unbeliever abandoning his religion, in order to cross over to other unbelievers, such as a Christian who converts to Judaism or Manichaeism, does not concern us. An unbeliever who converts to Islam and then renounces the faith is excused when he says to the judge (who wants him killed) that he converted to Islam out of fear for his soul or for the sake of his property. If his excuse proves to be true, he is to be released; but if it proves to be a lie, he is to be treated as an apostate. If he returns to Islam after recanting, he is to be set free; but if he does not, he is to be killed as an apostate.

Whoever pronounces both articles of faith, yet fails to hold fast to the pillars of Islam, is to be beaten flogged, and given another chance, according to the decision of the judge. If he returns to the true path, his case is not treated like that of the apostate. But this is in case he does not live among us, knowing that we are committed to prayer, fasting and paying alms. Otherwise, he is an apostate, since he has already lived among us and learned the regulations and laws of our religion. He is to be punished. If he denies the statutes of Islam, then he is to be judged as an apostate.

A magician who has bewitched a Muslim, yet without causing him harm, is to be flogged. If he has harmed a Muslim, he is to be regarded as one who committed a breach of contract, and the imam is to decide on his death or enslavement, in case he does not return to Islam. If he, through magic, has harmed one of the People of the Book, he is to be killed. Whoever insults one of the prophets whose prophethood is not certain, such as al-Khidr (a mythical Arab figure) or Luqman (a legendary personage from Arabic paganism) or Mariam -- except that he suggests fornication -- or a family member of Muhammad, he is to be beaten and flogged with exceptional severity if it is known that he belongs to the clan of Muhammad. If he does not belong to the clan of Muhammad, but claims to, either clearly or by way of intimation, such as by wearing a green turban, then he will not be beaten or flogged with exceptional severity, for the Prophet said: "May Allah curse him who joins our clan without proper kinship and leaves our clan without reason."

Malek, the imam -- may Allah be pleased with him -- said:

"He who allegedly claims nobility is to be beaten excessively and imprisoned for a long duration, until his repentance becomes clearly evident to us. His behaviour is a crime against the Prophet -- the peace of Allah be upon him."

They said: He who curses one of the Friends of the Prophet -- peace be upon him -- should be imprisoned but not condemned to death. Also, he who denies some of the Friends of the Prophet, including the four successors -- may Allah be pleased with them -- will not be considered blasphemous but is to be disciplined. He who denies all the Friends of the Prophet is to be unanimously considered a blasphemous apostate, since he has denied one of the well-established facts of religion and attributed the lie to Allah and his Prophet. If one of his people accuses either him or a group not eligible to witness of cursing a prophet whose reliability is unanimously upheld, he is to be only beaten. However, if he objects to Allah, he is surely an apostate.

go to CHAPTER 7 - The Activities of the Apostate

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