The Penalties for Apostasy in Islam 2/2

7. The Activities of the Apostate

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The Hanafites: The activities of the apostate are dealt with in different categories:

Valid through consensus: having children (his children qualify as having been born in wedlock); divorce, because it no longer demands the right of disposal, even when the separation occurred on account of the apostasy.
Invalid through consensus: marriage and blood sacrifice, because both must belong to the religion -- whereas the apostate does not have a religion, and his crossing over to a religion is not acceptable, because he is to be killed, because of apostasy.
Under probation by consensus: negotiation, when an apostate negotiates with a Muslim. The negotiation is under probation. When the apostate returns to Islam, a contract is valid. However, if he dies or is killed, or joins a blasphemous camp at war with Muslims, the negotiation becomes invalid, because negotiations demand equality, whereas a Muslim and an apostate are not considered equal.
Contested: buying and selling, the freeing of slaves, mortgaging, and the handling of a Muslim's possessions in the case of apostasy. Abu Hanifa -- the mercy of Allah be upon him -- said:

"In the case of apostasy all these dealings are to be placed under probation. If he returns to Islam, his contracts are to become operative, but if he dies in his apostasy, or is killed, or resides in 'The House of War,' they are nullified, because he now (in apostasy) qualifies as a frivolous or crazy (mutahauwir) warrior (harbi) -- 'he who is at war with Muslims.' His dealings are to be rendered null and void, according to his legal position. Thus, the warring enemy and the apostate are to be treated the same. The apostate deserves the death sentence. There is no reason for him to enjoy the protection of Islam any longer. Consequently, he is incompetent, unlike the adulterer and murderer who, although they deserve death because of a crime, still enjoy the protection of Islam, since the reason for protection still exists: Islam. Thus, the adulterer and murderer do not lose their property. He is also unlike the apostate woman who is not a warring enemy and who is therefore not killed after apostasy. As for the apostate man, he is to lose all his property, as was already mentioned."

According to Abu Yusuf and Muhammad Ibn Shaiban, the transactions of the apostate are valid, and his contracts are legally binding, because legitimacy depends on legal capability, and validity depends on proprietary right. Because he can be spoken to, he is legally capable. As far as his right to property is concerned, it is valid until his death and does not stop on account of his apostasy, since he is considered a needy taxpayer who cannot pay the tax, unless out of what he possesses. So his possessions remain until he is killed. For this reason, his son inherits from him after his death.

They said: If the apostate returns to Islam as a Muslim, after having joined a faction warring against Islam, he has the right to receive back from his heirs whatever he can find of his former possessions, since the heir succeeds him in using the property, by virtue of his death effected when he joined the faction warring against Islam. When he returns as a Muslim, he needs his property returned, so he is to be given priority over his heir. But if the heir has removed him from his possessions, legally through injustice, it cannot be abrogated (unlike the mothers of his children and dealers, since judgement has become enforced by virtue of an operative proof). If the apostate returns to Islam before the sentence of a judge, he is to be treated as if he were still a Muslim who had never apostatised; all his property is to remain as before, and all the debts are still due and can be settled.

8. The Apostasy of the Youth and the Insane

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The Hanafites: The apostasy of a lad who is mentally sound is a "competent apostasy" (irtidadun namin), and the regulations of the Sharia, with regard to the apostate, also apply to him: His marriage is annulled, he loses his rights of inheritance, and he is to be forced to embrace Islam, but is not to be killed. If, as an apostate, he matures, he is to be imprisoned, as in the case of the female apostate.

A lad's faith in Islam, if he is mentally sound, is valid, because Ali b. Abi Talib became a Muslim when he was only five years of age, and the Prophet himself confirmed his being a Muslim. A further proof for this is the fact that the Prophet offered Ibn Sayyed the religion of Islam while a youth.

Some said it would be an abomination for one to learn the Qur´an and its teachings, pronounce both articles of faith, perform the ritual prayer, and yet not be at a point where one could be called a Muslim.

Divine truths cannot be altered; as far as eternal happiness and salvation (nadjat) beyond the grave are concerned, these are privileges given to the Muslim. Therefore, in this case, a fundamental verdict (al-hukmu'l-asli) is at issue. Everything else is added to this base. Therefore, it is not important whether the lad or his faith suffered harm, for his obligatory prayer and fasting will be accepted and rewarded by Allah. Apostasy is indeed a fact, and a fact cannot be denied, but since it is not appropriate to pardon his apostasy, he will be forced to embrace Islam, but will not be killed, based on his own interest. Death is a penalty (uquba) and the penalties are lifted in the case of youths, as a mercy.

Such is the case in the matter of a mentally sound lad. As far as the mentally ill youth is concerned, his apostasy is not valid, for he does not have discretion. The matter is similar with his faith in Islam, which is not accepted.

This is also true for the insane whose apostasy is not accepted through consensus, just as his faith in Islam would carry no weight, since he is not a taxpayer; neither is he under any obligation according to the Noble Tradition (al-hadith al-sharif).

Abu Yusuf says the apostasy of a sensible lad is no apostasy, and his faith in Islam is accepted.

The Shafi´ites: Neither the apostasy of a mentally sound lad nor his faith in Islam is valid, because, with regard to Islam, he follows his parents. This cannot be regarded as foundational. His being a Muslim carries with it certain obligations which (in case he does not fulfil them) could cause him harm and for which he is not legally capable, since he is not a taxpayer and does not have the power of free choice.

The case is the same with the insane whose apostasy is not valid, because he does not qualify as being of sound mind, nor is he a taxpayer. One cannot pay serious attention to the apostasy or the faith of the lad and the insane.

The apostasy of him who was forced (mukrah) to accept Islam is also not valid. But if he accepted Islam with full assurance and faith prior to his apostasy, he qualifies as an apostate and is to be killed.

As for the Muslim who, without being previously called to repentance, becomes an apostate and, thereafter, loses his mind, he is not to be killed, because he may return to his senses and convert to Islam. If he is killed while being insane, his murderer is not guilty, yet, according to the opinion of the judge, he may be punished. In the Holy Qur´an (Sura al-Nahl 16:106-108) Allah says: "Whoso disbelieves in Allah, after he has believed -- excepting him who has been compelled, and his heart is still at rest in his belief -- but whosoever's breast is expanded in unbelief, upon them shall rest anger from Allah, and there awaits them a mighty chastisement; that, because they have preferred the present life over the world to come...."

9. The Case of the Lad Who Reaches Maturity as an Apostate

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The Hanafites: The apostate must not be killed in the following four cases:

1. If the lad, who became a Muslim like his parents, reaches maturity as an apostate, he must not be killed. He is to be imprisoned until he repents, since his faith in Islam occurred while he was dependent on others.

This is also the opinion of the Hanbalites who say that he is not to be killed. He is to be forced to return to Islam by being arrested and beaten.

According to the Shafi´ites and Malikites, the mature lad qualifies as an apostate even when he follows his parents; he will be called to repentance from his apostasy. If he repents and returns to Islam, his decision will be accepted, but if he does not, he is to be killed like every other apostate.

2. If the lad became a Muslim as a child and then later apostatised, he is not to be killed, because the sincerity of his faith in Islam is disputed, owing to his youth. This is also the opinion of the Shafi´ites. If someone kills him prior to his conversion, he is not guilty. If a Muslim relative dies after the lad's apostasy, he cannot inherit his estate.

The Malikites and Hanbalites say that the lad who apostatised prior to reaching maturity must be killed, if he reaches maturity as an apostate. All the stipulations of an apostate are to be applied to him.

3. If the lad apostatises prior to reaching maturity, his apostasy is not accepted. He is to be imprisoned and beaten until he repents, because Islam is more beneficial for him. For this reason, he is to be beaten severely until he converts and repents.

4. The apostate who is forced to return to Islam is not to be killed, because the demands on his being a Muslim were met, according to outward appearance. The Shafi´ites are likewise of this opinion: Since he has no inner conviction, and was forced to accept Islam, a punishment is out of the question.

The four Islamic theologians agreed: If the parents fall into apostasy -- may Allah forbid it! -- and the lad, like them, also apostatises, and they all reside in "The House of War," which has been confirmed by a judge, the apostasy of the lad is legitimate, and he is to be categorised as an unbeliever. If he should return to Islam, this is to be accepted from him. He cannot then inherit from his unbelieving parents, but he can inherit from his Muslim relatives who die after his turning to Islam. His marriage to a polytheist is not valid, but he is allowed to marry a Muslim woman. He is not permitted to consume either wine or pork.

If the man and the woman apostatise -- may Allah forbid it! -- and reside in "The House of War," and the woman becomes pregnant in "The House of War," and delivers a child while in this condition, and grandchildren are born to her from this child, she and her husband (the grandparents) are considered as "booty" -- because apostates are enslaved. The children are to be forced to accept Islam, whereas the grandchildren are not, because they followed their father, not their grandfather. The Prophet -- the blessing and peace of Allah be upon him -- said: "Every baby is born with a natural leaning toward religion. It is the parents that make him a Christian or a Jew" (Hadith).

10. The Apostasy and Faith of the Drunkard

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The Hanafites, Malikites and, according to their traditions, the Hanbalites: The drunkard who is not in full possession of his faculties, and who has lost his power of distinction and reason, is like the insane from whom neither apostasy nor faith in Islam is taken into consideration.

According to a teaching of the Hanafites, the apostasy of a drunkard is valid, and he is not to be excused if he has, willingly and without force, drunk anything forbidden.

The Shafi´ites say that the apostasy of a drunkard who, owing to his condition, has committed punishable infringements against the law, is valid, just as his other deeds, such as divorce, are punishable. As far as the validity of the call to repentance is concerned, which was offered him during his drunkenness, the majority are of the opinion that it is indeed valid, just as his apostasy was valid; yet it is desirable to postpone it until he returns to his senses. However, the apostasy of the drunkard who committed no lapse, despite his state of intoxication (that is, if he became drunk by compulsion), is not valid. This also applies to his divorce. This school of thought tends to accept the validity of the alcoholic's faith, even if he apostatises with a sober mind and then returns to Islam in a state of drunkenness. His statements are to be considered as if he were sober. The acknowledgement of his Islam in a state of drunkenness needs another confirmation after he has regained sobriety. When he recovers, he is to be offered Islam again. If he identifies with it, he is considered a Muslim from the moment of identification. But if he upholds his apostasy, he is considered an apostate from that moment. If he does not repent, he is to be killed immediately.

11. The Acceptance of the Witness for the Prosecution in the Matter of Apostasy

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The Shafi´ites: A witness for the prosecution in the matter of apostasy is accepted in any case. This is ratified without a detailed explanation, because the witness, on account of the severity of apostasy, would only burden the individual concerned. Afterward, the judge is to say to him, "Pronounce the two articles of faith!" There is no need to ask about the reason. If he refuses, this is evidence of apostasy, and one does not need to inquire about the reason behind the apostasy.

Others are of the opinion that the witness must be questioned thoroughly, and that a detailed explanation must be demanded from him, because the schools of thought are different regarding the charge of apostasy, and the verdict on it is very weighty. Therefore, one must proceed with caution.

The Malikites say that the witness can be accepted only after a detailed explanation has been given, because the repentance of an apostate is not valid.

The Hanafites are of the opinion that the charge of apostasy against a Muslim can only be accepted from two "eligible (adl) witnesses." The judge should ask him about the reason behind his apostasy, for it could be that he may have said something which indeed was no heresy, yet which was understood to be. If he rejects the accusation, this qualifies as repentance and a return to Islam.

12. The Manner of Repentance

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The Hanafites: The apostate must deny all other religions except Islam and say: "I have repented and returned to the religion of Islam. I am freed from every religion except Islam!" It is desirable (mustahabb) for him to express his faith on the Day of Resurrection (ba'th) and the Resurrection (nushur). He must say so, since he has no religion. If he only confirms the religion he has just adopted -- Islam -- that is enough to reach the goal.

Al-Tahawi reports: Abu Yusuf was asked how the male apostate becomes a Muslim again. He said: "He must say that there is no god but Allah and that Muhammad is his Messenger. He confesses Islam, which Muhammad brought from Allah, and renounces the religion he had previously embraced. If he pronounces both articles of faith and says that he is freed from the religion to which he had converted, this qualifies as repentance."

As for the conversion of a Christian to Islam, he is to pronounce both articles of faith and renounce Christianity. The same is true for Jews and adherents of other religions. As for the non-Muslims living among us, they cannot become Muslims solely by pronouncing both articles of faith, because they, even if they pronounce both articles of faith, may still claim that Islam is only for the Arabs (in order to secretly protect their religion). But if an unbeliever residing in "The House of War" is attacked by a Muslim and says, "I confess that Muhammad is the Messenger of Allah," or "I have joined the religion of Islam or the religion of Muhammad," this is a proof of his being a Muslim. What is then the case if he would add to that the two articles of faith! One then decides whether he is really a Muslim and then lifts the death penalty. If he thereafter apostatises again, we will kill him. But when the Muslim apostatises twice, we will accept his repentance. This is true also if he apostatises three or four times. He can request the postponement of the penalty from the imam each time; but after the fourth time, the imam will grant him no further postponement of penalty. If he immediately returns to Islam again, it is good; if not, he is to be killed.

Al-Karkhi says in his abridged edition:

If he repents, after he has apostatised four times, he is to be severely beaten and then imprisoned. The judge is not allowed to release him until his humiliation through repentance becomes visible and until his condition as a person of upright heart becomes apparent. When he has done this, he is to be released. If he again apostatises, this same procedure is repeated until he again returns to Islam, for the following Quranic verse is applicable in all cases: "But when they repent, perform the prayer, and give alms, then let them go their way! Allah is merciful and ready to forgive" (Sura al-Tawba 9:5).

According to a tradition from Ibn Umar and Ali, the repentance of him who repeatedly apostatises is not accepted, just as it is the case with the heretic. His death is obligatory.

The Malikites and Hanbalites: The repentance of the unbeliever who apostatises (the unbeliever who apostatises after his conversion to Islam) is not accepted if repeated, and he must be killed, based on the following Quranic verse: "Those who believe, and then disbelieve, and then believe, and then disbelieve, and then increase in unbelief -- Allah is not likely to forgive them, neither to guide them on any way" (Sura al-Nisa´ 4:137). If someone kills him prior to his call to repentance, he is neither punished nor required to pay blood money.

The Shafi´ites: The repentance of a heretic or an apostate is accepted, if he requests it and returns to Islam, even if he continually apostatises and returns to Islam. He is to be killed only when he refuses to accept Islam.

The Hanafites: As for the heretic's repentance being accepted, there are two schools of thought (riwayatan: "two traditions"). According to one, the repentance is not accepted; this is also the opinion of the scholar Malik (Ibn Anas) and Ahmad (Ibn Hanbal). According to the other school of thought, the repentance is valid if the heretic returns to Islam, as Shafi'i said.

13. Individual Rulings Concerning the Apostate

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The Hanafites: A country becomes apostate, the country qualifies as a "House of War" when three conditions of apostasy have arisen:

When the laws of unbelief become visible.
When there are no more Muslims or dhimmis ("Jews and Christians" enjoying the guarantee of protection by the Islamic state).
When the region immediately borders a "House of War".

Abu Bakr al-Seddik -- may Allah be pleased with him -- was the first to fight against the apostates because they abstained from paying taxes. They said: "We pay tax only to him whose prayer is a source of security to us" (meaning the Prophet -- Allah's blessing and peace be upon him). So their city became a warring place.

The Malikites, Shafi´ites and Hanbalites say: The laws of unbelief becoming visible in a region make it a "House of War".

The Hanafites and Malikites say: When the inhabitants of a region apostatise, we can neither enslave their descendants nor treat them as booty. If they have reached maturity, they are to be forced to accept Islam. If they do not convert to Islam, they are to be imprisoned, and the judge will threaten them with beating in order to compel them to accept Islam.

According to their most widespread interpretation, the Shafi´ites are of the opinion that the descendants of the apostates should not be enslaved; whereas the others say that not only can their descendants be enslaved, but also that their descendants' descendants can be enslaved. The Hanbalites are also of this opinion, "for the descendants follow their fathers in unbelief."

Al-Bukhari, quoting Ibn Abbas, related the following tradition, after hearing that Ali Ibn Abi Talib burned a great many people: "If I were in your place, I would not have burned them, because the Prophet -- may Allah grant him peace -- said: 'Do not punish people with the punishment of Allah!' I would have killed them, as the Prophet said: 'Kill him who changes his religion!'" Ali -- peace be upon him! -- fought the heretics who joined the sect of Manichaeism -- those who believe in the eternity of light and darkness, and who say that the world was born out of this duality.

14. The Good Deeds of the Apostate

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The Hanafites: Apostasy invalidates the reward for all the good deeds that a Muslim performed prior to falling away from Islam. When he repents and returns to Islam, he must repeat the prayer, after the performance of which he apostatised. In the same way, he must repeat the pilgrimage if he performed it prior to his apostasy. And one should not forget that the forfeiture of reward for a deed does not invalidate the deed itself, for a prayer in an occupied country is indeed valid and can abrogate judgement, but the Muslim (according to most scholars) is not rewarded by Allah.

The Shafi´ites: Apostasy, when followed immediately by death, invalidates good deeds: "...Whoso of you turns from his religion, and dies disbelieving -- their works have failed in this world and the next...; 'If thou associatest other gods with Allah, thy work shall surely fail and thou wilt be among the losers'; Whoso disbelieves in the faith, his work has failed, and in the world to come he shall be among the losers" (Suras al-Baqara 2:214; al-Zumar 39:65; al-Ma´ida 5:8). There are other verses that reveal that good works (in the case of apostasy) become invalid and the reward is lost. Therefore, he who returns to Islam must repeat the pilgrimage which was performed prior to the apostasy.

Closing

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Whoever reads the reports and testimonies of those who are persecuted by their state, Islamic culture, or even their own families, will realise by their shocking experiences and suffering how the law against apostasy in Islam is still making itself felt today.

The law of Islam cannot be changed by Muslims, for it is understood to be divine revelation. Considered to be above and beyond all discussion, it fights against basic human rights in critical issues. This law functions as a drawn sword, dangling over the head of every convert as long as he lives. As soon as the control of a state is in the hands of Islamic fundamentalists, or when the masses chaotically rush through the streets during religious unrest, one must reckon with the death of individual converts; for the law demands their death without mercy!

Abd al-Masih