“… the statement of Allah’s Apostle,
‘Whoever changed his Islamic religion, then kill him.'”
(Sahih al-Bukhari vol. 9, No. 57 p. 45)
Summary: In Shari’ah law, the penalty for a Muslim who departs from Islam is death. Quotations from Islamic legal sources are presented, so a person can read for himself the Islamic texts where capital punishment is prescribed as the appropriate punishment for the crime of apostasy. A Muslim’s fear of being rejected by family and society and possibly murdered is a deterrent against conversion from Islam.
1. Ahmad ibn Naqib, Reliance of the Traveller: A Classic Manual of Islamic Sacred Law.
2. Imam Ibn Anas Malik, Al-Muwatta: The First Formulation of Islamic Law.
3. Al-Bukhari, The Translation of the Meaning of Sahih Al-Bukhari.
4. Imam Muslim, Sahih Muslim: Being Traditions of the Sayings and Doings of the Prophet Muhammad.
5. Imam Abu Dawud, Sunan Abu Dawud.
6. Ibn-I-Maja, Sunan Ibn-I-Majah.
7. Al Hadis, Mishkat-ul-Masabih
8. Rahman Doi, Sharī’ah: The Islamic Law.
9. Alhaji Ajijola, Introduction to Islamic Law
10. Adbul ‘Oudah, Criminal Law of Islam, Volume II.
11. Adbul ‘Oudah, Criminal Law of Islam, Volume IV.
12. Mohamed El-Awa, Punishment in Islamic Law: A Comparative Study.
In Islam, an apostate (murtad) is a Muslim who renounces his faith in Islam. This renouncement may be by word or by deed. Muhammad, the Apostle of Islam, instituted the death penalty for the crime of leaving the fold of Islam. Until this day, the threat of this prospective punishment negates true religious freedom for millions of Muslims. Those who leave Islam face the threat of death until they escape to a non-Islamic nation that respects the civil and human rights of its citizenry.
The severity of punishment varies between nations with Muslim majorities. Some Islamic countries seek to be faithful to the Sunnah and Qur’an of Muhammad; and, as a consequence, a Muslim who converts to another religion faces a greater threat of death. On the other hand, other Muslim nations have a more relaxed attitude towards the Qur’an and the canonical hadith literature. Where this is the case, death is less a threat, but this liberty is not due to the Sunnah and the Qur’an of Muhammad, rather it exists because of non-Islamic influences.
Western Muslims claim repeatedly that true Islam is a belief system that teaches and practices religious freedom. This message of tolerance is welcomed news to Westerners who know little or nothing about the Qur’an and Sunnah but who fear the expanding role of Islam in the West, especially after they have seen Muslim terrorists strike targets around the world. So, no doubt, the appealing Islamic da’wah message brings them some comfort.
Many Western political leaders state on national TV that Islam is a religion of peace, liberty, and brotherhood. Their speeches seek 1) to calm the fears of their nation’s Muslims from reprisals because of Islamic terrorists’ attacks, 2) to minimize opposition against the war on terrorism, and 3) to create a favorable impression among Muslims to garner their votes in future elections. Yet, they don’t substantiate their assertions from the Sirat (biography), Sunnah (sayings and behavior in the ahadith), and Shari’ah code of Muhammad. It is one thing to say Islam is a religion of peace, and it is another thing to present the historical evidence from the life of Muhammad.
To discover the true nature of religious liberty in Islam, one has to go beyond the slick, colorful, and inviting Islamic da’wah literature. The real questions is: What does Muslim scholarship teach on the liberty of Muslims to convert to another religion? To find out what classic scholars teach is a daunting task that overwhelms most non-Muslims. First, Western Muslims don’t readily distribute their scholarly Shari’ah literature to non-Muslims; and, secondarily, most libraries don’t have these Islamic legal books on their shelves for the public to read.
Recently, in the London Times, a Muslim stated that apostasy is not punishable by death and that “Islam is the greatest champion of freedom.”
“… Is apostasy punishable by death in Islam? The answer is a categorical no. There is neither any such teaching in the Holy Qur’an nor any example to be found in the life of the Holy Prophet of Islam. Islam does not permit its followers to take any life because of religious difference. Religion should be a matter of choice for everyone and in this respect Islam is the greatest champion of freedom. …” The Times, Ataul M. Rashed, The London Mosque, January 14, 2003.
Obviously, if orthodox Islam has apostasy laws, such that a Muslim may not leave Islam and convert another religion without punishment, then it lacks meaningful religious liberty from a rational perspective. It is one thing to claim religious freedom and it is another thing to actually possess religious liberty.
A book published in the United States, Reliance of the Traveller: A Classic Manual of Islamic Sacred Law, is a translation of ‘Umdat al-salik by Ibn Naqib (died 1368 A.D.). This Shari’ah legal manual explicitly presents the punishment for Muslim who leaves Islam. It states that, if a sane person leaves Islam voluntarily, the person is to be killed by the proper Islamic authority. However, if someone kills an apostate on his own, the killer does not face the capital punishment, because he has killed someone who deserves to die.
Although this book is published in the United States, it has not been denounced by Muslims. In fact, it is featured by many respected Islamic bookstores without a word warning that it advocates murderous acts contrary to human rights and constitutional law. Many fundamentalist Muslims believe that, even within Western nations, Shari’a law is supreme over all human legal systems. For this reason, some in the West who leave Islam feel threatened by fundamentalist Muslims.
By contrast, imagine the Christian response to a book claiming that anyone who departs from the Christian faith has to be executed by the government! And, if a proper governmental authority is not willing to behead the apostate, any individual may kill the offender, because he deserves to die. Such a book would be denounced by all Christians: Catholics, Protestants, and Eastern Orthodox denominations. Also, no Christian bookstore offers such treasonous books advocating the death of someone who leaves Christianity. This is not the case in the Muslim community where there are many books featured that state that a Muslim who leaves Islam deserves justly to be executed.
In fairness to the reader, the complete section, Apostasy From Islam, is quoted, so that the reader can see the entire text within its context and read the justification offered for beheading a person who leaves the fold of Islam.
(O: Leaving Islam is the ugliest form of unbelief (kufr) and the worst. It may come about through sarcasm, as when someone is told, “Trim your nails, it is sunna,” and he replies, “I would not do it even if it were,” as opposed to when some circumstance exists which exonerates him of having committed apostasy, such as when his tongue runs away with him, or when he is quoting someone, or says it out of fear.)
o8.1 When a person who has reached puberty and is sane voluntarily apostatizes from Islam, he deserves to he killed.
o8.2 In such a case, it is obligatory for the caliph (A: or his representative) to ask him to repent and return to Islam. If he does, it is accepted from him, but if he refuses, he is immediately killed.
o8.3 It he is a freeman, no one besides the caliph or his representative may kill him. If someone else kills him, the killer is disciplined (def: o17) (O: for arrogating the caliph’s prerogative and encroaching upon his rights, as this is one of his duties).
o8.4 There is no indemnity for killing an apostate (O: or any expiation, since it is killing someone who deserves to die).
o8.5 If he apostatizes from Islam and returns several times, it (O: i.e. his return to Islam, which occurs when he states the two Testifications of Faith (def: o8.7(12))) is accepted from him, though he is disciplined (o17).
o8.6 (A: If a spouse in a consummated marriage apostatizes from Islam, the couple are separated for a waiting period consisting of three intervals between menstruations. If the spouse returns to Islam before the waiting period ends, the marriage is not annulled but is considered to have continued the whole time (dis: m7.4).)
ACTS THAT ENTAIL LEAVING ISLAM
o8.7 (O: Among the things that entail apostasy from Islam (may Allah protect us from them) are:
(1) to prostrate to an idol, whether sarcastically, out of mere contrariness, or in actual conviction, like that of someone who believes the Creator to be something that has originated in time. Like idols in this respect are the sun or moon, and like prostration is bowing to other than Allah, if one intends reverence towards it like the reverence due to Allah;
(2) to intend to commit unbelief, even if in the future. And like this intention is hesitating whether to do so or not: one thereby immediately commits unbelief;
(3) to speak words that imply unbelief such as “Allah is the third of three,” or “I am Allah” — unless one’s tongue has run away with one, or one is quoting another, or is one of the friends of Allah Most High (wali, def: w33) in a spiritually intoxicated state of total oblivion (A: friend of Allah or not, someone totally oblivious is as if insane, and is not held legally responsible (dis: k13.1(O:))), for these latter do not entail unbelief;
(4) to revile Allah or His messenger (Allah bless him and give him peace);
(5) to deny the existence of Allah, His beginningless eternality, His endless eternality, or to deny any of His attributes which the consensus of Muslims ascribes to Him (dis: v1);
(6) to be sarcastic about Allah’s name, His command, His interdiction, His promise, or His threat;
(7) to deny any verse of the Koran or anything which by scholarly consensus (def: b7) belongs to it, or to add a verse that does not belong to it;
(8) to mockingly say, “I don’t know what faith is”;
(9) to reply to someone who says, “There is no power or strength save through Allah”: “Your saying ‘There’s no power or strength, etc.’ won’t save you from hunger”;
(10) for a tyrant, after an oppressed person says, “This is through the decree of Allah,” to reply, “I act without the decree of Allah”;
(11) to say that a Muslim is an unbeliever (kafir) (dis: w47) in words that are uninterpretable as merely meaning he is an ingrate towards Allah for divinely given blessings (n: in Arabic, also “kafir”);
(12) when someone asks to be taught the Testification of Faith (Ar. Shahada, the words, “La ilaha ill Allahu Muhammadun rasulu Llah” (There is no god but Allah, Muhammad is the Messenger of Allah)), and a Muslim refuses to teach him it;
(13) to describe a Muslim or someone who wants to become a Muslim in terms of unbelief (kufr);
(14) to deny the obligatory character of something which by the consensus of Muslims (ijma’, def: b7) is part of Islam, when it is well known as such, like the prayer (salat) or even one rak’a from one of the five obligatory prayers, if there is no excuse (def: u2.4);
(15) to hold that any of Allah’s messengers or prophets are liars, or to deny their being sent;
(n: ‘Ala’ al-Din ‘Abidin adds the following:
(16) to revile the religion of Islam;
(17) to believe that things in themselves or by their own nature have any causal influence independent of the will of Allah;
(18) to deny the existence of angels or jinn (def: w22), or the heavens;
(19) to be sarcastic about any ruling of the Sacred Law;
(20) or to deny that Allah intended the Prophet’s message (Allah bless him and give him peace) to be the religion followed by the entire world (dis: w4.3-4) (al-Hadiyya al-‘Ala’iyya (y4), 423-24).)
There are others, for the subject is nearly limitless. May Allah Most High save us and all Muslims from it.) —
Quotation from: Ahmad ibn Naqib al-Misri, Reliance of the Traveller: A Classic Manual of Islamic Sacred Law, Translated by Nuh Ha Mim Keller, Amana Publications, Beltsville, MD, 1997 Revised Edition, p. 595-598.)
It does not take much to become a Muslim apostate. As an example of how someone may show that he is an apostate, he merely has to say sarcastically, “”Trim your nails, it is sunna,” and he replies, “I would not do it even if it were.”” The Muslim who makes this deviation from true Islam — according to one of the most popular Shari’a books printed near the capital of the United States — deserves death. The Muslim has the religious liberty to leave Islam. The only drawback is that he may lose his head, if he seeks to follow the truth.
Imam Ibn Anas Malik
In the Al-Muwatta of Imam Malik, the punishment for leaving Islam is execution by beheading after imprisonment and waiting three days in case the offender decides to repent and return to Islam.
15 Yahya related to me from Malik from Zayd ibn Aslam that the Messenger of Allah, may Allah bless him and grant him peace, said, “If someone changes his religion – then strike off his head!”
The meaning of the statement of the Prophet, may Allah bless him and grant him peace, in our opinion – and Allah knows best – is that, “If someone changes his religion – then strike off his head!” refers to those who leave Islam for something else – like heretics and suchlike, about whom that is known. They are killed without being called to repent because their repentance is not recognised. They were concealing their disbelief and making their Islam public, so I do not think that one should call such people to repent and one does not accept their word. As for the person who leaves Islam for something else and divulges it, he is called on to repent. If he does not turn in repentance, he is killed. If there are people in that situation, I think that one should call them to Islam and call on them to repent. If they repent, that is accepted from them. If they do not repent, they are killed. That does not refer as we see it, and Allah knows best, to those who convert from Judaism to Christianity or from Christianity to Judaism, nor to someone who changes his religion from any of the various forms of religion except for Islam. Whoever comes out Islam to something else and makes that known, that is the one who is referred to, and Allah knows best!
16 Malik related to me from ‘Abd ar-Rahman ibn Muhammad ibn ‘Abdullah ibn ‘Abd al-Qari that his father said, “A man came to ‘Umar ibn al-Khattab from Abu Musa al-Ash’ari. ‘Umar asked after various people, and he informed him about them. Then ‘Umar inquired, ‘Do you have any recent news?’ He said, ‘Yes. A man has become an unbeliever after he was Muslim.’ ‘Umar said, ‘What have you done with him?’ He replied, ‘We let him approach and then struck off his head.’ ‘Umar said, ‘Didn’t you imprison him for three days and feed him a loaf of bread every day and call on him to repent that he might turn in repentance and return to the command of Allah?’ Then ‘Umar said, ‘O Allah! I was not present and I did not order it and I am not pleased since it has come to me!”
Quotation from: Malik, ibn Anas (Imam), Al-Muwatta: The First Formulation of Islamic Law, Translated by Aisha A. Bewley, Madinah Press Granada, Spain, 1989, p. 303-304.
Three days of grace are extended to a Muslim apostate in case he desire to repent and return to the most tolerant of all religions, Islam. Otherwise, his head is to be struck off. Since al-Muwatta is an ancient work of Shari’a law, it is evident that the punishment for apostasy is not a new innovation within Islam. In fact, it dates back to Muhammad himself when he came to power in Medina. Immediately after Muhammad died and it looked like a favorable opportunity to escape, many Arabians departed from Islam. Their departure is not surprising because they only became Muslims when Muhammad threatened them with death. They were never convinced that Muhammad was a divine prophet of God. So, it was necessary for the successor to Muhammad, Abu Bakr, to fight those who had left Islam. Those famous wars are called ‘Wars of Apostasy.” So, it is evident that Islam would never have survived on its own intellectual and religious merits. Rather, its success required intimidation, fear, and the bloody sword on the necks of unbelievers.
The most-respected collection of the sayings and behavior of Muhammad is the canonical ahadith (hadith, singular; ahadith, plural) of Al-Bukhari. Muslim legal scholars use these traditions to establish the punishment for apostasy from Islam. The apostate is not to be burned to death, as ‘Ali had done, but they were to be executed nevertheless.
260. Narrated ‘Ikrima: ‘Ali burnt some people and this news reached ibn ‘Abbas, who said, “Had I been in his place I would not have burnt them, as the Prophet said, ‘Don’t punish (anybody) with Allah’s Punishment.’ No doubt, I would have killed them, for the Prophet said, ‘If somebody (a muslim) discards his religion, kill him.’” — Volume 4, Book 52, Chapter 149, Number 260. p. 160-161.
(2) CHAPTER. The legal regulation concerning the male and the female who reverts from Islam (apostates). Ibn ‘Umar, Az-Zuhri and Ibrahim said, “A female apostate (who reverts from Islam), should be killed. And the obliging of the reverters from Islam (apostates) to repent. Allah said: — ‘How shall Allah guide a people who disbelieved after their belief and (after) they bore witness that the Apostle (Muhammad) was true, and that Clear Signs had come unto them? And Allah does not guide the wrong-doing people. As for such the reward is that on them (rests) the curse of Allah, the Angels, and of all mankind. They will abide there-in (Hell). Neither will their torment be lightened nor it will be postponed (for a while). Except for those that repent after that and make amends. Verily Allah is Oft-Forgiving, Most Merciful. Surely those who disbelieved after their belief, and go on adding to their defiance of faith, never will their repentance be accepted, and they are those who have gone astray.’ (Sura 3:86-90) — Volume 9, Book 84, Chapter 2, p. 42-43.
57. Narrated ‘Ikrima: Some Zanadiqa (atheists) were brought to ‘Ali and he burnt them. The news of this event, reached Ibn ‘Abbas who said, “If I had been in his place, I would not have burnt them, as Allah’s Apostle forbade it, saying, ‘Do not punish anybody with Allah’s punishment (fire).’ I would have killed them according to the statement of Allah’s Apostle, ‘Whoever changed his Islamic religion, then kill him.‘” — Volume 9, Book 84, Chapter 2, Number 57, page 45
58. Narrated Abu Burda: Abu Musa said, “I came to the Prophet along with two men (from the tribe) of Ash’ariyin, one on my right and the other on my left, while Allah’s Apostle was brushing his teeth (with a Siwak), and both men asked him for some employment. The Prophet said, ‘O Abu Musa (O ‘Abdullah bin Qais!).’ I said, ‘By Him Who sent you with the Truth, these two men did not tell me what was in their hearts and I did not feel (realize) that they were seeking employment.’ As if I were looking now at his Siwak being drawn to a corner under his lips, and he said, ‘We never (or, we do not) appoint for our affairs anyone who seeks to be employed. But O Abu Musa! (or ‘Abdullah bin Qais!) Go to Yemen.'” The Prophet then sent Mu’adh bin Jabal after him and when Mu’adh reached him, he spread out a cushion for him and requested him to get down (and sit on the cushion). Behold: There was a fettered man beside Abu Muisa. Mu’adh asked, “Who is this (man)?” Abu Muisa said, “He was a Jew and became a Muslim and then reverted back to Judaism.” Then Abu Muisa requested Mu’adh to sit down but Mu’adh said, “I will not sit down till he has been killed. This is the judgment of Allah and His Apostle (for such cases) and repeated it thrice. Then Abu Musa ordered that the man be killed, and he was killed. Abu Musa added, “Then we discussed the night prayers and one of us said, ‘I pray and sleep, and I hope that Allah will reward me for my sleep as well as for my prayers.'” — Volume 9, Book 84, Chapter 2, Number 58, p. 45-46.
271. Narrated Abu Musa: A man embraced Islam and then reverted back to Judaism. Mu’adh bin Jabal came and saw the man with Abu Musa. Mu’adh asked, “What is wrong with this (man)?” Abu Musa replied, “He embraced Islam and then reverted back to Judaism.” Mu’adh said, “I will not sit down unless you kill him (as it is) the verdict of Allah and His Apostle. — Volume 9, Book 89, Chapter 12, Number 271, p. 201.
Quotation from: Al-Bukhari, The Translation of the Meaning of Sahih Al-Bukhari, Translated by M.M. Khan, Dar AHYA Us-Sunnah, Al Nabawiya, (Arabic & English), vol. 4 and 9.
From the ahadith of al-Bukhari, it can be seen that Muhammad himself provided the directive and rationale why a Muslim apostate must be executed. Since Muhammad himself commanded the death of anyone who leaves Islam, the punishment for apostasy falls within the category of hadd punishments, i.e., punishments pre-determined by Allah that cannot be changed by an Islamic jurist.
Like the ahadith of al-Bukhari, Imam Muslim’s collection of ahadith affirms too that the punishment for apostasy is death. It notes that Hanafite legal scholars exempt women apostates from death, nevertheless they would confine them to prison until they repent and return to Islam.
Chapter DCLXXIII. WHEN IT IS PERMISSIBLE TO TAKE THE LIFE OF A MUSLIM
(4152) ‘Abdullah (b. Mas’ud) reported Allah’s Messenger (may peace be upon him) as saying: It is not permissible to take the life of a Muslim who bears testimony (to the fact) that there is no god but Allah, and I am the Messenger of Allah, but in one of the three cases: the married adulterer, 2131 a life for life, and the deserter 2132 of his Din (Islam), abandoning the community.
(4153) ‘This hadith has been narrated on the authority of A’mash.
(4154) ‘Abdullah (b. Mas’ud) reported: Allah’s Messenger (may peace be upon him) stood up and said: By Him besides Whom there is no god but He, the blood of a Muslim who bears the testimony that there is no god but Allah, and I am His Messenger, may be lawfully shed only in case of three persons: the one who abandons Islam, and deserts the community [Ahmad, one of the narrators, is doubtful whether the Holy Prophet (may peace be upon him) used the word l’l-jama’ah or al-jama’ah], and the married adulterer, and life for life.
(4155) This hadith has been reported on the authority of A’mash with the same chain of narrators but with a slight variation of words, i.e. he did not say: By Him besides Whom there is no god. — Vol. III, Book Kitab al-Qasama, Chapter DCLXXIII, Numbers 4152-4155, 898-900.
2132. Apostasy in Islam implies deliberate abandonment of Islam. There is almost consensus of opinion amongst the jurists that apostasy from Islam (Irtidad) must be punished with death.
The apostate is not immediately put to death but is, given a fair chance to explain his viewpoint and every effort is made to convince him of the foolishness of this act of his and bring him to repentance. The Hanafites are inclined to think that the punishment of death on account of apostasy is applicable to men. According to them, women are only to be kept in prison until they repent, because the Holy Prophet (may peace be upon him) has forbidden the putting to death of unbelieving women. Those who differ with this view assert that this has reference only to the killing of the unbelieving women in war and not to the apostate women.
There has been a good deal of criticism against the severe punishment which Islam prescribes for apostasy. The main line of argument is that acceptance and abandonment of religion is a matter of one’s own choice and should not, therefore, be made a cognizable offence. This whole argument is based on one wrong supposition and that is the reason why the punishment prescribed by Islam for apostasy seems to be tyrannical. If Islam were a mere religion in the sense in which this term is commonly used, a hotchpotch of dogmas and rituals, having no direct relation with the economic, political and social structure of society, then such severe punishment for apostasy would have certainly been the height of highhandedness because the change of religion would not have, in the least, disturbed the social order. But the problem is that in Islam the Kingdom of Heaven whose foundations are firstly laid in the heart of man is to be essentially externalised in every phase of social set up. i.e. in politics, in economics, in law, in manners and in international relations. In such circumstances it is quite obvious that when a person rebels against the Kingdom of Heaven within his heart, he commits high treason against the Kingdom of Heaven on earth, the visible and concrete expression of the Kingdom of Heaven within the heart. The persons who commit treason are always dealt with severely in every political order. No clemency is shown to them who undermine the foundations of the State and disrupt the social order. A stern attitude is always adopted by all sane governments against rebels and disruptionists, and so is the case with Islam. There is nothing unusual about what Islam has done. If one cares to reflect deeply over the words of the ahadith one would find that there is implied reference to this aspect of the problem. The words are: “The abandoner of his religion and the deserter of the society.” These words imply that in Islam religion is not a matter of private relationship between man and God, but is intertwined with society. So when he abandons Islam he in fact revolts against the authority of the Islamic State and society.
Chapter DCCLVI. PROHIBITION OF A DESIRE FOR A POSITION OF AUTHORITY AND COVETOUSNESS THEREOF
4490. … When Mu’adh reached the camp of Aba Musa, the latter (received him and) said: Please get yourself down; and he spread for him a mattress, while there was a man bound hand and foot as a prisoner. Mu’adh said: Who is this? Abu Musa said: He was a Jew. He embraced Islam. Then he reverted to his false religion and became a Jew. Mu’adh said: I won’t sit until be is killed according to the decree of Allah and His Apostle (may peace be upon him) (in this case). Abu Musa said: Be seated. It will be done. He said: I won’t sit unless he is killed in accordance with the decree of Allah and His Apostle (may peace be upon him). He repeated these words thrice. Then Abu Mina ordered him (to be killed) and he was killed. 2295 Then the two talked of standing in prayer at night. One of them, i.e. Mu’adh, said: I sleep (for a part of the night) and stand in prayer (for a part) and I hope that I shall get the same reward for sleeping as I shall get for standing (in prayer). 2296 — Vol. III. Book Kitab Al-Imara, Chapter DCCLVI, Number 4490, p. 1015.
2295. This clearly shows that if an apostate insists on apostasy and does not revert to Islam he should be killed.
Quotation from: Muslim, Imam, Sahih Muslim: Being Traditions of the Sayings and Doings of the Prophet Muhammad as Narrated by His Companions and compiled under the Title Al-Jami’-Us-Sahih, Translated by ‘Abdul H. Siddiqi, Vol. III.
Sunan Abu Dawud
Another trustworthy (sahih) collection of ahadith is the Sunan of Abu Dawud. It supports the death penalty for apostasy too.
XXXIII. KITAB AL-HUDUD
[BOOK OF PRESCRIBED PUNISHMENTS]
PUNISHMENT OF AN APOSTATE
(4337) ‘Ikrimah said: ‘Ali burned some people who retreated 3794 from Islam. When Ibn ‘Abbas was informed of it, he said: If it had been I, I would not have them burned, for the Apostle of Allah (may peace be upon him) said: Do not inflict Allah’s punishment on anyone, but would have had killed them on account of the statement of the Apostle of Allah (may peace be upon him). The Apostle said: Kill those who change their religion. When ‘Ali was informed about it he said: How truly Ibn ‘Abbas said!
(4338) ‘Abd Allah (b. Mas’ud) reported the Apostle of Allah (may peace be upon him) as saying: The blood of a Muslim man who testifies that there is no god but Allah and that I am the Apostle of Allah should not be lawfully shed but only for one of three reasons: married fornicator, 3795 soul for soul, 3796 and one who deserts his religion separating himself from the community. 3797
(4339) ‘A’ishah (may Allah be pleased with her) reported the Apostle of Allah (may peace be upon him) as saying: The blood of a Muslim man who testifies that there is no god but Allah and that Muhammad is Allah’s Apostle should not lawfully be shed except only for one of three reasons: a man who committed fornication after marriage, in which case he should be stoned; one who goes forth to fight with Allah and His Apostle, 3798 in which case he should be killed or crucified or exiled from the land ; or one who commits murder for which he is killed.
(4340) Abu Burdah said on the authority of Abu Musa: I went to the Prophet (may peace be upon him) while two men who were Ash’aris were with me. One of them was on my right and the other on my left side. Both of them asked him for employment. The Prophet (may peace be upon him) was silent. He asked: What do you say, Abu Musa, or ‘Abd Allah b. Qais (Abu Musa’s, name)? I replied: By Him Who has sent you with truth, they did not inform me of what they had in their hearts, and I did not know that they would ask for an employment. He said: I have the scene before my eyes that he had his toothstick below his lip which receded. He (the Prophet) said: We will never or will not put in charge of our work anyone who asks for it. But go, ye, Abu Musa, or ‘Abd Allah b. Qais. He then sent him as a Governor of the Yemen. After him he sent Mu’adh b. Jabal. When Mu’adh came to him, he said: Come down, and he put a cushion for him. He saw that a man was chained with him. He asked: What is this? He replied: He was a Jew and he accepted Islam. He then converted to his religion, an evil religion. He said: I will not sit until he is killed according to the decision of Allah and His Apostle (may peace be upon him). He said: Yes, be seated. He said: I will not sit until he is killed according to the decision of Allah and His Apostle (may peace be upon him). He said it three times. He then commanded for it and he was killed. Both of them then discussed the question of prayer and vigilance at night. One of them, probably Mu’adh, said: So far as I am concerned, I sleep and I keep vigilance; I keep vigilance and I sleep; I hope for the same reward for my sleep as for, my vigilance.
(4341) Abu Musa said: Mu’adh came to me when I was in the Yemen. A man who was Jew embraced Islam and then retreated from Islam. When Mu’adh came, he said: I will not come down from my mount until he is killed. He was then killed. One of them said: He was asked to repent before that.
(4342) Abu Burdah said: A man who turned back from Islam was brought to Abu Musa. He invited him to repent for twenty days or about so. Mu’adh then came and invited him (to embrace Islam) but he refused. So he was beheaded.
(4343) The tradition mentioned above has also been transmitted by Abu Musa through a different chain of narrators. But there is no mention of demand of repentance.
(4344) The tradition mentioned above has also been transmitted by al-Qasim through a different chain of narrators. This version has: He did not come down until he was killed, and he did not ask him for repentance.
(4345) Ibn ‘Abbas said: ‘Abd Allah b. Abi Sarh used to write (the revelation) for the Apostle of Allah (may peace be upon him). Satan made him slip, and he joined the infidels. The Apostle of Allah (may peace be upon him) commanded to kill him on the day of Conquest (of Mecca). ‘Uthman b. ‘Affan sought protection for him. The Apostle of Allah (may peace be upon him) gave him protection.
(4346) Sa’d said: On the day of the Conquest of Mecca ‘Abd Allah b. Said b. Abi Sarh hid himself with ‘Uthman b. ‘Affan. He brought him and made him stand before the Prophet (may peace be upon him), and said: Accept the allegiance of ‘Abd Allah, Apostle of Allah! He raised his head and looked at him three times, refusing him each time, but accepted his allegiance after the third time. Then turning to his Companions he said: Was not there a wise man among you who would stand to him when he saw me that I had withheld my hand from accepting his allegiance and killed him? They said: We did not know what you had in your heart, Apostle of Allah! Why did you not give us a signal with your eye? He said: It is not advisable for a Prophet to have tricks that deceive with the eyes.
(4347) Jarir reported the Prophet (may peace be upon him) as saying: When a slave runs away and reverts to polytheism, he may lawfully be killed.
3793. Hudud is plural of hadd, meaning a thing which restrains or prevents. Since a punishment prevents a man from doing crimes, it is called hadd. But it applies only to those punishments that are prescribed in the Qur’an or Sunnah. They are: punishment for theft, adultery, accusation of adultery, and drinking of wine. Punishment for homicide and dacoity has also been mentioned in the Qur’an.
3794. The punishment of an apostate in Islam is death. If a man retreats from Islam, he will be required to repent. If he declines, he will be killed. According to the Hanafis, this applies only to men and not to women. Female apostates shall not be killed. But majority of the scholars are of
view that both male and female apostates should be killed.
3795. If the fornicator is unmarried, he will be given a punishment of one hundred lashes. If he is married, he will be stoned to death.
3796. If a man commits murder intentionally, he will be killed.
3797. An apostate is given sufficient time to repent. If he refuses, he will be killed.
3798. This refers to such things as highway robbery and revolt against the Government. According to Malik and al-Shaf’i, he will be crucified. The ruling authorities have a choice to inflict any of these four punishments.
Quotation from: Dawud, Imam Abu, Sunan Abu Dawud: English Translations with Explanatory Notes by Prof. Ahmad Hasan, Sh. Muhamad Ashraf Publications, Lahore, Pakistan, First Edition 1984 (Reprinted 1996), Vol. III, Book XXXIII, Chapter 1605, p. 1212-1214
The Sunan of Ibn Majah is one of the six sahih (trustworthy) traditions (Sahih Al-Bukhari, Sahih Muslim, Sunan Abu Dawud, Sunan At-Tirmidhi, Sunan An-Nisa’i, and Sunan Ibn Majah) that are the basis of Shari’ah law. Here it is clear that it is permissible to shed the blood of a Muslim who turns apostate. Tradition No. 2535 shows that the Apostle of Islam himself made it obligatory that a Muslims who forsakes Islam must be killed.
20. BOOK OF PRESCRIBED PUNISHMENTS
Chapter No. I (Shedding) Blood of a Muslim in Not Lawful But in Three Cases.
2533. Abu ‘Umama b. Sahl b. Hunaif is reported to have said that ‘Uthman b. ‘Affan looked at them (the rebels) and heard them mentioning the murder. Upon this, he said, “Do they give me a threat of killing? Then why are they killing me? Indeed, I have heard Allah’s Messenger (peace and blessings of Allah be upon him) saying, “The blood of a Muslim is not lawful except for one of the three reasons: man fornicates while he is fortified (in a wedlock), will be stoned to death; or a man kills a person without any justification or a man turns an apostate after his (embracing) Islam.” By Allah, I did not commit fornication either in pre-Islamic period (Ignorance) nor in (the state of) Islam, I have not killed any Muslim and have not turned an apostate since I have embraced Islam.”
2534. ‘Abdullah, called Ibn Mas’ud (Allah be pleased with him), reported that Allah’s Messenger (peace and blessings of Allah be upon him) said, “The blood a Muslim is not lawful who testifies that there is no god but Allah and that I am Allah’s Messenger, but (it is lawful to shed blood) in one of the three cases: (killing) a person, an aged fornicator or a man who forsakes his religion (Islam) and deserts the body (of the Muslims).”
Chapter No. II One who Deserts his Religion
2535. Ign ‘Abbas (Allah be pleased with him) reported that Allah’s Messenger (peace and blessings of Allah be upon him) said, “Kill him who changes his religion (of Islam).”
Quotation from: Ibn-I-Maja Al-Qazwini, Imam Abu Abdullah Muhammad B. Yazid, Sunan Ibn-I-Majah, Translated by Muhammad Tufail Ansari, Kazi Publications, Lahore, Pakistan, 1993, vol. IV. p. 1-2.
The Mishkat-ul-Masabih states that a retrograde (i.e., apostate) deserves the death penalty, because Mus’ud reported that this was the command of Muhammad himself. As Muhammad gained more power, the less tolerant he became of anyone who differed from him.
1150 — The sentence of murder.
5.Abdullah-b-Mus’ud reported that the Apostle of Allah said: The murderer of a Muslim bearing witness ‘that there is no god but Allah and that I am the Messenger of Allah’ is not lawful except for one of the three (reasons ): life for life, a married adulterer and a retrogade from his religion — one who leaves the united body. 1151 — Agreed
1151. Murder of a Muslim is unlawful except for three reasons; (1) for the murder of a man unjustly and without right; (2) for commission of adultery in marriage wed-lock; (3) for retrogession from the religion of Islam. Abu Hanifa holds that a woman rebel cannot be lawfully murdered.
Quotation from: Al Hadis, Mishkat-ul-Masabih, translated by al-Haj Maulana Fazlul Karim, Islamic Book Service, New Delhi, India, 1998 Edition, Vol. 2, p. 492
Rahman A. Doi
In Part III: Crimes and Punishments of Shariah: The Islamic Law, Professor Doi, who was a member of the Muslim Students’ Association at the University of Cambridge while studying for his Ph.D., elucidates the criminal nature of apostasy and its punishment. In spite of his liberal education at Cambridge University, he argues that the punishment for leaving the fold of Islam is death.
Al-Riddah means rejection of the religion of Islam in favour of any other religion either through an action or through words of mouth. The act of apostacy thus puts an end to one’s adherence to Islam. When one rejects the fundamental principles of faith (iman) like faith in the Existence of Allah or the Messengership of His Prophet Muhammad as contained in the credal statement of Islam, the Kalimah al-shahadah. Similarly the rejection of the belief in the Qur’an as the Book of Allah or the belief of the message contained in it, or the belief in the Day of Resurrection, or Reward and the Punishment of Allah will all amount to apostacy. The rejection of the obligatory ritual practices like Salat (prayers), Zakat (giving of the poor-rate), Siyam (Fasting in the month of Ramadan), and Hajj Pilgrimage will also amount to acts of Irtidad. Likewise, if one imitates the practices of non-Muslims in their prayers etc; it will be considered an act of apostacy. 67
The following Qur’anic verse explains the gravity of sin and the crime of apostacy:
كَيْفَ يَهْدِي اللّهُ قَوْمًا كَفَرُواْ بَعْدَ إِيمَانِهِمْ وَشَهِدُواْ أَنَّ الرَّسُولَ حَقٌّ وَجَاءهُمُ الْبَيِّنَاتُ وَاللّهُ لاَ يَهْدِي الْقَوْمَ الظَّالِمِينَ — أُوْلَـئِكَ جَزَآؤُهُمْ أَنَّ عَلَيْهِمْ لَعْنَةَ اللّهِ وَالْمَلآئِكَةِ وَالنَّاسِ أَجْمَعِينَ
خَالِدِينَ فِيهَا لاَ يُخَفَّفُ عَنْهُمُ الْعَذَابُ وَلاَ هُمْ يُنظَرُونَ — إِلاَّ الَّذِينَ تَابُواْ مِن بَعْدِ ذَلِكَ وَأَصْلَحُواْ فَإِنَّ الله غَفُورٌ رَّحِيمٌ. سورة آل عمران ٨٦ — ٨٩
“How shall Allah guide those who reject faith after they accepted it and bore witness that the Apostle was true and the clear signs had come unto them. But Allah guides not the people unjust of such the reward is that on them rests the curse of Allah, of His Angels and of all mankind in that will they dwell; nor will their penalty be lightened, nor respite be their lot, except for those that repent (even) after that and make amends; for verily Allah is oft-forgiving, Most Merciful.” [Al-E-Imran 3:86-89] 68
The punishment for apostacy is prescribed in the following Hadith of the Prophet:
عن ابن عبّـاس رضى الله عنه، قال: قال رسول الله صلّى الله عليه وسلّم: “من بدّل دينه فاقـتـلوه”.
It is reported by Abbas, may Allah be pleased with him, that the Messenger of Allah (S.A.W.) said: “Whosoever changes his religion (from Islam to anything else), bring end to his life.” 69
The punishment by death in the case of apostacy has been unanimously agreed upon by all the four schools of Islamic jurisprudence. But, if one is forced to pronounce something that amounts to apostacy, while his heart is satisfied with Iman (faith), he will not be charged with apostacy in those circumstances. The Qur’an says:
مَن كَفَرَ بِاللّهِ مِن بَعْدِ إيمَانِهِ إِلاَّ مَنْ أُكْرِهَ وَقَلْبُهُ مُطْمَئِنٌّ بِالإِيمَانِ وَلَـكِن مَّن شَرَحَ بِالْكُفْرِ صَدْرًا فَعَلَيْهِمْ غَضَبٌ مِّنَ اللّهِ وَلَهُمْ عَذَابٌ عَظِيمٌ. سورة النحل ١٠٦
“Anyone who after accepting Faith in Allah, utters Unbelief, except under compulsion, his heart remaining firm in Faith; but such as open their breast to Unbelief, on them is wrath from Allah and theirs will be a dreadful penalty.” 70
In the books of Ahadith, the causes of revelation (Asbab al-Nuzul) of this verse are mentioned referring to the case of ‘Ammar bin Yasir. ‘Ammar’s father Yasir and mother Sumayyah were subjected to unbearable tortures for their belief in Islam and love for the prophet, but in spite of the tortures they never recanted. ‘Ammar was a young man of less mature age. In a weak moment, while suffering great tortures at the hands of the pagan Arabs and thinking of his parent’s suffering uttered something that was construed as recantation, though his heart never wavered. Abu Jahl had made iron chains and had put them around his body in the hot summer days. The chains became hot like live charcoals due to the heat of the sun. In such desperate moments he said something which was reported to the Prophet. The Prophet thereupon said about ‘Ammar:
عـمّـارٌ ملىءٌ إيماناً من فرقهِ إلى قـدمهِ
‘Ammar is full of Iman from his head to his feet.”
It was on this occasion that the above verse was revealed.
The other legal aspects concerning the effects of apostacy on marriage, divorce and inheritance are discussed in the respective chapters dealing with them.
67. Al-Ajuz, Ahmad Muhyi al-Din, Manahijal-Shari’ah al-Islamiyyah, Beirut, 1969, vol. 1. p. 249.
68. Qur’an, ch. 3:86-89, Also cf. Qur’an, ch. 2:161-162.
70. Qur’an, ch. 16:106.
Quotation from: Doi, A. Rahman I., Shar’ah: The Islamic Law, A.S. Noordeen, Kuala Lumpur, Malaysia, 4th printing, 1998, p. 265-267.
Professor Doi states, “The punishment by death in the case of apostacy has been unanimously agreed upon by all the four schools of Islamic jurisprudence.” The four Sunni schools (madhhabs) of Islamic law follow the four Imams, Abu Hanifa, Malik ibn Anas, al-Shafi’i, and Ibn Hanbal, who all agree that a murtad deserves death. So, it is evident that the majority Islamic legal opinion requires the death of any Muslim who leaves the fold of Islam. The religious liberty within Islam gives it the liberty to execute a Muslim who converts to another religion.
The Introduction to Islamic Law by Alhaji Ajijola states that the penalty for apostasy is a hadd sentence, meaning the sentence has already been established by Allah. The idea behind a hadd sentence is that Allah has pre-determined the judgment for a particular crime. Consequently, there is no discretionary room for an Islamic judge (Qadi) to alter the punishment for apostasy. Since Allah pre-determined that the apostate must be beheaded, the role of the Qadi is merely to determine whether or not a person has left the fold of Islam. If the person has become an apostate, the Qadi has no option but to sentence the person to beheading.
Hadd or Fixed Sentence
It is that punishment, the limits of which have been defined in the Qur’an and traditions of the Holy Prophet (S.A.W.).
Adulteress or adulterer is to be whipped or stoned;
Apostasy – death;
Drinking wine-eighty lashes;
Theft – cutting of the left hand;
Highway robbery-death or cutting of limbs etc.
Quotation from: Ajijola, Alhaji, Introduction to Islamic Law, International Islamic Publishers, New Delhi, India, 1989, p. 128.
Adbul Qadir 'Oudah
Adbul Qadir ‘Oudah’s, who was an Egyptian Shari’a scholar, wrote compendium of Islamic criminal law presents, in considerable detail, the orthodox view of the precarious state of a Muslim apostate. In a true Islamic state, an apostate has no legal protection, since he is not under the protection of its governance. In an Islamic system, he is to be brought before the legal authority, and there he is given a chance to repent and to return to Islam. If he elects not to repent and to return to Islam, then he must be immediately executed. This is the opinion of all four madhhabs (Hanifi, Maliki, Shaf’i, and Hanbali) of Sunni legal opinion.
Further, if a Muslim government does not punish the apostate, then an individual Muslim has an obligation to kill the apostate himself. The reason is that the law of Allah is obligatory upon all Muslims whether or not an Islamic state recognize the supremacy of Shar’a law. It is not permissible for a Muslim government to punish a Muslim who murders an apostate. This gives every Muslim the right — actually, they are divinely obligated — to take the Shari’ah law into their own hands and murder the apostate in cold-blood.
(377) (b) Apostate (Murtad)
An apostate (Murtad) may be defined as a Muslim who renounces the faith of Islam. In other words apostasy in the Shariah terminology applies to a Muslim alone. If a non-Muslim renounces his religion, he is not treated as an apostate or ‘murtad.’
According to the Shariah taking ‘murtad’s‘ life is an impunitive act or one exempt from punishment. 1 Hence if some one kills him, he will not be deemed as wilfully guilty, 2 whether he does so before allowing the apostate a chance to repent or thereafter; for as long as the offender persists in apostasy, he is open to any maltreatment with impunity.
The general rule in this regard is that the apostate should be punished by the competent authority and if any body else kills him he commits a wrong act as he encroaches on the power vested in such authority. But the person in question will be liable to punishment for his act being prejudicial to the power of the compentent [sic] person and not for homicide. This is the view advocated by the jurists belonging to all the
1. There are two reasons for the vulnerability of an apostate’s life. As long as he remains a Muslim he enjoys guarantee of security because of Islam. No sooner he ceases to be a Muslim than the umbrella of security is withdrawn and his life becomes vulnerable. The second reason is that the penalty of death incurred by an apostate is a hud punishment and not a tazeer or penal punishment. The Holy Prophet has allowed homicide in three cases: “in the case of one who reverts to infidelity after embracing Islam; and one who, being married commits adultery and one who commits murder without any reason.” The Prophet also commands: “Kill the person who renounces his faith.” In short the punishment of apostasy is death penalty. Thus if one keeps in view the punishment prescribed for apostasy, it turns out to be an offence whose agent’s killing is impunitive. But as the basis of apostasy is deviation from Islam which, in its turn, constitutes the basis of the offender’s security, only the first of the above reasons is kept in view in treating the life of an apostate as vulnerable.
2. The jurists have laid down the condition that before applying the injunction pertaining to apostasy the offender should be called upon to repent. If he refuses, then he should be killed.
four Schools. 1 However, a dissident view 2 is also to be found in the Malikite school of thought. According to this view, although an apostate is insecure, his killer will be liable to penal punishment and compensation will also be paid to the Bait-ul-Mal or state treasury. The jurists advocating the foregoing view argue that it is obligatory to call upon the apostate to repent and that he turns an infidel as the result of apostasy. Any one killing an infidel takes the life of a person whose murder is a wrongful act. That is why compensation or dyat for his life must be paid to the Bait-ul-Mal or the exchequer of. Islam; for Bait-ul-Mal alone is the heir of an apostate. In other words, the advocates of this view hold on the one hand that the guarantee of security is invalidated by apostasy and, on the other hand, maintain that an infidel is secure. The discrepency inherent in this view is obvious enough to reject it as fallacious. We may oppose it by maintaining that as long the apostate is a Muslim, he is secure by virtue of Islam and when he deviates from Islam or reverts to infidelity he is no longer secure and that security is ensured by the agreement of protection or peace and not by virtue of infidelity. As the apostate does not come under either of the agreements, he cannot be treated as enjoying the right of security after his reversion to infidelity.
The killer of an apostate is liable to punishment for encroaching on the power of competent authority or for the contempt of such authority when the competent authority reserves the right of exercising such power to himself. But if the courts or other judicial institutions do not award punishment for the offence of apostasy, as is generally the case with courts in Islamic countries today, then these competent institutions are not empowered to award punishment to the killer of an apostate and also it will be wrong to treat the killer as guilty of encroaching on the powers of such institution; for the killer would be liable to punishment only when the institutions in question assume the responsibility
1. (a) Al Bahrul-Raiq, Vol 5, p. 125.
(b) Al Muhazzab, Vol 2, p. 238,
(c) Mawahib-ul-Jaleel, Vol. 6. p. 233.
(d) Al Iqna, Vol. 4, p. 301.
2. Al Shahrul Kabeer, lil Durdeer, Vol. 4, p. 12 i 259
of enforcing the injunctions of which the individuals take upon themselves to enforce, the latter can never be called to account for encroaching on the powers of the former.
A general rule laid down by the Shafi’ee school in this respect is that a vulnerable person has the right to security against another vulnerable person. 1 Hence an apostate will be liable to punishment for killing another apostate. If he does so, he will be treated as guilty of wilful homicide, even if he rejoins the fold of Islam later on. On the contrary if a Muslim takes the life of an apostate, he will not be deemed a killer. The same general rule will according to the majority of the Shafi’tes, be applicable to the case of killing of an apostate by a Zimmi (a non-Muslim protege of an Islamic state). 2 The Shafi’te apply this rule indiscriminately to all the vulerables, but the jurists of other schools do not accept it.
Under the Islamic Shariah the killing of an apostate is an obligation imposed upon every individual rather than a right inasmuch as punishment for apostasy constitutes a hud which must need be enforced.
The modern laws in force are at odds with the Shariah on this point. They do not treat a mere change of religion as punishable. They rather apply the concept of Shariah to a person who deviates from the system on which the society is based. Thus the communist states punish their citizens for renouncing communism. Similarly the Fascist states punish their citizens for rebelling against their system and for supporting communism or democracy. The democratic Countries are at daggers drawn with the communist or Fascist systems and treat them as criminal. In other words, violation of the basic systems of the society occupies the same position in the modern laws as does rebellion against the Islamic system in the Shariah. As Islam constitutes the basis of Islamic social order, revolt against Islam is punishable. It may be inferred from the foregoing discussion that the Shariah and the modern laws are not at variance in principle. They differ only in the application of principles. The Shariah treats Islam as the basis of the society, which naturally calls for the punishment of apostasy in order to ensure the
1. (a) Asna ul-Matalib, Vol. 4, p. 13.
(b) Sharh-ul-Ansari A lal Behjah Vol. 5, pp. 3-4,
2. Sharh-ul Ansari Alal Behjah Vol. 5, p. 3. 260
security of the social system. The man-made laws in force, on the contrary, regard a social ideology instead of religion as the basis of social order. That is why they do not treat change of faith as unlawful. They rather impose a ban on every ideology inconsistent with the one on which rests the wharp and woof of the society regulated by them.
The existing Egyptian penal law has been framed on the pattern of modern laws in force. Thus it does not provide for any punishment for apostasy, although the social order of all the Islamic countries rests on Islam. But absence of a provision for the punishment of apostasy in the Egyptian law does not mean that apostasy is lawful. On the contrary, apostasy according to the provisions of the Shariah is a capital crime. These provisions are still valid, will continue to be so as long as Islam exists and cannot be, rescinded or suspended by the man-made laws in force. 1 Hence if any one kills an apostate, he will on no account be liable to punishment and cannot be treated as guilty of encroaching on the powers of competent authority; for he does a lawful act and discharges his duty imposed by the Shariah.
It may be noted that although the Egyptian penal law contains no provision for the punishment of an apostate, yet it does not prejudice any act done as a right in good faith in pursuance with a provision of the Shariah. (see Clause 60 of the Egyptian penal law). The clause is enough to warrant exemption of the killer of an apostate from punishment. It may be said that killing of an apostate is an obligation and not a right. The answer to such an objection is that an obligation is equal and ever transcendental to a right. Now if we look at the matter from the standpoint of the person who is the object of killing, then the act in question amounts to the right of the agent, for such act is justified both as a right and an obligation and the offender who is to be killed cannot challenge it as the agent is competent to do the act both as a right and as an obligation. But if we look at the matter from the standpoint of moral and religious responsibility, obligation occupies a position of higher order than right inasmuch as obligation must need be fulfilled, whereas the exercise of right is optional. In other words, the difference
1. See Article 191.
between obligation and right manifests itself when a responsible or obligated person is held accountable for omitting an obligatory act; for omission of such act makes him liable to punishment; whereas relinquishment of a right entails no punishment. Hence if a person vested with the right of doing an act and having the choice to exercise it or not can be exempt from accountability for doing a legitimate act, then one under the obligation to do it will be the more exempt as he would be doing an act which is incumbent upon him to do.
In addition, article No. 7 of the Egyptian law contains a provision to the effect that the law of the land cannot prejudice the personal rights bestowed by the Islamic Shariah. As a matter of fact, if we take into consideration the obligatory aspect of the act in question the obligations imposed by the Shariah are also tantamount to personal rights. Let us take for example medical practice. It is obligatory for a qualified doctor and under the Shariah it is mandatory. But the Shariah at the same time provides for the right of the medical practitioner to wound his patient or cut off any part of his body. Killing of an apostate is an obligation of every individual and he is responsible to the law-maker for it but at the same time it also assumes the character of a right vested in the obligated person. Again, it is the duty of an executioner to kill a person condemned to death. But the execution of such duty also gives him the right to behead the person sentenced to death by decapitation. But we need not offer this explanation. We believe that all such provisions of the law as are repugnant to Islamic Shariah are null and void.
Quotation from: ‘Oudah, Adbul Qadir, Criminal Law of Islam, Translated by S. Zakir Aijaz, Kitab Bhavan, New Delhi, India, 1999 (Improved edition), Volume II. p. 258-262.
In Volume IV, the author revisits the topic of apostasy where he states that the apostate is open to homicide by any Muslim.
Adbul Qadir 'Oudah
An apostate is one who abandons Islam and embraces another religion. According to the Shariah an apostate is open to homicide. 1 Hence if some one kills him of his own accord he will not be accountable as a wilful murderer whether he kills
1. There are two reasons for declaring an apostate open to homicide:
1. An apostate enjoys security by virtue of his Islam before he abandons it. By turning a renegade he forfeits his right to security and thus exposes himself to homicide. Says the holy Prophet:” I have been commanded to wage a war against the people until they profess that Allah is the only object of worship and I am His prophet. If they acknowledge this, their life and property are sexism from me, except they owe some duty and for that they are accountable to Allah,”
2.According to the Shariah, the capital punishment prescribed for an apostate is the nature of a hud and not of tazeer. Says the Prophet (S.A W) Killing of a Muslim is warrantable on three grounds: Adoption of infidelity after embracing Islam, committing adultery after marriage aid committing homicide wrongfully.
Again, “Whoever renounces the Islamic faith kill him“. The Shariah does not admit of the remission of a hud or the deferment thereof. Hence one guilty of apostasy is open to homicide and its punishment is imperative. If some ore carries out the hud so prescribed and kills the apostate of his own accord, be is to be deemed to have taken life one subject to the Allah’s hud, just as he may have killed a married adulterer.
him before or after allowing him the option to repent. 1 for every excess in the state of apostasy is warrantable.
As a rule, killing of an apostate is the responsibility of public authority. If any one kills him without permission he will be guilty of transgression and will as such be liable to punishment. But he will be punished for the infringement of public authority and not for homicide in itself. This is the position of all the four schools of Islamic jurisprudence. 2 Imam Malik, however, holds a different view altogether. 3 According to him, an apostate is insecure (not impeccable) but his killer will be liable to tazeer and he will have to pay blood price to the Bait-ul-mal. He argues that the choice of repentance must be given to the apostate, for on turning an apostate he becomes an infidel. If any one takes his life, he kills an infidel and killing of an infidel is unwarrantable and the killer is under the obligation to pay the blood price to the Bait-ul-mal, which alone is the rightful heir of the infidel. According to his view, apostasy invalidates the right to the security of life and infidelity ensures this right. The discrepancy here is obvious which is enough to reject the opinion in question. It may also be asserted for the refutation of such a view that by virtue of being a Muslim one acquires the right to security, while infidelity invalidates it since an infidel acquires the right to security owing to an agreement of refuge, assumption of responsibility to protect, pledge etc., and as none of such guarantees of security applies to an apostate, he will not remain secure on turning an infidel.
The laws in force are at variance with the Shariah in that these laws do not provide for any punishment for abandoning one’s faith. The reason [is] that they are enframed on secular basis, hence logic demands that change of religion does not entail any penalty under such legislation. The Shariah on the other hand owes its origin to the religion of Islam and, therefore, it is quite natural that it lays down punishment for abandoning the faith.
The Egyptian law like other modern laws in force is
1. The jurists have laid down the rule that before executing the death penalty of an apostate, he should be given the option to repent. If he does [not] avail of such option, he must be put to death.
2. Al Bahrul-Raiq, vol. 5, p. 125; AL Iqna’a, vol 4, p. 301; Al Muhazzab vol. 2, p. 238; Muwahib-ul-Jaleel, vol. 6, p. 233.
3. Al Sharh-ul-Kabeer lil Durdeer, vol. 4, p. 271.
secular in nature and that is why there is [no] provision in it for the punishment of an apostate. But absence of such provision does not mean that apostasy is lawful and incurs no penalty. On the contrary apostasy under the Shariah is an offence punishable by death. The relevant provisions of the Shariah are still valid and cannot be suspended. No secular legislation can annul these provisions as has been explained in this book in the context of the ingredients of crime. Therefore, if any one kills an apostate he will not be liable to punishment for homicide inasmuch as he does an act warrantable under the Shariah and exercises one of the rights he enjoys. 1
1. The reader is referred to the portion of this book relating to the Exercise of Right and Fulfilment of Obligation.
Quotation from: ‘Oudah, Adbul Qadir, Criminal Law of Islam, Translated by S. Zakir Aijaz, Kitab Bhavan, New Delhi, India, 1999 (Improved edition), ISBN: 81-7151-273-9 (set), Volume IV. p. 19-21.
A Muslim who converts to another religion in an Islamic nation is in a very precarious condition, because he is liable to be murdered by anyone with impunity, including being murdered by members of his own family, even his own father or brother. Such a killing is looked upon as honorable, because it is sanctioned by Allah and it does away with the dishonor of a convert to Christianity who brings shame upon his Muslim family.
No secular legislation can annul these provisions as has been explained in this book in the context of the ingredients of crime. Therefore, if any one kills an apostate he will not be liable to punishment for homicide inasmuch as he does an act warrantable under the Shariah and exercises one of the rights he enjoys. — Criminal Law of Islam Vol. IV, p. 21.
Mohamed S. El-Awa
As a former Associate Professor of Law, El-Awa seeks to draw Islamic scholars away from classifying apostasy as a hadd crime. He argues that it should be classified as a ta’zir crime, meaning a crime for which the Qadi may exercise a discretionary sentence for a particular crime. Professor El-Awa admits that “the overwhelming majority of Muslim jurists classify the punishment for drinking alcohol and apostasy as hadd punishments.” So his voice of moderation is in the minority of scholarly consensus.
Nevertheless, he still views apostasy as a crime that requires punishment which also serves as a strong deterrent and warning to anyone else who may think of leaving Islam for another religion. It is obvious that apostasy laws create fear in the mind of any Muslim who begins to question Islam. The Muslims knows that he or she will be rejected, despised, and persecuted by family and friends if he or she decides to become a Christian. In some cases, he or she will face death itself. The strongest bond that holds the Ummah of Islam together is fear.
Categorization of the Punishments For
Drinking and Apostasy
(Shurb al-Khamr wa al-Ridda)
I. Traditional Islamic Law
The overwhelming majority of Muslim jurists classify the punishments for drinking alcohol and apostasy as hadd punishments, 1 and the Western scholars of Islamic law do likewise. 2 The Western scholars in fact follow the views stated in one or the other of the texts on Islamic law. But in order to conduct an objective study of these two penalties, it is necessary to consult the texts of ahadith, especially those compiled by jurists who concentrated their research on ahadith of a legal nature (ahadith al-ahkam), since both these punishments are prescribed in the Prophet’s traditions. The two punishments are not mentioned in the Qur’an, and the Prophet dealt with these crimes in different ways on different occasions. 3 It is therefore a question of understanding and explaining the relevant ahadith rather than of writing a treatise on a specific legal clause.
This appears to be a departure from the traditional approach to the various topics of Islamic jurisprudence. The traditional approach is to explain the law as it stands in the medieval legal manuals and to condemn any attempt to reinterpret the authorities and sources of the Shari’a, i.e., the Qur’an and the Sunna, on the grounds of the finality and exclusive authority of these manuals as the expression of the Shari’a. This, briefly, is the doctrine of taqlid, which was established as early as the mid-seventh century A.H. 4 This is a doctrine which has gained very wide support on the basis of the infallibility of the alleged consensus (ijma‘). Without going any further into this doctrine, we can say that it is becoming increasingly
PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY
clear that there is an urgent need to reinterpret the principles contained in the Qur’an and the Sunna, if any reform is to take place within the Islamic legal systems. 5 Such a view may be criticized as putting forward a description of the law as it ought to be, not as it is. Indeed, such a criticism is sound, but one cannot refrain from pointing out that the Islamic legal manuals are in some cases inadequate. Nevertheless, for those who may not like it, I should say that the views expressed in this chapter are by no means the innovations of an unauthorized student of Islamic law. Fortunately, authoritative jurists have mentioned them, if not explicitly, then at least by implication. But to return to our subject, we will deal first with the punishment for drinking and afterwards with the punishment for apostasy.
II. The Punishment for Drinking. [p. 44-49. skipped]
III. The Punishment for Apostasy
The Arabic word for apostasy is “ridda” or “irtidad,” which literally means “turning back.” The former is usually used to signify turning back from Islam to another religion or to unbelief, while the latter has this
PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY
meaning in addition to others; a person who forsakes Islam for unbelief or for another religion is called a murtadd (apostate). 46
The common view among Muslim jurists, as well as among Western orientalists, is that apostasy from Islam is a crime for which the death penalty is prescribed. The majority of the Muslim jurists, it has been remarked, classify this punishment as being in the hadd category. 47
It has already been noted that hadd punishments are punishments determined by the Qur’an or the Sunna of the Prophet, and that they are to be carried out if guilt is proven. Now in order to determine whether or not apostasy is a crime for which Islamic law has prescribed the alleged hadd punishment, one should consult the verses of the Qur’an, and the ahadith dealing with the subject, as well as the practice of the Prophet’s Companions, which indicates how they understood both the Qur’an and the Sunna in relation to the matter. In this way it can be seen whether what is commonly accepted among Muslim jurists is correct or not.
III. 1. Apostasy in the Qur’an
Apostasy is mentioned in the Qur’an in thirteen verses contained in different surahs, but in none of these verses can one find any mention of punishment to be carried out in this world. On the contrary, all that these verses contain is the assurance that the apostate will be punished in the Hereafter. 48 Some examples of such verses may be useful to demonstrate this fact. Surah XVI, verse 106 states, “Whoever rejects faith in God after believing in Him, excepting under compulsion while his heart remains firm in faith — but such as open their breast to unbelief, on them is wrath from God and theirs will be a dreadful penalty.” 49 This verse was revealed during the late Meccan period, and it is clear from the words that the apostate is threatened only with punishment in the next life.
In Madina, where the Prophet established his state shortly after his migration (hijra), Surah II was revealed. In this Surah the mention of apostasy was also accompanied by the warning that the apostate would be punished in the next world (verse 217). At Madina the Prophet also received the revelation of the third surah of the Qur’an, in which apostasy was again mentioned in many verses, but always with the declaration that the apostates would be punished, not in this world but in the next (verses 86-91). In yet another Madinian revelation, the Qur’an declared: “O you who believe! if one of you should turn back from his religion, then God
will bring a people whom He shall love, and they too shall love Him” (V: 54). In this verse the murtadd is certainly exempt from any sort of punishment in this life.
At the same time, one can say that the death penalty for apostasy — especially when it is considered as a hadd punishment — contradicts the Qur’anic principle law states in Surah II, verse 256, which proclaims “No compulsion in religion.” Ibn Hazm, to avoid this criticism, claimed that this verse had been abrogated and that compulsion is allowed in religion; consequently, according to him, the punishment for apostasy does not contradict the Qur’an. 50 However, this claim is invalid, since Qur’anic scholars have established the abrogated verses and this verse is not among them. 51 Accordingly, one can say with the Encyclopaedia of Islam that “In the Qur’an the apostate is, threatened with punishment in the next world only.” 52
III. 2. The Sunna and Apostasy
It is a common practice among Muslim jurists, when introducing their discussion of apostasy, to quote one or the other of the Qur’anic verses dealing with the subject. At the same time, the strongest evidence they use to prove that apostasy is a hadd-type offence punishable by the death penalty is that of two prophetic reports which we shall now examine along with the report about the group from the tribe of ‘Ukal to which reference was made in the first chapter of this study. 53
As for the report concerning the ‘Ukal group, some of the Muslim jurists claim that they were punished because of their apostasy. 54 The same view is held by some Western orientalists. Zwemre, in his book The Law of Apostasy in Islam, describes the case of the ‘Ukal as the earliest case of apostasy. He quotes Muslim concerning it, and comments that the text shows how “the earliest apostates were tortured by Muhammad.” 55
On the other hand, the prevalent view among Muslim jurists is that the case of this group of ‘Ukal and ‘Urayna was a case of hiraba (armed robbery) and it was for this crime that they were punished. 56 The text itself demonstrates this very clearly. It is true that most jurists classify them as apostates (murtaddun) and rebels against God and His Prophet (muharibun), but the term apostate came to be used incidentally or because the people of ‘Ukal and ‘Urayna, in addition to their having committed the crime of hiraba, also rejected Islam. In any case, it is universally
PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY
agreed that this incident has noting to do with the punishment ordained in Islamic law for apostasy. Accordingly, nothing can be inferred from this report to help in determining the punishment for apostasy.
Another Prophetic report commonly used in discussing the subject is the hadith transmitted by Bukhari, Muslim. and Abu Dawud: “The life of a Muslim may be taken only in three cases, i.e., in the case of a married adulterer, one who has killed a human being (qatal nafsan), crucified, Islam, forsakes his religion and separates himself from his community (al-murtaddu ‘an dinihi al-mufariqu lil-jama’a). 51 On the basis of this hadith the jurists maintain that the Prophet allowed the death penalty for a Muslim if he apostatized. 58 But this report was narrated by Abu Dawud in different words, in which the Prophet explained what he meant by “one who forsakes his religion and separates himself from his community.” In the latter version, such an individual is described as “a man who went out (from the community) to fight against God and His Prophet, and should then be put to death, crucified or imprisoned.” 59 In order to reconcile the words of this hadith with the words of the Qur’an (Surah V, verses 33-34), Ibn Taymiyya explained that the crime referred to in this hadith is the crime of hiraba (armed robbery). He holds that this is an explanation of the words in the former version, “one who forsakes his religion … ”
Accordingly, this hadith has nothing to do with the case of simple apostasy, i.e., apostasy which is not accompanied by fighting against God and His Prophet. 60 In other words, this report indicates that anyone who commits the crime of hiraba in fact separates himself from his religion because a Muslim would never commit such a crime. Again, the law for apostasy cannot be inferred from this hadith.
The strongest emphasis is laid on a hadith narrated by Ibn ‘Abbas in which the Prophet said, “Whoever changes his religion, kill him;” 61 it is primarily on the strength of this hadith that jurists based their view that an apostate should be sentenced to death. Their work on the subject generally 62 shows them to interpret the words, “Kill him,” as a grammatical imperative, sighat alamr, that is, as an order which must be carried out.
In his book, The Religion of Islam, Muhammad ‘Ali defended the view that Islam knows of no death penalty for apostasy unless the apostate joins forces with the enemies of Islam in a state of actual war, in which case he is killed not because of his apostasy but simply like any other fighter against Islam (muharib). 63 He supported his view by explaining that unless we apply this limitation to its meaning, the preceding hadith cannot
be reconciled with other hadith or with the principles laid down in the Qur’an. 64 Moreover, the wording of this hadith is very broad, including any change from one religion to another, implying that even a non-Muslim who becomes a Muslim, or a Jew who becomes a Christian must be killed. On these grounds Muhammad ‘Ali stated that the hadith cannot be accepted without placing a limitation upon its meaning. 65
This last statement is already agreed upon by the majority. All schools, with the exception of the Zahiri and some Shafi’i jurists, allow that a non-Muslim who changes from his original religion to any other is not to be harmed, while a Muslim who leaves Islam for any other religion should be sentenced to death unless he returns to Islam. 66 The Hanafi school puts another limitation on the meaning of this hadith by applying it to male apostates only. According to their view, a female apostate is not liable to the death penalty since she is not in any position to fight against Islam, which is the ostensible the reason for putting to death an apostate. 67
But these limitations on the meaning of the above hadith still do not lead to the conclusion of Muhammad ‘Ali, i.e., that an apostate cannot be put to death unless he is in a real state of war against Islam. A careful and objective study of the subject, avoiding the apologists’ view which influenced Muhammad ‘Ali, may lead to an entirely different conclusion.
IV. A View Concerning Apostasy
It has already been mentioned that nothing in the Qur’anic verses cited can be taken as a justification for the death penalty as a hadd punishment for apostasy. As for the Sunna, it has been said that one of the two reports concerned has nothing to do with the point in question. However, the other hadith, in which the death penalty was ordered for the apostate, was understood as a clear command prescribing the death penalty as a hadd punishment for apostasy.
The jurists have usually tried to avoid the execution of the punishments as far as possible, either on the principle of doubt (shubuhat) or through the law of proof. Yet in relation to apostasy they have extended the cases in which the punishment can be carried out, through broadening the words and acts which might be considered as formal apostasy, to an extent entirely beyond the actual meaning of apostasy, the changing one’s religion. 68
PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY
The jurists were led to this, I feel, by the emphasis placed on the question of faith by Islamic law and the feeling that, after changing his religion, an individual might become an example which could be imitated. Moreover, it is common knowledge among Muslims that nothing is worse than becoming a disbeliever after being a Muslim. The jurists were also influenced by the literal meaning of the report which ordered the apostate to be put to death. I will focus my inquiry into the punishment for apostasy on this last consideration.
To understand an Islamic legal clause, one should consult the authorities on the origins of Islamic law (‘ulama’ al-usul). The point to be sure of here is the meaning of the imperative mood (sighat al-amr) in Arabic generally and in Qur’anic and Prophetic usage in particular.
The jurists who have written concerning the subject have indicated that the imperative may be used in sixteen different ways; among them are recommendation, inimitability, threat, permission, and the literal meaning of the imperative, which signifies a command or an order. 69 And because in the hadith concerned the imperative mood is indeed considered to be a command or order, jurists have generally placed the punishment for apostasy in the hadd category. The imperative mood, however, cannot be said to be restricted to a single meaning unless there is factual evidence to support it.
The factual evidence in the case in question by no means supports the view that this imperative usage indicates an order. In the first place, the Qur’anic verses concerned did not prescribe any punishment for apostasy but simply declared it to be a great sin. Secondly, the Prophet who said these words about apostates never himself had an apostate put to death. There were some cases in which people apostasized after converting to Islam, but the Prophet never ordered any of them to be killed. 70 On the contrary, Bukhari and Muslim 71 related that “an Arab (a bedouin) came to the Prophet and accepted Islam; then fever overtook him while he was still at Madina, so he came to the Prophet and said, ‘Give back my pledge,’ but the Prophet refused; then he came the next day and said to the Prophet, ‘Give me back my pledge,’ and the Prophet refused. The Arab did the same a third day and the Prophet refused.” The report goes on to say that the man afterwards left Madina unharmed. This is a clear case of apostasy in which there was no punishment. It is clear from the words of the report that the bedouin was seeking to return to his old religion, or at least to leave Islam, but in spite of this he went away unharmed. 72
Another case of apostasy is reported in which the apostates were a group of Jews who had accepted Islam and then returned to their original
religion; the case is mentioned in the Qur’an III: 71-73. These Jews would pretend that they had accepted Islam in the first part of the day and show that they did not believe in it at the end of the day. This was done, according to the Qur’an, in order to undermine the confidence of newly-converted Muslims. At that time the Prophet was the ruler of Medina. Consequently, one cannot imagine how such people could have done this under a government which punishes apostasy with the death penalty, while they were not in fact, punished in any way.
This is the factual evidence relating to the hadith concerned, and accordingly, I understand apostasy to be punishable by ta’zir punishment and not by hadd. The words, “kill him,” in the hadith concerned, however, make it possible for the judge to go beyond the limits of ta’zir laid down in another previously-mentioned hadith, 74 the one in which the Prophet ordered a man found drinking for the fourth time to be sentenced to death as a ta’zir punishment. 75
In spite of the view that apostasy is punishable by a hadd punishment, that is, by the death penalty, there are jurists who consider its punishment to be ta’zir. This view was expressed during different eras of Islamic law. During the caliphate of ‘Omar, a man came to him from a section of the army which was fighting for Islam, and the Caliph asked him what had been done with some people who were known to have apostatized. The man replied that they had been killed, the requirement of the hadd punishment. ‘Omar then said that if he could have taken them in peace it would have been the best thing for him. The man asked ‘Omar what he would have done if he had taken them in peace, and the Caliph replied that he would have asked them to return to Islam and if they refused he would have imprisoned them. 76 Imprisonment is clearly not one of the hadd punishments, and it could not have been inflicted on these apostates except as ta’zir.
Among the followers of the Prophet’s companions, Ibrahim al-Nakh’i (d. 95 A.H.) and Sufyan al-Thawri (d. 161 A.H.) held the view that the apostate should be invited back to Islam and should never be sentenced to death .77 Baji, the distinguished Maliki jurist, made it very clear that apostasy is “a sin for which there is no hadd punishment.” 78 A sin of this sort can be punished only by a ta’zir punishment. Finally, Ibn Taymiyya stated categorically that the punishment for apostasy is a ta’zir punishment; it is or should be a severe punishment, but still it is in the category of ta’zir. 79
Moreover, the jurists who hold that the apostate should be sentenced to death do not all agree that this is a hadd punishment; they sometimes
PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY
call it hadd and sometimes not. 80 According to the Hanafi, Shafi’i, and Zahiri school, the death penalty for apostasy is a hadd punishment, 81 and, although according to the Hanbali school it is not a hadd punishment, still an apostate should be killed because of his unbelief (kufr). However, Ibn Qudamah, in Al-Mughni, did not categorize the punishment as ta’zir or as anything else. 82
The Islamic penal system recognizes three kinds of punishments: hadd (fixed punishment), qisas (retaliation), and ta’zir (discretionary punishments). The second is certainly out of the question here, and since it cannot be proved that the punishment for apostasy pertains to the category of hadd, it can only be understood as a ta’zir punishment. The preceding remarks about the reasons for claiming drinking to be punishable by hadd also apply here and need not be repeated.
To sum up, the Qur’an prescribes no punishment in this life for apostasy. The Prophet never sentenced a man to death for it. Some of the companions of the Prophet recognized apostasy as a sin for which there was a ta’zir punishment, as did some jurists. Actually, Islamic law considers apostasy as the most major sin and the limits for ta’zir are not, in its case, of binding force. Thus, a court may either sentence an apostate to death, imprison him, or prescribe whatever other punishment it thinks appropriate. Also, the law-makers of a Muslim community may enact whatever punishment they feel to be suitable for this offence.
V. A Survey of the Punishments for Drinking and Apostasy
The conclusion reached in the two preceding sections was that drinking and apostasy cannot be categorized as crimes for which there are hadd punishments. While both are sins which a Muslim is urged strongly to avoid, a ta’zir punishment is prescribed for both under Islamic law, and such a punishment, by its nature, is expected to vary according to the culprit’s personal character, the circumstances, the time, and the manner in which the crime was committed.
Some may question the basis for prescribing punishments for these two sins. In fact Islamic criminal law knows of no distinction between sin and crime, although such a distinction is well-established among Western thinkers and in the Western literature in both law and philosophy. But as the function of ta’zir in Islamic law is to provide a legal sanction for every sin for which there is neither a hadd punishment nor penance (kaffara), 84 the distinction between sin and crime, or between criminal action and moral guilt, no longer exists.
Accordingly, the use of the word sin (ma’siya) in this text and in Islamic legal writing as well, should be understood to refer to an action or omission for which there is no hadd punishment or penance, but which makes its doer liable to a ta’zir punishment.
This question, therefore, should be rephrased. Why, it could be asked, did the Prophet order penalties for some sins, while other were left to the discretion of judges or rulers? A simple explanation might be that he ordered punishment for the major sins in order to draw the Muslims’ attention to them, and so that those who committed them would not go unpunished. While the Qur’an proclaims that there will be a grave punishment for sins in the Hereafter, this might lead people, as it has led some, to say that nothing should be done about these sins in this world or through the state’s authority. To prevent this, the Prophet called attention to some major misdeeds and taught his followers that such conduct must be punished. Major misdeeds can be understood to mean two principal things: (1) an act or omission which may become so widespread among people as to threaten the public interest, and (2) an act or omission which is likely to harm a human being either physically or mentally, the spread of which is undesirable. In other words, any sort of conduct which threatens the existence or the well-being of the community, either directly or indirectly, may be considered a major sin in this sense.
The purpose behind punishing such conduct is merely to deter people from indulging in it; as was shown earlier, deterrence is one of the major purposes of punishment in Islamic law. 85 But in this context deterrence plays the role of a mere means, while in its earlier context it could be regarded as an end in itself. The kinds of conduct mentioned previously should not exist in a Muslim society; at the same time it is the right and responsibility of the government to safeguard the society from such conduct or such harm where these exist, and the imposition of penalties or punishments is one of the means by which society can be so safeguarded.
The protection of society is universally accepted as a purpose of punishment. 86 It assumes that crime is wrong done against the public interest, a threat of the preservation of order which should be prevented. On the other hand, it is for the good of the individual not to repeat this sort of action, even if the means of preventing him are necessarily painful.” 87
The protection of society is, I think, the purpose behind such punishments as those in question, i.e., the punishments for drinking and aposta-
PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY
sy, for Islamic law has prescribed deterrent punishments for such crimes or misdeeds in order to safeguard Muslim society from their consequences. 88 To support this view, one has only to demonstrate what effect these misdeeds can have upon the community and how they can harm its existence or well-being. For the sake of clarity, this topic is divided into two subsections.
V. 1. Drinking [Pages 58-61 skipped]
V. 2. Apostasy
Apostasy has been discussed less than drinking. The subject is completely unknown to Western writers; some orientalists have written about it, but only to explain the Muslim point of view, as they have understood it. It was dealt with in the Jewish Encyclopaedia, but merely as a matter of historical importance and without any attempt to explain the punishment’s rationale in Jewish law.
It has already been mentioned that Muslim writers hold two different views concerning it. The more common is that the punishment for aposta-
PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY
sy is the death penalty and that it falls in the category of hadd. A less common, but well-documented, view is that is a ta’zir punishment which may be as severe as the death penalty and which must, like all ta’zir punishments, be determined according to the particular circumstances of each case.
However, none of the supporters of either of these two views has tried to question the purpose behind prescribing a punishment for such conduct. The holders of the first view did not analyse its purpose because it was, according to them, a hadd punishment which need not be widely discussed but was simply to be accepted as the will of God. Those who hold the second view do so unquestioningly, because they concentrate on presenting evidence and proof of their point of view. Although in some of the Islamic law texts, especially of the Hanafi school, one can find some general comments about the reasons underlying the punishment for apostasy, such general observations do not contribute much toward achieving the aim of an attempted modern legal study.
It was assumed at the beginning of this section that the principle underlying the punishment for drinking and apostasy was the protection of society against the potential or actual harm of such acts. This has been adequately proved with regard to drinking. Whether or not it is also correct with regard to apostasy is the subject of the next pages.
Some preliminary observations are necessary here. The first concerns the widely held principle among Muslims that Islam provides a total system of life, starting from birth, extending throughout every moment of life. Matters such as infant-feeding and child-rearing, marriage and divorce, legacy and inheritance, bargains and contracts, war and peace, international relations, the treatment of minorities, and many other aspects are governed in one way or another by legal rules in the sources of Islamic law. Secondly, Muslims, and especially Muslim jurists, consider all these aspects as having the same importance as, let us say, ritual prayer (salat) and fasting. Hence, any problem which arise should be treated and solved in the way recommended by, or at least in harmony with, the related rules in Islamic law. 113 Accordingly, all aspects of Islamic law should be taken and accepted as a unit, one total and indivisible system. 114 With regard to these principles, some jurists hold that if the ruler (or the government) acts against some of the rules of Islamic law, he should be advised by the learned men to rectify the error by complying with them and to remedy the harm, if any, brought about by his actions. If he, or the government, does so the matter is over. But if
not, the believers should fight for their right to be governed in accordance with the divinely ordained rules of Islam. 115
A Muslim state should be shaped in this way and the various authorities in it should be given their power in accordance with, and not outside, the limits of the law of Islam. This principle is recognized as a fundamental one, to the extent that all conflicts and challenges which have been raised against the rules of one or another Muslim country have been connected with it. 116 Recently, the demand to adopt this principle was behind the conflict between the Islamic movement and some of the Arab governments. 117
It is quite natural, according to such principles, to consider loyalty to the laws of the community as a highly necessary condition for the enjoyment of the protection of the law and the authority of the state. At the same time, it is natural to consider disloyalty as a reason for justifying the deprivation of such protection. This was the explanation given for the punishment for apostasy by some modern writers on the subject. 118
The question which remains is how disloyalty to the Islamic law could be an act harmful to society and how punishment for it can be justified. For this point we can give two explanations. The first one relates to the case referred to in the Qur’an, 119 i.e., the case of the Jews who would pretend that they had accepted Islam at the beginning of the day, while at the end of it, they would say that they had rejected it in order to weaken the commitment of newly-converted Muslims. The second is the case of those who apostatize from Islam and join hands with its enemies in an actual state of war, or who unite people against Islam or the Muslim state and then fight against it.
Both cases are clearly harmful to the society. While the former encourages the people to reject the law and order of the society (which is based on its religion) by rejecting the religion itself, the latter involves the waging of war, or helping those who wage it, against the apostate’s own state. In both cases punishment is, I believe justified, in order to protect society from the harm brought by the apostate’s action. However in any other case, that is, in cases of simply change of one’s religion, punishment cannot be justified. One can understand, therefore, the Hanafi school’s view of punishing the male apostate only, leaving the female apostate unpunished, because she is not able to fight against the Muslim state, which the male apostate is able to do. 121 This view was understood by some as being based on the “potentiality to fight,” consequently, it was not accepted. But the fact is that it is based on what usually happens and not on the mere potentiality. The proof is that some of the Hanafi jurists stated that “an apostate
PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY
could not be punished for mere unbelief, but to prevent the mischief of war” which follows his rejection of Islam. 123
Finally, the concept of punishing a person who displays disloyalty toward his country is well-known in all legal systems. In modern legal systems, this may be called treason or conspiracy, but the concept is almost always the same. 124
To summarize, Islam is regarded by Muslims not as a mere religion but as a complete system of life. Its rules are prescribed not only to govern the individual’s conduct but also to shape the basic laws and public order in the Muslim state. Accordingly, apostasy from Islam is classified as a crime for which ta’zir punishment may be applied. The punishment is inflicted in cases in which the apostate is a cause of harm to the society, while in those cases in which an individual simply changes his religion the punishment is not to be applied. 125 But it must be remembered that unthreatening apostasy is an exceptional case, and the common thing is that apostasy is accompanied by some harmful actions against the society or state. A comparison between the concept of punishing those who commit treason in modern systems of law and those who commit apostasy in Islamic law would be useful. Assuredly, the protection of society is the underlying principle in the punishment for apostasy in the legal system of Islam.
1. See, for example, Kasani, Badai’ al-Sanai’, vol. VII, p. 33 ff.: Shirwani and ‘Abbadi, Hawashi Tuhfat al-Muhtaj, vol. IX, p. 166 ff.: ‘Uda, op.cit., vol. I, p. 648 ff., and vol. II, p. 496 ff.
2. See Coulson, History, p. 124. For drinking, see J. Schacht, An Introduction to Islamic Law, pp. 175, 179. For apostasy see S. M. Zwemre, The Law of Apostasy in Islam.
3. This is particularly applicable to the crime of drinking.
4. Shalabi, Usul al-Fiqh, pp. 22-31, and his Al-Madkhal lil Fiqh al-Islami, p. 138 ff.
5. A clear though brief account of this view is to be found in Coulson, op.cit., pp. 202-203. For the invalidity of the alleged consensus, see Shalabi, Usul al-Fiqh, op. cit.
PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY
46. Al-Mukhtar min al-Sihah, p. 190.
47. See for example, Shafi’i, Al-Umm, vol. VII, p. 156. ‘Uda, op.cit.. vol. 1, p. 79.
48. For example: II:217: III:90-91; and V:54.
50. Muhalla, vol. XI, p. 195.
51. Suyuti, Itqan, vol. II, p. 22-24.
52. Heffening, Encyclopaedia of Islam, vol. III, p. 736 under “Murtadd.”
53. See the preceding section dealing with punishment for hiraba.
54. See Fath al-Bari, vol. XII, p. 91, and Ibn Taymiyya, Al-Sarim al-Maslul, p. 319,
for this view and p. 322 for its criticism.
55. Samuel Zwemre, The Law of Apostasy in Islam, pp. 39-40 and opposite p. 64, where the writer presents a photocopy of a page from Muslim’s Kitab al-Sahih and comments on it; Goldziher, Muslim Studies, London, 1967, p. 16.
56. See Tabari, Tafsir, vol. VI, pp. 132-146; Ibn al-Qayyim, Zad al-Ma’ad, vol. III, p. 78: Ibn Hajar, Fath al-Bari, where he criticises Bukhari’s view.
57. Bukhari, vol. XII, p. 169; Muslim, vol. XI, with the commentary of Nawawi, pp. 89-90; Abu Dawud, Al-Sunan, vol. IV, pp. 22-23.
58. See Al-Sunan, the commentaries on Bukhari, Muslim, and Abu Dawud.
59. Ibid., vol. IV, p. 223.
60. Ibn Taymiyya, Al-Sarim al-Maslul, pp. 315-396.
61. Bukhari, vol. XII, p. 228; Abu Dawud, vol. IV, p. 222; Nayl al-Awtar, vol. VII, pp. 190-191.
62. I have said “generally” because there is at least one jurist who views apostasy as merely a sin for which there is no hadd punishment, as will be seen later.
63. Muhammad ‘Ali, The Religion of Islam, p. 596.
65. For details of his view, see Ibid., pp. 591-599.
66. Muwatta‘, with the commentary of al-Baji, vol. V, p. 281 ff.. Nayl al-Awtar, vol. VII, p. 193.
67. Sarakhsi, Mabsut, vol. X, pp. 108-110.
68. Examples of this may be found in any book of fiqh, e.g., Minhaj al-Talibin, vol.. IV, pp. 123-132; Khirshi’s commentary on Mukhtasar Khalil, vol, IV, pp. 304-316; and Shaikh ‘Ali al-‘Adawi’s commentary in the margin of the same text.
69. Baydawi, Minhaj al-Wusul, Ila ‘Ilm al-Usul, pp. 37-38; Nasafi, Manar al-Anwar fi Usul al-Fiqh, pp. 24-29; Khallaf, Usul al-Fiqh, pp. 194-195. Examples of these forms of usage may be found in the first authority.
70. Nayl al-Awtar, vol. VII, p. 192, where Shawkani indicates that all the reports
according to which the Prophet killed an apostate are not trustworthy.
71. Bukhari, with the commentary of Ibn Hajar, vol. IV, p. 77, and vol. XIII, p. 170;
Muslim with the comment of al-Nawawi, vol. IX, p. 391 ff.
72. Ibn Hajar, Fath al-Bari: also Nawawi’s commentary on the text of Muslim, vol.
IX, p. 391, where he quotes Qadi ‘lyad, a well-known jurist, as saying that this
bedouin was definitely an apostate. According to Zamakhshari, quoted in Fath al-Bari, the name of this bedouin is Qais ibn Hazim (probably al-Minqari).
73. Ibn Kathir, Tafsir, vol. I, p. 373.
74. See n. 40 of chapter 4, p. 104.
75. See what was said above concerning the punishment for drinking.
76. Nayl al-Awtar, vol. VII, p. 191; Ibn Taymiyya, Al-Sarim al-Maslul, p. 320.
77. Ibn Taymiyya, op.cit., p. 318. Mughni, vol. VIII, p. 126; Shu’rani, Mizan, vol. II, p. 134.
78. Baji’s commentary on Al-Muwatta’, vol. V, p. 282. Baji died 494 A.H.
79. Ibn Taymiyya, Al-Siyasat al-Shar’iya, p. 124.
80. See the Encyclopaedia of Islam, vol. II, p. 8927.
81. Sarakhsi, Siyar, vol. IV, p. 211; Shafi’i, Umm, vol. VI, p. 156.
82. Mughni, vol. VIII, p. 128.
83. See above, pp. 47-49.
84. ‘Amer, Al-Ta’zir, p. 36.
85. See above, pp. 29-52.
86. Hall Williams, The English Penal System in Transition, 1970, pp. 11-13, and
Thorsten Sellin’s foreword to Punishment and Social Structure.
87. Page, op.cit., especially p. 83.
88. Muslim writers have treated these two crimes as being among the offences of
hudud; hence what was said earlier about the inadequacy of their work (see p. 67) is applicable here.
PUNISHMENT IN ISLAMIC LAW: A COMPARATIVE STUDY
113, See, for example, Ibn al-Qayyim, Al-Turuq al-Hukmiya, pp. 13, 100 ff; Mawdudi, The Political Theory of Islam, Arabic translation, pp. 49–51.
114. Al-Shatibi, Al-I’tisam, vol. II, pp. 244-245.
115. Ibn Hazm, Al-Fisal fi al-Milal wa’al-Nihal, vol. IV, pp. 171- 176; ‘Uda, Al-Islam wa Awda’una al-Siyasiya, pp. 151- 153.
116. It was this principle which underlay the conflict led by some of the Shi’i leaders against the Ummayad and ‘Abbassid States, behind the conflict between ‘Ali b. Abi Talib and the Kharijites, and between the Wahhabis and the Ottoman Empire in the nineteenth century.
117. The outstanding example of this is the conflict between the Egyptian government and the Islamic movement known as the Society of the Muslim Brotherhood during the years 1954-65. For a brief but careful survey, see Hassan ‘Ashmawi, one of the foremost leaders of the movement, in Al-Fard al-‘Arabi wa’ Mushkilat al-Hukm, appended to his political play Qalbun Akhr Li Ajl al-Za’im. pp. 174-180.
118. ‘Uda, op.cit.. vol. I. pp. 534-538.
120. See above. pp. 122-123.
121. Sarakhsi, Mabsut, vol. X. p. 110.
122. Muhammad ‘Ali, op.cit.. p. 599.
123. Fath al-Qadir, vol. IV, p. 389; Sarakhsi. op.cit.
124. See Mozley and Whiteley’s Law Dictionary, under “Treason and Treason Felony, pp. 368-369. Also see the second book of the Egyptian penal code, Khalifa, Al-Nazariya’ al-‘Amma lil-Tajrim, pp. 250-253.
125. The above view is concerned only with the penal sanction for apostasy: it does not affect the imposition of civil sanctions such as disinheritance and dissolution of marriage, etc.
Quotation from:El-Awa, Mohamed S., Punishment in Islamic Law: A Comparative Study, Markazi Maktaba Islami, Delhi, India, 1st Edition 1983, Printing 2000, p. 49-56.