OPINIONS OF JURISTS
Our thesis that Islam imposes no secular penalty for simple apostacy having been conclusively established on the basis of the Holy Quran and the practice of the Holy Prophet, it is not necessary to have recourse to any juristic opinion on the subject. We are aware that a misunderstanding on this question arose in the midst of a certain section of the jurists on this subject. Yet it is of interest that the Hanafi jurists at the very start were firmly of the view that simple apostacy was not subject to any secular penalty.
The well known compilation Hedayah sets out: The Holy Prophet forbade the killing of women for apostacy, because the principle of punitive regulations is that in such cases the penalty should be left for the hereafter, as a penalty imposed in this life would contravene the purpose of apostacy being a trial the calling to account for which pertains to God alone. This can be departed from only when the object in view is to restrain the person concerned from continuing hostilities. As women, by their very nature, are not capable of fighting, a woman apostate cannot be punished in any case.
Another well known authority on Hanafi jurisprudence sets out: The execution of an apostate is permissible only when it is designed to restrain the apostate from continuing his aggression; it is not permissible merely on account of his reversion to disbelief, for the punishment of disbelief is severer than execution and can be imposed only by God Almighty (Fatehal Kadeer, Val. IV, p.389).
Another authority states: There is no penalty for disbelief, because the penalty for it is severer than execution and can be imposed only by God Almighty (Chalpi's Commentary on Fatehal Kadeer, p.388).
Again, it is said: There is no execution except in the case of fighting, for it is not permissible to execute anyone merely on the ground of disbelief (Inayah, p.390).
The direction attributed to the Holy Prophet: Execute him who changes his faith; has been interpreted as meaning the execution of a combatant disbeliever (Fatehal Kadeer, Vol. II, p.580).
The advocates of the death penalty for apostacy claim that their thesis is supported by a unanimous consensus of the believers and that no one has ever questioned it. Their claim is utterly untrue. We have just shown that leading jurists of the Hanafi school held to the position to which we adhere, that simple apostacy is not punishable with death. It is only a fighting apostate who is subject to that penalty on account of his rebellion or treason and not on account of his apostacy. In addition there have been outstanding scholars in Islam who have upheld the view that we maintain, among them are the great figures of Hafiz Ibn Qayyam, Ibrahim Nakhai and Sufyan Thauri, the last one a great Imam of hadees.
It is asked that if we are right in our thinking, what led some of the past divines to proclaim that mere apostacy was punishable with death? This mistake arose in the same way as the mistaken view that Islam directs the assassination of every pagan and idol-worshipper. As some people misconstrued some verse of the Holy Quran, without regard to its context, and assumed that it had reference to all pagans, and in consequence declared as many as four hundred verses of the Holy Quran as abrogated; in the same way, some divines were misled by such narratives as mentioned the execution of an apostate or some apostates, and applied them erroneously to the case of every apostate and ignored the fact that the narratives relied upon by them related to apostates who had taken up arms against the Muslims. They also ignored the fact that in earlier times an apostate immediately went and joined the enemies of the Muslims and fought along with them against the Muslims. Such a person spelt even greater danger to the Muslims than their declared enemies as he was aware of the condition and circumstances of the Muslims and could prove of great assistance to the enemy. Whenever such divines read about the execution of an apostate, they immediately concluded therefrom that apostacy was punishable with death, without inquiring into the circumstances under which, and on account of which, the apostate had been executed.
They discovered that the apostates had been fought against in the time of Hazrat Abu Bakr and Hazrat Ali, may Allah be pleased with them, and without inquiring into the circumstances which had necessitated the fighting, erroneously concluded that every apostate was punishable with death. It is, however, fortunate that though some divines proclaimed that simple apostacy was punishable with death, several divines refused to subscribe to this view, and stated plainly that Islam had not appointed any punishment for simple apostacy or for simple disbelief and that both will be accounted for in the hereafter. In this life, according to them, an apostate is liable to execution only on account of fighting against the Muslims or of creating such disorder as is punishable with death.
To sum up: Apostacy means a plain and clear repudiation of Islam by a professing Muslim. It is only the profession or clear conduct of a person himself that makes him an apostate. Doctrinal differences, however grave, cannot be declared by anyone as constituting apostacy.
Simple apostacy, which is not aggravated by rebellion, treason or grave disorderliness, is not punishable in any manner in this life. Islam guarantees complete freedom of conscience and of belief. A disbeliever and a simple apostate stand in the same category; neither of them is liable to any penalty in this life. Were it otherwise, Islam would be accounted a faith that seeks to compel conscience, a vain and futile purpose which is impossible of achievement. Compulsion and force might make people hypocrites, but cannot make them believers.
Islam possesses the great distinction and the high merit that its scripture plainly, clearly and emphatically affirms full freedom of conscience and belief. The writer recalls that a quarter of a century ago a very learned and highly intelligent Dutch professor who taught at the University of Amsterdam told him that he had been convinced of the truth of Islam on reading in the Holy Quran: There shall be no compulsion in religion, for guidance and error have been clearly distinguished (2:257). Since then, he had continued a sincere professing and practicing Muslim.
Those who, on account of their own mistaken interpretation of certain situations in the early history of Islam, fly in the face of the clear and emphatic affirmations of the Holy Quran, and the practice of the Holy Prophet, peace be on him, in effect repel people from Islam and by their erroneous affirmations, quite unconsciously, hold Islam up to ridicule and invite the charge that Islam cannot be a true faith. By adhering to their preposterous view they render no service to Islam, but are guilty of grave disservice to the greatest of all faiths. May Allah, of His grace and mercy, enlighten their minds and rescue them from persisting in the support of a false and harmful fallacy.
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