Apostasy ( Irtidâd ) in Islamic Jurisprudence ; is it a Creedal or a Political Crime

This article aimed to explore the nature of the penalty of the apostasy (irtidâd) to what extent it is creedal or political crime, with particular reference to Hanafite penal law which served as the law of Islamic world for a period of a millennium. In expounding this law I have chosen the text of jurist-author of this School, Ibn al-Humâm (d. 861/1457) which offered a mere document for the subject-matter. The analysis in this essay exposed that Hanafi juristic conception considered the act of apostasy not a creedal but a political offence. Thereof the ratio legis (‘illa) of death penalty imposed to the apostate (murtad) is not his commitment of disbelief (kufr) but his renouncement of the social, legal and political authority and system of the state and abandoning his membership of Muslim community after once accepted it. Consequently he has been accounted as a potential threat as a warring enemy to the survival of the Muslim community and its state. I understand that the jurists did not give the state legal authority to interrogate and punish the disbelief of its subjects. Belief of the individual rests between him and God.


Introduction
This article investigates and discovers that whether the crime of apostasy in the conception of Hanafî juristic literature has creedal or political nature.Although the concept of political crime has come into circulation in academic realm after 1830's it has always been existent since the beginning of family institution in ancient times.Political crimes, generally, have been defined as any behavior perceived as a threat, real or imagined, to the ruler, the state and its political system's survival including both overt violent and non-violent acts.My dealing will only be with the crime directed to the social, legal and political system, not the crimen majestatis that is the crime against the ruler.
The Islamic state, as the common characteristics of the West in the Middle Ages, is based on religion, that is it is the state of the believers.Hence the role and the duty of the state and the society in Islam have been clearly defined by Islamic jurisprudence.In it there is no clear-cut differentiation between law, politics and religion.Therefore the political and the religious crime are interplay, concurrent, and intertwined.Where there is no clear separation between the state and the prevailing religion, the edicts of the religion may be prescribed as the social, legal and political system.The jurists editing on Islamic law, in fact are political theorists as well, and the juristic books are valuable sources on the state and its political system, and, as far as the apostasy is concerned, the political crime.
Sunni Muslim jurists especially Hanafites concerned themselves acknowledging religion's penetration into the intra-political sphere, hence an individual's decision to abandon his Muslim identity affects his political stance.If a person accepted the religion of Islam and then was seen to have departed from it, it means that he refuted and rejected the political system of the country he lived because the political system of it rested on Islamic religion.With the topic of apostasy (irtidâd), will help to find out the political characteristic feature of Islamic law generally, and Hanafî law school in particular, a madhab has been officially adopted henceforth in the government for over a millennium during the Turkish Dynasties, especially the Saljukids.
What evoked me to do such study is my preliminary knowledge that there are no penalties implemented in this law related to the purely creedal and religious, that is ritual offences such as not performing the prayers and the fasting, and the ruler even if he be a sinner (fâsiq) must be obeyed and does not forfeit his political rule.The reason the apostate is liable with death penalty corroborates our presumption.By taking over the ratio legis ('illa) in persecution of the apostate, that is to prevent his harm to the Muslim state and its community, I can construe that this school's doctrine insinuated that if his assumed harm could be prevented without killing him, his life can be spared.
I have chosen one of the outstanding Hanafi author-jurists, Ibn al-Humâm (d.861/1457) (IH onwards)2 as our figurehead for the reason that he is occupying the place almost in the middle of the millennium encoded between beginning of the formulation and end of this jurisprudence, a system was more or less uniform and no longer to be modified and fresh interpretations to be admitted, though each jurist exhibited some peculiarities in ramifications.
IH followed the footsteps of the predecessor jurists established the traditional pattern, and he As the commonplace of the jurists of Islamic schools, the Hanafi jurists have also maintained, as it is as a whole, the law of apostasy as its framework had been conceptualized, formulated and established from the outset in the second century of Islam.No attempt has been tried until the modern period to question and to amend or to develop it, much like the other punishments (hudûd) such as the theft, slander and fornication.This may be because the social and political system of Islamic world based on religion has not undergone major change and the scholars responded to this socio-political situation.IH thereof put forward the established general legal position of apostasy and apostate (murtad) of that madhhab, thereof is not innovatory in subject matter, its structure and juristic methodology.
For the term irtidâd has been defined by the jurists as "deserting the Islamic religion after once having professed it", has no relevance whatsoever with change or freedom of religion.
As a well-known fact, as far as religious freedom is concerned for non-Muslims, Islamic law conferred especially for the Jews and the Christians, that the People of the Book, as protected minorities (dhimmî) lived within a Muslim state, the religious freedom for them to practice, as long as they submit to its political authority and do not pose hostility to the community and political system of Islamic state.The most important element in the development of the law of apostasy in the Hanafi jurisprudence is the legal reason or ratio legis ('illa) to inflict death penalty to the apostate and the type of claim (haqq) of this crime demonstrated the characteristics of apostasy that it is a political crime.

I-Political Dimension of Apostasy
IH discussed the problematic of apostasy under the title named "Bâb Ahkâm al-Murtaddîn" meaning the verdicts or judgments about the apostates.He did not prefer the terms of ridda or irtidâd, the verbal noun which the active participle of it is murtad, the apostate.I assume he preferred the term of the culprits not the institution.His definition of apostate is that "whoever turned (converted) from the religion of Islam" (p.307).As far as I can deduct from the text according to IH the application of the legal term "apostasy" is based on mainly three basic conditions.First the apostate had become a Muslim; secondly there the renouncing Islam had to openly professed (abdâha); and thirdly not to repent after he is asked to do so, and his doubt accrued on him about Islam has been resolved.These three necessary criteria gained general acceptance within Hanafi and also Shafi'î schools, (see Griffel 2001: 349).The paraphrase of idhâ irtadda al-Muslim 'ani'l-Islam, that is when a Muslim turned from Islam, and the verb abdâhâ (p.307), significantly exposed that it is a prerogative of the Muslim individual to abandon his belief in Islam, nobody else is entitled to excommunicate anybody even if he secretly or openly disbelieved.
The prescribed penalty for a male apostate is death.There is no distinction between a free and a slave male apostate, both are equally subject to death penalty.(p.308).The legal reason to kill the apostate is also depicts the nature of the offence of apostasy.The reasons and objectives of the punishment are as follows: In conjunction with punishing the apostate Hanafî tradition permitted reference to social and political conditions of welfare (masâlih) in discussion of juristic details.In other main madhhabs' tradition by contrast, and as purely conceptualization of belief, it was required that justification of God's law be by reference to Qur'an and Hadith, no matter is the welfare.Hence their law has the appearance of being completely free from social and political influence, being related only to God's word and prophetic precedent.(Calder, 1986: 40).Masâlih (sing.maslaha) etymologically has the meaning of interest or welfare, benefit or utility to the community, which amounts to utilitarianism.It derived from the juristic methodology of istislâh, supplementary to the revealed sources.(Kerr, 1966: 80).Maslaha has overtones of natural law; revelation and reason are mutually corroborative, this is so for every revelation, consequently is a principle precept constitutes the core of the apostasy so as to be accounted as a punishable crime.
IH also employed the istislâh or maslaha as one of the methods of reasoning of Usûl al-Fıqh (Methodology of Law) in making his legal decision regarding the legitimizing the punishment of the apostate.According to him (undoubtedly according to the religion of Islam), all the punishments, in principle, prescribed by Islam in this world are related only for the human masâlih which ought to return to the Muslim community in this life, such as the retaliation (kısâs), penalty of slander and drinking alcohol, adultery and theft have been prescribed in order to protect the lives, the chastity, the minds, the siblings, and the properties.Henceforth the death penalty in the apostasy (ridda) becomes incumbent (p.311).IH explained that the reasoning in the prophet's (and also Qur'an's) ordinances based on maslaha for the community and alluded not for the religion or for God.I understand from IH's discussion on apostasy that the ordinances of Islam are motivated by concern for men's welfare and avoidance of harm to them.It means, no doubt, that God precedes the welfare of His creatures over everything else.
The Hanafi jurists, when they thought on the Islamic law, though it is divinely revealed, they thought as if not revealed by Allah, instead they have taken the maslaha of the Muslim community into account and consideration.Maslaha criterion means that Islamic law, as far as the Hanafites concerned, is changeable as it requires, because, according to their juristic conception, God based His ordinances on the maslaha.The death penalty for apostate has been prescribed by Islam is for the worldly interests and welfare of the Muslims (maslaha) and of their state.
The legal reason why the apostate deserved the death penalty put forward the definition of enemy of Muslim state.The apostate as soon as converts from Islam he becomes a kafir and turns into a warring enemy to the Muslims.Islamic law classified, in general, the disbeliever (kâfir) as an enemy on the pretext that he is a potential harm giver to Muslims with making war against them.For that meaning, in principle, disbelief (kufr) is the legal permissive factor (mubîh) for a disbeliever's blood to be shed by Muslims (p. 310).Apostate is an internal enemy subject to the treatment practiced to external enemy.For that reason, I assume, the judicial discussion regarding the apostasy has been placed within kitâb al-siyar; the chapter of international law.Henceforth the legal reason in killing an apostate has been put forward is the repulsion of the assumed enemy's harm (li-daf'i şarrih) to the Muslims.The assumed harm of apostate obviously is physical type incurred by waging war against Muslims with weapons.To prevent his harm to the Muslims can only be achieved through the ways either by killing him or he reverted to Islam; the best way is Islam (p.308).That is to return to the patriation of Muslim country.The statement depicted that Islamic jurisprudence in prevention of the harm of someone, only two ways recognized; Islam or killing him.
IH clearly pointed out that the death penalty on apostate has been imposed not due to his apostasy as an act of disbelief (kufr), but to protect the Muslims from his harm, because its penalty in the side of Allah is greater than that.Thus the punishment is specified with from whom the warfare comes, he is the man (p.311).Whoever renounced Islam by verbal confession loses the status of Muslim and automatically been expatriated from the Muslim community and reverts to the status of enemy.I understand from the text that the mission of the jurists is to defend sociologically the Muslim community and the state; the world of Islam, but not the Islamic religion.A question could be asked whether this is a collective or individual apostasy, because the jurists did not distinguish between them (Ahmad 2007: 51).
However it is not clear in the text that IH distinguished the punishment that applies to collective apostasy, the general language of the definition seems to address the individual apostates, and makes no legal regulations for collective apostasy, such as punishing it by war.
For believing meant membership of the community, male apostate has been considered as a definite enemy who creates harm to the Muslims as being a warrior against it.Judging by this discourse it is obviously construed that Muslim jurists were aware of that killing a person due to religious and also creedal reasons is abhorred.They articulated this awareness by considerable stress laid on the ratio legis of daf'al-sharr in killing the apostate so as not due to his disbelief.However paradox existed, unambiguously deduced that, in essence, and for at that time, a Muslim renounced the political system of Islamic state has no right of life or freedom within Islamic state no matter the apostate is a man or a woman.This means that Islam does not permit its enemies to live in its territories.Islam's enemy means enemy of the Muslim state and community.It can be described as the enemy-free country.The criterion for enmity is to reject Islam.Here Islam means political system, not the religion.Henceforth apostates have been accounted as enemies of the Muslims, not of the religion.Although the crime rejecting the political system of the Islamic state has been named with the religious terminology of apostasy, the legal reason for the punishment of it has been prescribed political.This is because, as I presume, the jurists did not like, and are not in favor of, to punish one for religious or creedal offences.This conception is evidence for that the Hanafi juristic intellectuality, in the Middle Ages reached to the comprehension of that religion is a matter of conscience.
Thereof punishment of the murtad with death penalty is not for he committed an act of disbelief (kufr) that is an offence committed against nor God's sovereignty or authority and commandments but for renouncing the political system and abandoning the membership of Muslim community of the state, and as a consequence the threat he posed to the Islamic community.Henceforth only the male apostate is legally liable to the death penalty, not the woman apostate.Therefore apostasy has meant social and political treason, but prohibited by the jurists on the precepts disguised with Islam on which the social, political and legal systems of the state rested.This thought embedded the secular source of the legitimacy of the state.
Hanafi law in general, argue that an apostate woman as the penalty should not be put to death but instead, to be imprisoned for life until she returns to Islam or dies (p.310).IH extracted the legal reason in sparing her life, from the reasoning (ta'lîl) in a prophetic hadith.He expounded that in this hadith the prophet prohibited the killing a woman apostate with regard by reasoning that the woman physically is incapable of making war and consequently does not give harm to the Muslims (p.311).The legal reason put forward for the justification of the legitimacy of her imprisonment, in this case, is purely juristic, that she refrained from fulfilling the claim of God (haqq allah) after once she has accepted it, she is imprisoned as the case for an offence of the huqûq al-'ibâd, the right of individual, God; state (p.311).Sa'y bi-l fesâd has been accounted as an offense against the public order but she is imprisoned as a consequence of private claim (see Coulson 1990: 124).In this case, the state is treated just like any individual person.It must be understood here that the state personified with God and resembled to the individual in having rights on its citizens, and here the right of God must be the obedience to Him; to the state which she once accepted it with her free will but later on she transgressed it by not paying His right she had obliged herself.Here IH points out that the relation of the individual with the state as a contract on mutual basis between the citizen and the state which creates mutual rights to be claimed by the rightful and to be paid by the offender.
In Hanafîte juristic tradition, as far as IH expounded, I have seen that he distinguished the female leader apostate from the follower or ordinary female apostate."If the female apostate has a thought and followers, that is; she is a philosopher or a leader of a faction, and is propagating the heresy (sa'y bi'l-fesâd), she is to be killed.Killing her, even in this circumstance, is not due to she committed the offence of apostasy but for she strived to disseminate the heresy on the earth (p.311).Heresy here may mean renouncing the political system of the state.We see that the jurisprudence perceived it threatening if individuals advocate change to the established order, or argue the need for reform of long-established policies, or engage in acts signifying some degree of disloyalty.As IH cited, according to other major three madhhabs, (also see Zwemer, 1924: 41) namely Shâfi'î, Hanbalî and Mâlikî the female apostate, in no way, must be persecuted with the death penalty (p.310).The difference of opinion amongst the madhhabs emanates from the treatment of the crime of apostasy either political or an offence of belief.
Another evidence corroborates the idea that apostasy is not a creedal crime is the classification of the huqûq, the rights or claims.Hanafite law recognized two distinct categories by which it classified claims and liabilities of different legal persons.One is the huqûq al-'ibâd, the legal claims of men, comprising the claims of the individual private legal persons against each other.The other one is huqûq allah, the legal claims of God, which comprise the claims of state against the private legal persons.The punishment of hudûd crimes fall within this category, that is the claim of God.As it has been explored from IH's text that irtidâd offence has been incorporated into hudûd, that has been considered as part of criminal law and to be haqq allah, the claim of God.Therefore apostasy meaning rejecting the obedience to the political system of the state which makes it clear that the state and religion represent absolute claims.The reason why the persecution of the apostate falls within the claim of government is that its primary function is to protect its community.
When huqûq allah is meant to mean worldly political matter, it is expressed with huqûq al-'ibâd, as has been in the discourse of legal reason in imprisonment of the female apostate as she violated the claim of the state (p.311).As I understand from the text that the terminology of Allah has twofold meaning, that is legal and individual personality.One is the state which oversees the political matters in this world the other one is real as deity deals with the creedal sides of the matters in the next world.The Islamic state is considered to be the trustee and the executor of the claims of God, the huqûq allah in the meaning of the claims of state and interpreted as representing the public interest (masâlih al-'âmma) or the interest of all Muslims (Johansen, 2001: 299) pertinent to this world.IH laid considerable emphasis on that in principle the essence in the punishments is to adjourn them to the world of punishment (dâr al-jaza'), it is the next life or the next world (dâr al-âkhira).In order to substantiate this discourse he held that surely next world has been created for the punishment for the deeds performed in this world.Henceforth this world is the place for the deeds and the next is the place for their recompense (jazâ').(p.311).This reasoning could be extended as to explain, however it might be implicit, that in this world there is no punishment for the creedal dimensions of the crimes, because in religion punishment, in fact, is in the authority of God and henceforth its place is the next world.Then follows the question of why the governments exert punishments in this world?The answer has been rested completely on the reasoning according to one of the methodology in Usûl al-Fiqh of maslaha, or salâh/istislâh i.e., public interest.

II-Creedal Dimension of Apostasy
I do not go into the various theological discussions, definitions and concepts on the relation between Islam and belief (imân) upon which the schools of fiqh and kalâm were divided, which remains outside the topic of this essay.Islam, as Wensinck has rightly put it, is external, faith belongs to the heart.(Wensinck, 1922: 23) God alone judges man's hearts and also his belief.A somewhat vague and may be nominal distinction has been made between Islam and imân in connection with the ratio legis in punishment of the apostate.İman, here then is the inner, hidden reality of Islam.However belief (îmân) is a part of Islam, they do not seem synonymous in IH.Kufr may be a sin.The penalty of a sin can only be imposed by Allah in the hereafter.The creedal (îmân) dimension of the manners, as is evident from the text is a matter of attestation by heart or conscience (tasdîq bi'l-qalb) which left between the individual and God (also see İbn al-Humam, 1979: 285 ff.), and have been formulated with a juristic dictum or a legal maxim by the jurists in the paraphrase of "baynahu wa baynallah".
IH devotes a special stress on this principle which is sufficiently instructive in that it clearly reflects that the creedal dimension of apostasy is in concern of Allah in the next world, not of the political rulers in this world.
As is the case for zindîq (p.309), a generic terminology is to describe secret apostate which IH inherited and used from the juristic framework previously established.He seems to tolerate the clandestine apostasy as long as it is not proclaimed publicly.Religion deals with inward confession, and politics deal with only outward profession.In his opinion the only criterion for distinguishing between a Muslim and an apostate is the public profession of Islam by pronouncing the most basic Islamic creed.Whosoever pronounces the shahâda, that is confesses his belief in one single God and in Muhammad as His messenger as the source of political power, and acquaintance (tabarrî) from other religions, that is the basis of the political system of the state, ought to be regarded a Muslim (p.309), and the public profession to Islam secures the life of assumed apostate.This juristic discourse expounded a very neatly intertwined example for interplay of religion and politics and at the same time for the dichotomy between them.
In order to be accounted juristically according to IH the apostasy must be publicly uttered.I must assume that concealment in the apostasy is also a good tenet to indicate that it is not a creedal but a political crime because as long as someone conceals his apostasy he eludes any punishment.In this case his position reverts to, as formulated with a juristic dictum or a legal maxim, "between him and Allah (baynahû wa baynallâh)".Another provision, in conformity with the classification of huqûq, which substantiates the opinion that apostasy is a political crime, is the matter of the repentance (tawba) demanded from the apostate.In the discussion of whether the tawba of the apostate should be accepted, it is said that the political authorities are authorized to accept it in the worldly matters (ahkâm al-dunya) not in the religious ones which they are between the individual and Allah (baynahu wa baynallah).That is for political dimension of it, the tawba should be accepted, but what of between him and Allah, it can only be accepted by Allah in the next world.In accordance with the proclamation of apostasy publicly the repentance also meant the proclamation of his return to Islam publicly.That is after the apostatizing he still has the chance to survive by the repentance in front of the political authorities to return to Islam, if he does so, he should be pardoned and not be put to death (p.309).I can construct that if the apostate says that, "I have repented secretly (after once disclosed his apostasy) as a matter between me and Allah," it should not be seen sufficient, and thus is not to be accounted effective.We can extract the verdict here that acknowledgement of Islam by a person is the acceptance of the political system and authority of the state.The public utterance of man's faith or repentance from apostasy protects one's life no matter he is a clandestine or factual apostate.

Conclusion
The term of "Islamic religion" in the text is a name may cover Islam's commandments concerned the two worlds; this world and the next and consequently the politics and the creed of Islam.Islam incontestably signifies twofold aspects; the creed and the politic, social and legal system of a country.As Rosenthal has correctly explored, Islam is both a religious and a political institution in one (Rosenthal, 1973: 17).The emphasis has been placed on Islam as the organization and self-defense of the community which is its expression, and much less on the inner personal values which the etymology of the word connotes (Cantwell 1964: 75-108, quoted by Gardet, 1969: 173).
It is obvious that according to IH political dimension of Islam is obedience, submission and surrender to God.The act of surrender to God is therefore expressed by obedience to the state and its political system and social behavior prescribed by the law.Therefore he distinguished between the political and creedal sides of the citizens' behaviors and the deeds.In general, it should be clear that the Hanafî jurists were primarily interested in and worked out the mundane political dimension of the criminal law to be dealt with government.The text depicted that irtidâd is an offence of the right of the state, that it is a political crime, not a religious or creedal one.Therefore it is punished by the state in this world.They left the creedal dimension of apostasy to the next world.However, in theory, God is the absolute and ultimate sovereign and ruler of the state, the punishment of the religiously disbeliever of Him has been confined with the next world to be imposed by Him, but the persecution of the crime rejecting the political system of the state, the apostasy, has been rendered in this world by His vicegerents.Consequently it is the public interest which legitimated the killing of the apostate, not the sin of the disbelief he committed.After all, I rightly and deductively adduce that the basis of the legal and political system of Hanafî state is Islam but not religion.This concept leads us to believe that religious or creedal side of Islam is reduced, in the final analysis, to a position subordinate to its political dimension.Here we, also, detect the rationalization and desacralisation of the law by reconciliation between Islam and politics.This also is an ascertained sharp discrepancy between revealed ideal and political reality, faith and practice.The juristic discourse on the legal reasoning on the provisions in the law regulating the apostasy exposed its characteristics that it is a political crime not a creedal one.
If the apostasy was a crime of faith its punishment would have been left to the next world, the apostate to be punished by God or forgiven, as a matter between the individual and God; baynahu wa baynallah.
Although the justification for not imposing death penalty to the female apostate rested upon the legal reason that she is physically incapable to give harm to the Muslims by warring but she is to be given life imprisonment.Why is she to be imprisoned then?On this point IH's reasoning is somewhat unconvincing and a jeopardy.How can the punishment of imprisonment be justified, not the death penalty, as a necessary penalty if she is not posing a threat to harm the Muslim community?This judgment bares a clear legal crux which conceals the opinion to spare the male apostate from death penalty.Because if the legal reason for not killing the female apostate is that she is not accounted within the actors who can give harm, and killing the male apostate is for he gives harm to Muslim community, then the male apostate should neither be penalized with capital or corporal punishment if his assumed harm be prevented through any kind of measures, such as imprisonment.This paradox in legal reasoning on the persecution of apostate based on, may provide a loophole for the amendment of the death penalty imposed on male apostate in the future.This evident depicts that the Hanafî jurists saw their primary task as the guardianship and protectorate of the goodness of the community by upholding and enforcing the law, not goodness of the religion of Islam.Thereof the prescribed penalties for the crimes are not for the sins which are confined between the individual and God.Contrary to the common assertion by the Western and Muslim scholars, the aim of Hanafi jurisprudence is not to protect the religious values of Islam but to maintain the welfare and the survival of the Islamic state and its community.Judging by the nature of the Hanafite penal law of apostasy I can correctly assume that it is the most liberal and more suitable than the other major three madhhabs, and seems apt to accommodate and adapt itself to the changes of the time.With the change in the conception of the legal, political and social system of the state by basing them on the criterion other than religion then offence of apostasy can be excluded from being a crime by violation of haqq allah.
too has been followed by his successors.Thereof he demonstrated the fundamental nature of Islamic jurisprudence before and after his period.He was a commentator on Central Asian juristic compendium named al-Hidâya of al-Marghinânî (d.593/1197), a commentary on jurist al-Qudûrî (d.428/1027)'s opuscule al-Mukhtasar and also al-Matn.This chain goes back down to the founder of Hanafi madhhab, Abû Hanîfa (d.150/767).