Home > Religious Freedom > Defending Asia Bibi: The Hanafi Madhab, Blasphemy, and Legal Reform in Pakistan

Defending Asia Bibi: The Hanafi Madhab, Blasphemy, and Legal Reform in Pakistan

Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

— Section 295-C of the Pakistan Penal Code

Asia Bibi is a 30-year-old Pakistani Christian, and mother of five, who in 2010 was sentenced to death for blasphemy under Section 295-C of the Pakistan Penal Code. She remains in jail near Lahore, awaiting appeal.

Promulgated in the 1980s under the Islamic-driven reforms of General Zia-ul-Haq, hundreds of Pakistanis from all faiths have been tried under the law. However, Asia Bibi’s conviction, and the events that followed, have brought the issue to national prominence. In early 2011, Punjab governor Salman Taseer, and Minister for Minorities Shahbaz Bhatti — both vocal critics of the law — were assassinated, themselves accused of blasphemy for having opposed it.

Pakistan’s social and political spheres remain divided: To some, the law is an oft-abused provision which threatens the nation’s founding spirit of tolerance; while to others it is a true representation of Shariah law which Pakistan is bound to uphold per its Islamic character.

However there is another dynamic within the debate. According to the Hanafi madhab — the school of Sunni Islamic law followed by the majority of Pakistani Muslims, and whose legal legacy informs the decisions of Pakistan’s Federal Shariat Court — blasphemy by non-Muslims is not punishable by death. Indeed, Section 295-C is not only an affront to human rights, but also a betrayal of the religious legal tradition that informed its original drafting. For the first time in English, this post will present an overview of the Hanafi laws and legal reasoning concerning blasphemy — and explore theoretical religious reform of Pakistan’s blasphemy law — through translation of some of its most prominent historical legal works.

While there are many dynamics both to Asia Bibi’s case, and social and legal reform in Pakistan — not all of which are purely religious in nature — understanding the possibility of reform from within the religious tradition can be valuable. The goal is not to explicitly endorse a religion or school of thought — indeed, as will be seen, it is impossible to reconcile all notions of Hanafi Islam with modern human rights — but, given the religious dimension to Pakistani law and society, to present useful information that might be able to inform debate on the issue, per Pakistan’s current social and geopolitical reality, for the betterment of its citizens, and the world.

An Overview of the Hanafi Position

In much of Islamic law, blasphemy (insult of religion) is distinct from, and more severe than apostasy (the leaving of religion). For the most part (though there is disagreement in the minutiae), it is held that both Muslims and non-Muslims are to be executed for the offense, and not given the chance to repent — an allowance typically extended to apostates.1

The Hanafi madhab is the outlier, however. Hanafi legal reasoning stipulates that blasphemy and apostasy are synonymous offenses. Insult of the Prophet Muhammad, rather than being an offense in and of itself, indicates disbelief in Allah and Islam. The blasphemer is considered an apostate, and has the chance to repent and be spared punishment. Moreover, female Muslim blasphemers are not killed, as female apostates do not receive the death penalty in Hanafi jurisprudence.2

By this reasoning, non-Muslims (much less females) cannot be punished with death for blasphemy, as they have never been Muslim in the first place, and do not qualify as apostates (for having left Islam). Rather, they are liable for a tazir (discretionary punishment).

This classification of blasphemy as a type of apostasy is crucial for understanding the inability of non-Muslims to receive the death penalty, and is central to the works that follow.

Classical Hanafi Legal Works

The authors here represent some of the most renowned names in Hanafi legal history. While many more works exist, these contain the most direct remarks on the issue of blasphemy by non-Muslims. While there is not a consensus within the Hanafi madhab on this issue — due to methodological differences between earlier and later scholarly trends — these works represent the broad consensus that existed throughout the earliest recorded history of the madhab, and comprise some of its most well known scholars. In the legal literature, non-Muslims are often referred to as dhimmis — those who live within and receive a covenant of protection from the Islamic state. In other madhabs, blasphemy nullifies this covenant — a position rejected in the Hanafi literature.

Ahmad ibn Muhammad al-Tahawi (d. 321 AH/933 CE)Mukhtasar Ikhtilaf al-Ulama, vol. 3, p. 504, #1652

قال أصحابنا فيمن سب النبي صلى الله عليه وسلم أو عابه وكان مسلما فقد صار مرتدا ولو كان ذميا عزر ولم يقتل

As for insult or reproach of the Prophet, our companions (the Hanafis) say: If he is a Muslim, then he has become an apostate, and if he is a dhimmi, then he is given a tazir, and not killed.

Ahmad ibn Ali al-Jassas (d. 370 AH/981 CE)Sharh Mukhtasar al-Tahawi fi al-Fiqh al-Hanafi, vol. 6, p. 142. See also Ahkam al-Quran, vol. 4, p. 275

فصل : حكم أهل الذمة في سب الرسول صلى الله عليه وسلم

قال أبو جعفر : ومَن كان من ذلك من أهل الذمة: فإنه يؤدَّب ولا يُقتل

لأنهم قد أُقِرُّوا على دينهم، ومِن دينهم عبادة غير الله، وتكذيب الرسول

ويدل عليه: ما روي «أنَّ اليهود دخلوا على النبي عليه الصلاة والسلام، فقالوا: السام عليك، فقال النبي صلى الله عليه وسلم: وعليكم»، ولم يوجد عليهم قتلا

Al-Tahawi said: Whoever insults the Prophet from the people of dhimma, he is chastised, and not killed.

This is because they have already assented to their religion, and from their religion is worship of other than Allah, and denial of the Messenger of Allah. This is evinced by what has been narrated: “The Jews entered upon the Prophet and said, ‘Death be upon you.’ The Prophet said, ‘And upon you.’”

And he did not rule they be killed.3

Ahmad ibn Muhammad al-Quduri (d. 428 AH/1036 CE). Al-Tajrid, vol. 12, p. 6266

أهل الذمة يسبون الله تعالى ويقولون له ولد ، والمجوس يقولون له ضِدٌ وهو أمر بَينِّ فلا ينقضون العهد بذلك ، فسب النبي مثله. ولأنه نوع كفر فلا ينقض بذلك العهد كسائر أنواعه ، لأنهم لو سبوا النبي في كنائسهم وبِيَعهم لم ينقضوا به العهد وما لا ينتقض العهد في كنائسهم لا ينتقض به غيرها كضرب الناقوس وإظهار الخنازير

The people of dhimma blaspheme against Allah by saying He has a son, and the Zoroastrians by saying He has an “opposite.” These are clear realities, and these (sayings) do not break their covenant (of security). So, insult of the Prophet is the same. Because, it is just one type of disbelief, so it does not break the covenant, in the same way the other types (of disbelief do not).

If they insult the Prophet in their churches, and in their transactions, it does not nullify their covenant. And what does not break their covenant in their churches, doesn’t break it it in other ways, such as in them ringing bells, or displaying pigs.

Masoud ibn Ahmad al-Kasani (d. 587 AH/1191 CE). Badai al-Sanai fi Tartib al-Sharai, vol. 15, p. 336

وكذلك لو سب النبي عليه الصلاة والسلام لا ينتقض عهده ؛ لأن هذا زيادة كفر على كفر ، والعهد يبقى مع أصل الكفر فيبقى مع الزيادة

If (a dhimmi) insults the Prophet, it does not invalidate his covenant (of security). Because, this is an addition to unbelief, upon unbelief. If the covenant was established upon the original unbelief, then it is established upon its addition.4

Ali ibn Zakariya al-Manjabi (d. 686 AH/1287 CE). Al-Lubab fi Jama Bayna al-Sunnah wa al-Kitab, vol. 2, p. 765

من أظهر سب النبي صلى الله عليه وسلم من أهل الذمة عزر ولا ينتقض عهده ولا يقتل

Whoever insults the Prophet from the people of dhimma, he is given a tazir, his covenant is not invalidated, and he is not killed.

Abu Bakr ibn Ali al-Haddad (d. 800 AH/1397 CE). Al-Jawhara al-Nayira ala Mukhtasar al-Quduri, vol. 6, p. 138

وأما سب النبي صلى الله عليه وسلم فلا يكون نقضا للعهد عندنا ؛ لأنه كفر والكفر المقارن له لا يمنعه فالطارئ لا يرفعه ولأن سب النبي صلى الله عليه وسلم يجري مجرى سب الله تعالى وهم يسبون الله تعالى فيقولون له ولد

As for insult of the Prophet (by a dhimmi), it does not invalidate their covenant according to us (the Hanafis). Because, this is unbelief; it does not nullify the covenant, and it is not lifted due to it. This is because blasphemy against the Prophet is synonymous with blasphemy against Allah, and they already blaspheme against Allah by saying He has a son.5

The Limits of Tazir Punishment

Although spared the death penalty, the legal literature does advocate that non-Muslim blasphemers receive a tazir punishment. What does this entail, and what does it mean for Asia Bibi if the scholarly rulings are followed to the letter?

In Islamic law, punishments are of two types — hadd (fixed) punishments, and tazir (discretionary) punishments.

Hadd punishments are established by direct textual evidence in the Koran and sunnah. They include those for adultery, slander and false accusation, alcohol consumption, theft, and highway robbery, among others. Generally, they are considered to be “rights of God,” (huquq Allah) which it is sinful to not implement, or delay.

Tazir punishments cover everything else. If there is an offense not covered under the hadd punishments, or if there is a lack of definitive evidence in a hadd case, a tazir is employed.  They are not categorized in any way, and unlike hadd punishments, are not binding.

In classical Islamic law, the main means of tazir punishment is lashing. In Hanafi jurisprudence, it is at the judge’s discretion to sentence offenders to a minimum of 1, and maximum of 39 lashes. It is unlike a hadd (fixed) punishment because of this choice in its severity. Due to the nature of the tazir, the same offense can be subject to varying degrees of punishment for different individuals, and the judge can take into account factors such as the offender’s gender, or the level of cooperation or remorse shown.

However, in the scholarly literature, the term can also indicate an offense’s legal classification, rather than an explicit endorsement of punishment. When the authors wrote that blasphemers receive a “tazir,” they sought to articulate a legal delineation and indicate that the offense is not subject to the conditions of a hadd. They were not explicitly endorsing punishment, and none of the works have recommended a number of lashes, as it is at the judge’s discretion alone. These scholars sought to systemize the content of the law, and no more.

Lastly, in Islamic history, monetary fines have also been utilized as tazir punishments in place of lashing. The bottom line being: Simply because these scholarly statements seemingly endorse some type of punishment for non-Muslim blasphemers, it is jurisprudentially possible for punishment to not be carried out, or to be limited in nature.

Conclusion

The purpose of this analysis is not to highlight that different punishments exist for Muslim and non-Muslim blasphemers in the scholarly literature, or to focus on punishment at all. Rather, it is to show that in Pakistan’s religious tradition there exists a broad legal philosophy which has not been utilized to its full potential, yet can offer a new avenue for reform, and a reconceptualization of Islamic law and personal freedoms. While a small effort, it is my hope that this contributes to Asia Bibi’s defense, and a future of social tolerance, respect, and prosperity in Pakistan.

Notes

1. The Maliki madhab holds that non-Muslim blasphemers can be spared punishment if they convert to Islam. The Shafi’i madhab also holds that the offer of repentance can be extended to Muslim blasphemers.

2. Given the fact that blasphemy is considered a type of apostasy in Hanafi jurisprudence, this footnote will be dedicated to exploring the Hanafi treatment of apostates. As mentioned, unlike other Sunni madhabs, which envision blasphemy as an offense distinct from and more severe than apostasy, the Hanafis view them as synonymous offenses. This is indicated in the Hanafi treatment by mandating that the blasphemer be separated from his wife, and imposing a period of repentance — both done with apostasy. This correlation of blasphemy with apostasy also explains the inability of a non-Muslim to be punished for it:

من سب رسول الله صلى الله عليه وسلم فانه مرتد وحكمه حكم المرتد

Whoever insults the Messenger of Allah is an apostate, and his ruling is the ruling of the apostate.

— Ali ibn Hassan al-Sughdi (d. 461 AH/1068 CE). Al-Nutaf fi al-Fatawa

وأيما رجل مسلم سب رَسُوْل اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ أو كذبه أو عابه أوتنقصه فقد كفر بالله وبانت منه زوجته ، فإن تاب وإلا قتل ، وكذلك المرأة ، إلا أن أبا حنيفة قَالَ: لا تقتل المرأة وتجبر عَلَى الإسلام

If a Muslim man insults the Messenger of Allah, denies him, or reproaches or diminishes him, he has disbelieved in Allah, and his wife is separated from him. He must repent, or else is killed. And this is the same for the woman, except Abu Hanifa said: Do not kill the woman, but coerce her upon Islam.

— Yaqub ibn Ibrahim al-Ansari (Abu Yusuf) (d. 182 AH/798 CE). Kitab al-Kharaj

Therefore, if we wish to analyze theoretical religious reform of Pakistan’s blasphemy law, we must confront apostasy and freedom of belief in general. Can a religious framework be devised through which to reconcile traditional Islamic scholarship with modern notions of freedom, social tolerance, and personal liberties? Like their unique position on blasphemy by non-Muslims, Hanafi scholarship is better equipped than other schools of thought in trying to tease out a semblance of religious tolerance. As will be seen, while promising, the Hanafi treatment of apostasy is also fraught with challenges.

Although held by a number of early Islamic jurists — including the Prophetic companion Ibn Abbas, and second-generation scholar Ata ibn Abi Rabah, among others — the Hanafi madhab is the only school of Sunni Islamic law to codify the opinion that female apostates are not to be killed:

حدثنا عبد الرحيم بن سليمان ووكيع عن أبي حنيفة عن عاصم عن أبي رزين عن ابن عباس قال : لا تقتل النساء إذا ارتددن عن الإسلام ، ولكن يحبسن ويدعين إلى الإسلام ويجبرن عليه

Ibn Abbas said: Do not kill women if they apostatize from Islam, but imprison them and call them to Islam, and coerce them upon it.

حدثنا حفص عن ليث عن عطاء في المرتدة قال : لا تقتل

Ata ibn Abi Rabah said about the female apostate: She is not killed.

— Abu Bakr Ibn Abi Shaybah (d. 235 AH/849 CE). Al-Musannaf

This view having been endorsed by Abu Hanifa (Abu Yusuf, however, has two views recorded for him), Hanafi scholars then sought to explain the reasoning for this difference in punishment between men and women. If punishment for apostasy were merely for the act of intellectual disbelief in Islam, then both men and women would be equally entitled to punishment. Rather, the exemption of women in the Hanafi conception of apostasy points to a different legal reasoning:

وعن ابن عباس – رضي الله عنهما – أنه قال : «لا تقتل المرتدة» ، ولأن كفر المرأة لا يساوي كفر الرجل في كونه داعياً مفضياً إلى الخراب فلا يساويه في استحقاق القتل لما عرف

It is narrated from Ibn Abbas that he said, “The female apostate is not killed.” This is because the unbelief of the woman is not equal to the unbelief of the man — which leads to (physical) devastation. So, she is not equal in the liability to be killed, as is known.

— Abu al-Layth al-Samarqandi (d. 373 AH/ 983 CE). Mukhtalaf al-Riwayah, vol. 3, pp. 1298-1299

فكذا يجب في القتل بالردة أن يكون لدفع شر حرابه لا جزاء على فعل الكفر ؛ لأن جزاءه أعظم من ذلك عند الله تعالى ، فيختص بمن يتأتى منه الحراب وهو الرجل ، ولهذا { نهى النبي صلى الله عليه وسلم عن قتل النساء } ، وعلله بأنها لم تكن تقاتل على ما صح من الحديث فيما تقدم ؛ ولهذا قلنا : لو كانت المرتدة ذات رأي وتبع تقتل لا لردتها بل ؛ لأنها حينئذ تسعى في الأرض بالفساد ، وإنما حبست لأنها امتنعت عن أداء حق الله تعالى بعد أن أقرت به فتحبس كما في حقوق العباد

It is necessary to kill for apostasy to avert the evil of war, not as punishment for the act of disbelief. Because the greatest punishment for that is with Allah. This (the punishment of killing) is for those who come with war, and that is the man. This is because the Prophet prohibited killing women, and the reason is because they do not fight. Because of this (reasoning) we say: If a woman apostate has an opinion and a following (for the sake of war), then she is killed. Not for her apostasy, but because she was spreading corruption in the earth. However, (the female apostate) is imprisoned, because she has refrained from performing the right of Allah after accepting it, like one is imprisoned for (violating) the rights of others.

— Muhammad ibn Abd al-Wahid al-Siwasi (Ibn al-Hummam) (d. 861 AH/1456 CE). Fath al-Qadir

This apparent correlation between apostasy and war could pave the way for a modern understanding of Islam and religious freedom.

However, it also betrays a grim juristic reality. Although the Hanafis did correlate apostasy with war making, they did not let women off the hook. Rather, she would be imprisoned until she converted to Islam again. According to some scholars, this would be accompanied by 39 lashes per day, until she returned to Islam, or died:

ولكن يجب حبسها أبدا حتى تسلم أو تمت وتضرب كل يوم تسعة وثلاثين سوط

It is necessary to imprison her forever, until she converts to Islam or dies, and strike her everyday with 39 lashes.

— Muhammad ibn Ahmad Al-Sarakhsi (d. 490 AH/1096 CE). Al-Mabsut

وكيفية حبس المرأة أن يحبسها القاضي ثم يخرجها في كل يوم يعرض عليها الإسلام فإن أبت ضربها أسواطا ثم يعرض عليها الإسلام فإن أبت حبسها يفعل بها هكذا كل يوم أبدا حتى تسلم أو تموت

The method of jailing the woman is that the judge jails her, then he brings her out everyday and presents Islam to her. If she refuses, she is hit with lashes. Then she is presented Islam again, and if she refuses, she (is returned) to prison. This is done everyday, forever until she submits to Islam, or dies.

— Abu Bakr ibn Ali al-Haddad (d. 800 AH/1397 CE). Al-Jawhara al-Nayira ala Mukhtasar al-Quduri

However, slave women apostates could avoid prison (though, some sources say that the judge should still visit her everyday to lash her, like a free woman), as her master’s right over her trumps the right of God for her imprisonment:

ويجبرونها على الإسلام لان حبسها لحق الله ( تعالى ) وحق المولى في خدمتها يقدم على حق الله في حبسها

The right of the master for her services precedes the right of Allah for her imprisonment.

— Muhammad ibn al-Hassan al-Shaybani (d. 189 AH/804 CE). Jami al-Saghir

The juristic view that women apostates were not to be killed seems to have extended to reality. For instance, the Umayyad caliph Umar ibn Abd al-Aziz (d. 99 AH/720 CE) cautioned against selling apostate slave women into lands where their new religion was practiced:

أخبرنا عبد الرزاق عن معمر عن أيوب قال كتب عمر بن عبد العزيز في أم ولد تنصرت أن تباع في أرض ذات مولد عليها ولا تباع من أهل دينها

Umar ibn Abd al-Aziz wrote about the Umm Walad who converted to Christianity, that she should be sold in the land of her birth, and not sold in the land of the people of her religion.

— Abd al-Razzaq al-Sanani (d. 211 AH/826 CE). Al-Musannaf

Notably, Muhammad ibn al-Hassan al-Shaybani, the student of Abu Hanifa, concedes that a male slave apostate can be sold — whereas per Hanafi methodology, as a male, he would be liable for death. While unclear, this perhaps represents a break between the scholarly ideal of punishing apostasy, and the real-world reality where that did not always occur, but scholars were nonetheless forced to address:

وإذا باع الرجل عبده المرتد أو أمته المرتدة فالبيع جائز، والردة عيب فيها

If a man sells his male slave apostate, or his female slave apostate, their selling is permissible, and their apostasy is a defect upon them.

— Muhammad ibn al-Hassan al-Shaybani (d. 189 AH/804 CE). Siyar al-Saghir

According to some scholars, this “defect” is the fact that the man is liable to be killed, and that intercourse is forbidden with the woman.

Despite the Hanafis linking apostasy to warfare — which might seem jurisprudentially enlightened — they also held that the period of repentance for male apostates, usually specified as three days, was merely recommended, and not mandatory. Effectively, this seems to have allowed for the extrajudicial killing of apostates before being allowed the chance to repent, while the killer was given a reduced punishment (or perhaps none at all):

مسألة: حكم مَن قَتَل مرتداً قبل استتابته أو جنى عليه

قل: ولا شيء على مَن قَتَلَ مرتداً قبل استتابته، أو قطع عضواً منه، لكنه يؤدب

وذلك لأن عصمة دمه زائلة بنفس الردة، ولكن الأحسن تقديم الاستتابة، والدعاء إلى الإسلام قبل قتله، فمَن قتله قبل ذلك: لم يكن عليه ضمان دمه، وكان مسيئاً في إقدامه، كمَن قتل حربياً قبل الدعاء الى الإسلام

There is nothing upon the person who kills an apostate before his repentance, or cuts a limb from him. But, he is chastised. This is because the protection of his blood is not permanent in a state of apostasy. But, it is best to present repentance to him, and call him to Islam before he is killed. But whoever kills him before that, there is no compensation for his blood. But, it is offensive, like killing the fighter before calling him to Islam.

— Ahmad ibn Ali al-Jassas (d. 370 AH/981 CE). Sharh Mukhtasar al-Tahawi fi al-Fiqh al-Hanafi, vol. 6, p. 138

فان لم يستتبه وقتله او قتله رجل غير الامام فلا شىء عليه فى ذلك لانه حلال الدم

If his repentance is not sought and he is killed, or if a man other than the Imam kills him, there is nothing upon him, because his blood is legal (halal).

— Ali ibn Hassan al-Sughdi (d. 461 AH/1068 CE). Al-Nutaf fi al-Fatawa

This also applies to female apostates:

فإنَ قتلَ المرتدة قاتلٌ وحي حرَّة، أو أمة فلا شيءَ عليه من دية، ولا قيمةٍ، ولكنَّا نكرهُ ذلك له، فإن رأى الإمامُ أن يؤدبه أدَّبه، وهو قولُ أبي حنيفة

If a female apostate is killed, a free or slave woman, there is nothing upon (the killer) in terms of blood money or compensation. But, we hate that. If the ruler (imam) wants he can chastise him severely. And this is the view of Abu Hanifa.

— Muhammad ibn al-Hassan al-Shaybani (d. 189 AH/804 CE). Kitab al-Athar

This was also the view of Sufyan al-Thawri, an early Muslim jurist who, it is reported like the Hanafis, also held that non-Muslim blasphemers were not to be killed:

عبد الرزاق عن الثوري قال إذا قطع السارق وقتل الزاني قبل أن يبلغه السلطان فعليه القصاص وليس على السارق والزاني غير ذلك لأن الذي عليهما قد أخذ منهما وإذا قتل المرتد قبل أن يرفعه إلى السلطان فليس على قاتله شيء

If someone cuts the hand of a thief, or kills an adulterer before it reaches the sultan, then he is liable for retribution…but if he kills an apostate before he is brought to the sultan, there is nothing upon the killer.

— Abd al-Razzaq al-Sanani (d. 211 AH/826 CE). Al-Musannaf

Although, it is mentioned in other Hanafi works that if carried out before being presented to the authorities, the killer would need to have “very good evidence” to show. Despite the reasoning for punishing apostasy clearly being conceived as related to war, the Hanafis still envisioned punishment for female apostates, and a general lack of religious freedom. However, the correlations with a state of war are undeniable.

Jurists worked within a theoretical framework in which humans were mainly divided into three spheres: Muslims (ideally living in the Islamic state); those in a real or theoretical state of war with Muslims (ahl al-harb); and non-Muslims who submitted to the state (ahl al-dhimma). Discussions of apostasy are imbued with this outlook, which is not applicable today. Moreover, the Hanafis relied largely on juristic tools such as qiyas and istihsan to come to many of their conclusions. For instance, the 39 lashes per day is simply the maximum amount possible for a tazir punishment. Even jailing for female apostates seems to be a juristic derivation, based on analogy of capturing unbelieving women during a state of war:

فلا تقتل في الكفر الأصلي ولا في الكفر الطارئ ولكنها تحبس فالحبس مشروع في حقها في الكفر الأصلي فإنها تسترق والاسترقاق حبس نفسها عنها ثم الحبس مشروع في حق كل من رجع عما أقربه كما في سائر الحقوق

Jailing is licit for original unbelieving woman (in a state of war), for she is enslaved, and enslavement is imprisonment of herself. So, imprisonment is licit…

— Muhammad ibn Ahmad Al-Sarakhsi (d. 490 AH/1096 CE). Al-Mabsut

Jurisprudentially, these juristic derivations are not binding, and do not hold the same weight — the overall reasoning about war would thus take precedence over any of the details.

To buttress this perception, treatments of apostasy in Hanafi works are found in Kitab al-Siyar, synonymous with jihad, rather than in Kitab al-Hudud. This is also why the main textual proof the Hanafis rely upon is the hadith that the Prophet, “Forbade the killing of women.” However, women are liable to be killed for hadd crimes, such as adultery. This shows that the Hanafis envisioned apostasy as something heavily linked to war — where the killing of women was forbidden — rather than as a formal hadd offense within a normative state structure:

ولا تقتل المرتدة، ولكنها تحبس أبدا حتى تسلم. بلغنا عن ابن عباس رضي الله عنهماأنه قال: إذا ارتدت المرأة عن الإسلام حبست ولم تقتل وبلغنا عن رسول الله صلى الله عليه وسلم أنه نهى عن قتل نسـاء المشركين فى الحرب فأدرأ القتل عنها بهذا

The female apostate is not killed, but she is imprisoned forever until she submits to Islam. It has reached us from Ibn Abbas that he said, “If a woman apostatizes from Islam, she is jailed, and not killed.” It has reached us from the Prophet that he forbade the killing of polytheist women in war, so killing is averted from her due to this.

— Muhammad ibn al-Hassan al-Shaybani (d. 189 AH/804 CE). Siyar al-Saghir

Despite this reasoning, however, some Hanafi authors do not seem to have taken it to its logical conclusions. For instance, other groups who it is prohibited to kill during war — such as elderly men and monks — are nonetheless still liable to be killed for apostasy:

وكذلك الشيوخ وأصحاب الصوامع والرهبان يقتلون بعد الردة

Old men, monks, and priests, they are killed after apostasy.

— Muhammad ibn Ahmad Al-Sarakhsi (d. 490 AH/1096 CE). Al-Mabsut

This is not to mention the treatment of child apostates, who are also “coerced to Islam,” in the same language as used with women. Shockingly, this extends to two generations of children:

وإن ارتد الزوجان، ولحقا بدار الحرب، فحملت المرأةُ في دار الحرب أو غيرها، وولدت، وولد لولدِها ولد، وَظُهِرَ على الجميع، فالولدان فيء، ويُجبر الأولُ على الإسلام، ولا يُجبر الثاني، ويُجبر الزوج على الإسلام، ويقتل، وتكون المرأة أمةً تُجبر ولا تُقتل

If a husband and wife apostatize and are then captured in the land of war — and the wife had given birth in the land of war, or elsewhere — and then the child had children, then the first (child) is coerced to Islam, and the second (the grandchild) is not. And the husband is coerced to Islam, and killed. And the woman becomes a slave, and is coerced, and not killed.

— Ahmad ibn Mahmud al-Ghaznawi (d. 593 AH/1196 CE). Al-Hawi al-Qudsi fi Furu al-Fiqh al-Hanafi, vol. 2, p. 454

Many Islamic fiqh works mention the reality of apostates fleeing to the “land of war” (dar al-harb) — simply meaning, to non-Muslim states. Having to flee to a new country, especially with a family, to practice your religion is a horrible and sobering reality. Not to mention the real, or theoretical treatment then accorded to those who had escaped, in the eventuality that they would be conquered by a Muslim army. It is very clear that some scholarly treatments envision no freedom, and no escape from Islam. For the sake of those who might have suffered in this way, I hope this analysis does not do wrong by them.

However, outside Hanafi legal theory, there are reports from early Islamic history where apostates were not killed — again, from the example of Umayyad caliph Umar ibn Abd al-Aziz:

أخبرنا عبد الرزاق عن معمر قال أخبرني قوم من أهل الجزيرة أن قوما أسلموا ثم لم يمكثوا إلا قليلا حتى ارتدوا فكتب فيهم ميمون بن مهران إلى عمر بن عبد العزيز فكتب إليه عمر أن رد عليهم الجزية ودعهم

A group of people accepted Islam, but they did not (stay Muslim) for long, until they apostatized. Maymun ibn Mihran wrote to Umar ibn Abd al-Aziz about that, so he wrote to him that they should be returned to a state of jizya, and left alone.

— Abd al-Razzaq al-Sanani (d. 211 AH/826 CE). Al-Musannaf

This was also done in the case of a man who converted to Islam and apostatized, but was found to be ignorant of Islamic tenets:

أخبرنا عبد الرزاق عن معمر عن سماك بن الفضل أن عروة كتب إلى عمر بن عبد العزيز في رجل أسلم ثم ارتد فكتب إليه عمر أن سله عن شرائع الإسلام فإن كان قد عرفها فاعرض عليه الإسلام فإن أبى فاضرب عنقه وإن كان لم يعرفها فغلظ الجزية ودعه

Umar ibn Abd al Aziz was written to about the man who becomes Muslim, then apostatizes. He wrote back, “Present to him the tenets of Islam. If he understands them, then present Islam to him. If he refuses, then strike his neck. But, if he did not know them, then reimpose the jizya and leave him alone.”

— Abd al-Razzaq al-Sanani (d. 211 AH/826 CE). Al-Musannaf

The issue of jizya — traditionally taken only from men — remains a theoretical impediment to constructing a framework for tolerance within a scholastic Islamic worldview. While the jizya was re-imposed by Umar ibn Abd al-Aziz, most scholarly treatments consider it impossible to accept jizya from a male apostate, therefore making “peaceful apostasy” theoretically difficult. Meaning, if an apostate joins a religious community under Muslim rule, that his status cannot be transferred to that of a dhimmi. Rather, he is like the “polytheist Arab” who must submit to Islam, or be killed — jizya not being an option. Scholarly treatments do consider the possibility of peaceful apostasy — those apostates who sought the covenant of protection from the Muslim state, simply with an altered religious status.

وإذا طلب المرتدون أن يجعلوا ذمة للمسلمين لم يفعل ذلك؛ لأنّ الكفر من المرتد أغلط من كفر مشركي العرب، ولم يقبل من مشركي العرب الذمة فكذا هنا، فإن طلبوا الموادعة لينظروا في أمرهم، فلا بأس به إن خيراً للمسلمين، ولم يكن للمسلمين لهم طاقة، فإن كانوا يطيقونهم، والحرب خيراً لهم في الموادعة يأخذوهم كما في أهل الحرب

If a group of apostates seeks the protection (dhimma) of the Muslims, that is not done. Because the unbelief of the apostate is more erroneous than the unbelief of the Arab polytheist. And the dhimma is not accepted from the Arab polytheist, so the same here. But if they seek tranquility to consider their affairs, there is no harm if it is good for the Muslims, and the Muslims have no power over them. But if they have power, and seek war during this time of tranquility, then seize them like (any other) war makers.

— Abd al-Rashid al-Walwaliji (d. 540 AH/1145 CE). Al-Fatawa al-Walwaljiyah, vol. 2, p. 305

Realistically and pragmatically, killing peaceful apostates would deprive the state of taxes garnered under jizya, which seems to have been of concern in early Islamic history, when the jizya was still imposed on converts who had become Muslim. There are other clues that in some cases in early Islamic history, central governments were either unwilling, or unable to carry out punishment for apostasy. For instance, there are discussions from the earliest jurisprudential and hadith works which discuss the unacceptability of the apostate’s ritual slaughter. If apostates were killed or imprisoned, the validity of eating their food would be a superfluous question. Additionally, there are references to Muslim men marrying apostate women. Along with the intense and in-depth discussion of apostasy in some early Islamic works, especially those on siyar and kharaj, this shows that historically apostasy was a real and perhaps widespread phenomenon, and that apostates did survive their apostasy. It also shows that Islamic societies might have had to exhibit a degree of religious tolerance, and accept varying levels of disbelief and dissent in their midst.

ألا ترى أنها لو ارتدت إلى اليهودية أو النصرانية لا تؤكل ذبيحتها ولا يجوز مناكحتها

Do you not see that if a woman apostisizes and becomes a Jew or Christian, you cannot eat her ritual slaughter, and it is impermissible to marry her?

— Muhammad ibn al-Hassan al-Shaybani (d. 189 AH/804 CE). Sharh Siyar al-Kabir

وهو قول شبرمة إن تنصرت المسلمة فتزوجها نصراني جاز

It was the view of Ibn Shubrumah (d. 144 AH/761 CE) that if a Muslim woman becomes Christian, then her marriage to a Christian is valid.

— Ahmad ibn Muhammad al-Tahawi (d. 321 AH/933 CE). Mukhtasar Ikhtilaf al-Ulama

Due to this general reasoning concerning female apostasy, according to some later Hanafi scholars, an apostate wife would not be separated from her husband. Either their marriage would be retained fully, or she would become her husband’s slave. At some point, it seems that women used the excuse of apostasy as leverage for divorce. To prevent this, some Hanafi scholars argued (with the general Hanafi treatment on female apostasy in mind) that claims of apostasy were not enough to necessitate marital separation.

 وبعض مشايخ ، بلخ وسمرقند كانوا يفتون بعدم وقوع الفرقة بالردة حسما لباب المعصية وعامتهم يقولون يقع الفسخ ولكن تجبر على النكاح لزوجها بعد الإسلام ؛ لأن المقصود يحصل بذلك ومشايخ بخارى كانوا على هذا

Some of the sheikhs of Balkh and Samarqand ruled that separation does not occur due to apostasy, if it is done in disobedience…but, she is coerced upon marriage to her husband after Islam…and the sheikhs of Bukhara also rule that.

— Uthman ibn Ali al-Zaylai (d. 743 AH/1342 CE). Al-Tabyin al-Haqa’iq Sharh Kanz al-Daqa’iq

Interestingly, this same discussion in present in Maliki fiqh works — a madhab which does concede the death penalty for female apostates. The excuse of apostasy for the sake of divorce seems to have been common across broad swaths of the Islamic world — something that would be untenable if the rulers of the day executed apostates. This example perhaps shows a phenomenon that scholars were forced to acknowledge, but did not conform to their scholarly ideal of punishing apostasy.

وروى علي بن زياد عن مالك إن ارتدت الزوجة تريد فسخ نكاحها فلا تكون طلاقا وتبقى على عصمته

Ali ibn Ziyad narrated from Malik that if the wife apostatizes, desiring the dissolution of her marriage, then that does not constitute divorce, and she remains under his (the husband’s) protection.

— Muhammad ibn Ahmad Illaysh (d. 1299 AH/1882 CE). Manh al-Jalil Sharh Mukhtasar Khalil

There are indications that despite the scholarly ideals found in books, reality often operated much differently, and scholarly knowledge occupied a largely theoretical space, much as it does today. On the one hand, scholars have been undermined by the Muslim masses who have no penchant for scholastic minutiae. And on the other, they have been ignored by central governments, where pragmatism (and even nepotism) reigned free. For example, across multiple centuries of scholastic works, there are discussions as to whether praying with a dinar or dirham in one’s pocket legally invalidates prayer. Despite Islam’s traditional stance against imagery, it seems that rulers throughout Islamic history were perfectly content to put their likenesses on currency — thus prompting scholarly questions as to if it’s legally acceptable to pray with such coins on one’s person. Therefore, given that scholars did not often shape the legal (or even religious) environment of many Muslim states, it is not a stretch to assume that punishment for apostasy historically did not always follow the scholarly ideal.

Overall, the Hanafi treatment of apostasy is a mixed bag. There is much potential in crafting a conception of Islam that respects tolerance and plurality, but also many troubling aspects to theoretically redefining Islam in the modern day based on traditional scholarship.

3. Versions of this story are found in all six primary books of Sunni hadith literature — including Sahih Bukhari and Sahih Muslim, and feature prominently in some of the Hanafi discussions on blasphemy.

This unique passage reinforces the Hanafi notion that blasphemy is a type of apostasy, and not a distinct offense. Rather than having left the religion (as might be evident if a Muslim blasphemes), non-Muslims inherently believe differently and do not recognize Muhammad as a prophet, and therefore cannot be punished for apostasy.

4. This reasoning eloquently demonstrates how the Hanafis envision apostasy and blasphemy to be synonymous. If one blasphemes, he has committed “unbelief.” How can a dhimmi be punished for uttering unbelief, when it is simply an addition to the inherent unbelief he possesses as a non-Muslim? If the covenant of security was established given their original religious unbelief, then it is not broken due to uttering something blasphemous — which is simply more unbelief on top of their original state of unbelief. This clearly articulates a methodological understanding distinct from the other madhabs, and distinguishes the Hanafis on this issue.

5. The Koran, and other Islamic sources, put forward the notion that Jews and Christians believe God has a son, and is why the author did not specify Christians alone with this statement. “This is because blasphemy against the Prophet is synonymous with blasphemy against Allah” — this statement further supports the notion that blasphemy is an offense related to one’s state of belief. Non-Muslims cannot be punished for it, as they already believe blasphemous ideas in the first place, such as God having a son.

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