[l] The Shari‘ah [/l]
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The Islamic legal code, the Shari‘ah, was derived from Qur’an and hadith using the methodology of ijma‘, qiyas and ijtihad. In modern times, under the impact of Western colonial rule, Islamic law was gradually phased out in some Islamic countries, which retained at most only certain aspects of Shari‘ah, usually family law, as a part of their more secular legal systems. This process began as the Ottoman Empire came into closer contact with Europe in the nineteenth century. Over the past few decades however, this secularisation process has been reversed, and the Islamic penal code has been reintroduced in some Islamic countries including Iran, Sudan, Pakistan and parts of Nigeria, as part of a wider process of Islamisation, (while in Saudi Arabia the Shari‘ah is the official Constitution). The official introduction of the Islamic penal code has a deep symbolism for the populace, but implementation varies to a remarkable degree depending on power relations between centre and periphery as well as on varying interpretations of the legal issues.
There are different schools in Islamic law, but their rulings on apostasy are all very similar. They unanimously prescribe death for adult male apostates, while outlining the legal processes involved. Sunni Islam is divided into four schools of law called Hanafi, Maliki, Shafi'i, and Hanbali, named after the four great Imams who founded them. A summary of Sunni laws on apostasy is given in Mohammed Al-Abdari Ibn-Hadj's famous book Al Madkhal: All schools agree that it is permitted to kill apostates from in front or from behind; that their blood if shed brings no vengeance; that their property belongs to true believers; and finally that their marriage ties become null and void.[22]
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1. The Hanafi School[23]
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The Hanafi school of law is dominant in Turkey, and the Indian sub-continent. The Hedaya, a famous and authoritative textbook of Hanafi law, lays down the following procedure for dealing with apostasy: The Islamic faith may be explained to the apostate, in the hope that this can persuade and reassure him of the rightness of Islam after all. This step is not obligatory, but is desirable and strongly encouraged since "there are only two modes of repelling the sin of apostasy, namely, destruction or Islam, and Islam is preferable to destruction." [24] The apostate is to be imprisoned for three days, and if he has not returned to the faith by the end of that time, he is then to be killed. Various arguments for and against the three day waiting rule are given.[25] The point is also made that no penalty is incurred by anyone who kills an apostate before he has been given an exposition of the faith, even though such a premature killing is "abominable".[26]
Female apostates are treated differently: they are not to be killed, but to be imprisoned until they recant.[27] A boy who is a minor is also not to be killed but to be imprisoned.[28] The Hanafis regard the Islam of a minor as valid but not his apostasy. This is in contrast to the Shafi‘is, who do not pay regard to a minor's Islam or apostasy as the minor is dependent on the parents in Islam and is not "original" in it. In Islamic law a minor is not held to be capable of an act that might injure himself and the Hanafis apply this same rule to disregard the apostasy of a minor. The mentally ill and those intoxicated by alcohol are not held responsible for their act.[29]
There are also detailed instructions in the Hedaya regarding other penalties for apostasy.
1. An apostate loses his right to his property until he returns to Islam.[30]
2. If a person dies (or is killed) in his apostasy the property that he acquired before his apostasy is given to his Muslim heirs.
3. That which was acquired during his apostasy goes to the public treasury.[31]
4. If an apostate’s children become apostates or if he has children during his apostasy, they cannot inherit from him.[32]
5. The Muslim wife of an apostate inherits from him.[33]
6. A female apostate's estate goes in its entirety to her heirs.[34]
7. A Muslim man cannot inherit from his apostate wife unless she apostatises during sickness.[35]
8. The purchase, sale, manumission, mortgage or  of an apostate's property are suspended. If he returns to Islam they are valid, but if he dies or is killed or flees to another country the acts are null.[36]
9. A man’s apostasy results in an immediate separation from his wife, since Muslim women are not permitted to marry non-Muslim men.[37]
10. If an apostate defector returns to Muslim territory and has again become Muslim, he may regain from his heirs any territories which they hold.[38]
The Hedaya also contains complex rules about the status of children and grandchildren of apostates. In general, the children are also regarded as apostates and may in some circumstances be "compelled" to become a Muslim, whereas an apostate's grandchild is considered "an original infidel and an enemy".[39] The descendents of an apostate who has left to reside in a foreign country are the property of the state.
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[l] 2. The Maliki School[40] [/l]
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The Maliki school of law is predominant in North and West Africa. According to this school, women as well as men should be put to death for apostasy.[41] The apostate is confined for three days and given the chance to repent, however a judgement that the apostate should be killed before the end of three days is valid. If the apostate does not repent then he is killed, his body is not washed or buried. A heretic or hypocrite (munafiq) is not given the chance to repent but is killed immediately. Insulting Muhammad or any of the prophets of Islam is punishable by death and repentance is not accepted. If Allah is insulted repentance is accepted.[42] A female apostate is also killed if she does not repent in three days. A woman who is pregnant, nursing a child, divorced and in the waiting period with the option of returning to her husband, will have her death sentence postponed.
Like the Hanafi School, the Maliki school lays down detailed rules about the treatment of apostates who have avoided being executed. These include the following, which assume that the apostate has embraced Christianity: Muslims are forbidden to give branches to him to carry on Palm Sunday, to sell him wood from which a crucifix might be made or copper from which bells could be cast, and they are forbidden to alienate a house in order that it may be used as a church. In addition, Muslims are forbidden to buy an animal slaughtered by an apostate, and to lend or hire to an apostate either their slave or an animal to ride.[43] When one party in a marriage apostatises, the marriage is dissolved without needing a divorce procedure.
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cont.
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