Is the Punishment for Apostasy a Hadd or Discretionary Punishment in the Hanbali Madhab?

Some scholars, such as Shaykh Muhammad b. Salih al-Uthaymeen (may Allah have mercy on him) argued that apostasy does not constitute a hadd punishment due to their desire for precision. They maintained that apostasy cannot be equated with hadd offenses like adultery because apostates are allowed to repent and are not automatically executed. Execution is only carried out if they persist in their public apostasy and refuse to repent. According to al-Uthaymeen, a hadd punishment cannot be waived once the individual has been caught and their crime is proven. Therefore, based on this reasoning, the death penalty for apostasy cannot be considered fixed.[1]

However, this is precisely what other scholars who assert that apostasy warrants a hadd punishment also believe. When they state that the hadd for apostasy is death, they mean that this is the case once all conditions have been met. The same principle applies to retribution (qisas). If we want to be very technical, one could also challenge the statement “the hadd for premeditated murder is death” by arguing that this is not necessarily true, as the victim’s family could forgive the perpetrator and waive the punishment.

To easily reconcile and eliminate the semantic differences between the hadd and non-hadd camps, we can pose the following questions to both groups of scholars: Is there a fixed punishment for the unrepentant male apostate? Is it obligatory to put the unrepentant male apostate to death after the conditions have been met?

Both camps would answer yes.

Therefore, it is clear that someone like Shaykh al-Uthaymeen did not believe that the punishment for apostasy is discretionary, leaving it up to the Imam to decide whether to apply the death penalty or not, even if the conditions have been fulfilled. He has made multiple explicit statements asserting that it is obligatory to execute the unrepentant apostate.[2]

Some have attempted to argue that the Hanbali jurist Ibn Qudamah al-Maqdisi (d. 620 A.H.) did not view the death penalty for apostasy as a hadd punishment and believed that the punishment for apostasy was at the discretion of the ruler. They cite the following statement from Ibn Qudamah as evidence:

وقَتْلُ المُرْتَدِّ إلى الإمامِ، حُرًّا كانَ أوْ عَبْدًا. وهَذا قَوْلُ عامَّةِ أهْلِ العِلْمِ، إلّا الشّافِعِيَّ، فِي أحَدِ الوَجْهَيْنِ فِي العَبْدِ، فَإنَّ لِسَيِّدِهِ قَتْلَهُ؛ لِقَوْلِ النَّبِيِّ - ﷺ -: «أقِيمُوا الحُدُودَ عَلى ما مَلَكَتْ أيْمانُكُمْ». ولِأنَّ حَفْصَةَ قَتَلَتْ جارِيَةً سَحَرَتْها…ولَنا أنَّهُ قَتْلٌ لِحَقِّ اللَّهِ تَعالى، فَكانَ إلى الإمامِ، كَرَجْمِ الزّانِي، وكَقَتْلِ الحُرِّ. وأمّا قَوْلُهُ: وأقِيمُوا الحُدُودَ. فَلا يَتَناوَلُ القَتْلَ لِلرِّدَّةِ، فَإنَّهُ قُتِلَ لِكُفْرِهِ، لا حَدًّا فِي حَقِّهِ

“And the death of the apostate is left to the Imam, whether he’s a free person or a slave. This is the commonly-held stance of the people of knowledge, except for ash-Shafi in one of the two opinions concerning the [apostate] slave, which states that the slave-master has the authority to kill him due to the statement of the Prophet (peace be upon him): “And establish the hudud on those whom your right hands possess.” And because Hafsa had a slave girl who cast a black spell on her, killed…And for us, it’s a killing due to [fulfilling the right of] Allah Almighty,[3] thus [the authority of applying the punishment] goes to the Imam, just like the stoning of the adulterer, and just like in the killing of the free person. And as for his [the Prophet’s] saying: “And establish the hudud,” then this does not include the death penalty for apostasy, as this is a killing for his kufr, not a hadd concerning his (i.e., the slave master’s) right.”[4]

However, Ibn Qudamah is addressing a very specific issue here, namely, whether a slave master has the authority to apply the death penalty to his unrepentant apostate slave. Ibn Qudamah asserts that the slave master has no authority and only the ruler holds such power. He explains elsewhere that the slave master can only administer hadd punishments involving flogging (e.g., for fornication, drinking, etc.), while hadd punishments for theft and apostasy must be carried out by the Imam.[5] Ibn Qudamah is not suggesting that the ruler has the discretion to decide whether to apply the death penalty or not; rather, he is emphasizing that only the ruler has the authority to implement the death penalty.

Furthermore, Ibn Qudamah has made several statements indicating his belief that unrepentant apostates must be executed:

- He stated that scholars agree on the obligation to kill the apostate. [6] Hence, he is making it clear that his position aligns with the stance of others. He does not distinguish between the position of the Hanbali school and others

- He argued that allowing the apostate an indefinite opportunity to repent would result in not killing him, which contradicts the Sunnah and Ijmaa’, both of which mandate the execution of the unrepentant apostate.[7]

- He explicitly said that it is obligatory to kill the unrepentant apostate.[8]

Additionally, he has made numerous unqualified statements about executing apostates, although it is unnecessary to reference them all here.

At times, scholars like Ibn Qudamah distinguish between applying the death penalty as a hadd punishment versus as a consequence of kufr (disbelief). For instance, within the Hanbali school, there was a debate regarding the classification of the death penalty for abandoning prayer: whether it should be considered a prescribed hadd punishment specifically designated for this offense or regarded as a punishment resulting from kufr.[9]

Such a distinction might lead some to mistakenly believe that the death penalty for unrepentant apostasy is not fixed. However, this is not the intention. The distinction is primarily made to clarify whether the punishment applies to a Muslim or a non-Muslim (kafir/apostate), which carries other legal implications such as burial in a Muslim cemetery or performing funeral prayers (janaza).[10]

In summary, it is inaccurate to claim that Ibn Qudamah (and consequently, the Hanbali school) unconditionally believed that the death penalty for the unrepentant apostate could be left to the discretion of the Imam. Rather, Ibn Qudamah maintained that it is only the Imam who possesses the authority to enforce the death penalty for apostasy once all necessary conditions have been met.

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[1] See: Shaykh Muhammad b. Salih al-Uthaymeen, Sharh al-‘Aqeedah as-Safaareeniyyah, vol. 1, p. 670

[2] The statements are too numerous. The below would suffice from his Fatawa Noor ‘Ala al-Darb, vol. 2, p. 24:

والكافر المرتد أشد قبحًا من الكافر الأصلى لأن هذا رجع عن الحق بعد اعتناقه أعني المرتد بخلاف الكافر الأصلى ولهذا يجب قتل المرتد بكل حال إذا لم يتب

“The apostate is considered more reprehensible than the original unbeliever because the apostate has renounced the truth after having embraced it, unlike the original unbeliever. Therefore, the apostate must be executed in all circumstances unless they repent.”

[3] Ibn Qudamah in Al-Mughni, vol. 9, p. 156, considered the death penalty for apostasy to be one of the “rights of Allah.”

[4] Ibn Qudamah, Al-Mughni, vol. 9, p. 8

[5] He said in “Al-Mughni,” vol. 9, p. 52:

ولِأنَّ السَّيِّدَ يَمْلِكُ تَأْدِيبَ أمَتِهِ وتَزْوِيجَها، فَمَلَكَ إقامَةَ الحَدِّ عَلَيْها، كالسُّلْطانِ، وفارَقَ الصَّبِيَّ

إذا ثَبَتَ هَذا، فَإنَّما يَمْلِكُ إقامَةَ الحَدِّ بِشُرُوطٍ أرْبَعَةٍ؛ أحَدُها أنْ يَكُونَ جَلْدًا كَحَدِّ الزِّنى، والشُّرْبِ، وحَدِّ القَذْفِ، فَأمّا القَتْلُ فِي الرِّدَّةِ، والقَطْعُ فِي السَّرِقَةِ، فَلا يَمْلِكُها إلّا الإمامُ

[6] He said in Al-Mughni, vol. 9, p. 3:

وأجْمَعَ أهْلُ العِلْمِ عَلى وُجُوبِ قَتْلِ المُرْتَدِّ

[7] He said in Al-Mughni, vol. 9, p. 3:

وقالَ النَّخَعِيُّ: يُسْتَتابُ أبَدًا. وهَذا يُفْضِي إلى أنْ لا يُقْتَلَ أبَدًا، وهُوَ مُخالِفٌ لِلسُّنَّةِ والإجْماعِ

[8] He said in ‘Umdat al-Fiqh, vol. 1, p. 138:

ومن ارتد عن الإسلام من الرجال والنساء وجب قتله لقول رسول الله ﷺ: «من بدل دينه فاقتلوه

[9] See: Ibn Qudama’s Al-Muqni‘ fi Fiqh al-Imam Ahmad, vol. 1, p. 41

[10] See: Shaykh Muhammad b. Salih al-Uthaymeen, Ash-Sharh al-Mumti‘, vol. 14, pp. 280-281