Islamic Law • Islamic Studies Scholarly Consensus: Ijmāʿ Between Use & Misuse By Sh. Abdullah bin Hamid Ali by TranslatorsFebruary 9, 20101 min read Click on the image to read
Jazahullah Sh Abdullah for a lucid and thorough exposition of the concept of Ijmaa.
Could the Sh clarify the position of Al-Nakhi and Thawri more?
I found the following about the opinion of these two illustrious scholars on the net and would appreciate your comments.
The views of Ibram an- nalhi’ and Imam Sufyan ath-Thawri: Imam Nawawi narrates from Ibrahim al Thawri the following view
“…and Imam Thawri said that the apostate is asked to repent indefinitely and he will be imprisoned until he repents or dies”.
Ibn Hibban also narrates:
“..Al-Nakhi’ and al Thawri have gone towards the view that he [the apostate] is asked to repent while in prison indefinitely.
[Ibn Hibban al Bahr al Muhit Chapter 2/ 34, Nawawi Takmilat al Majmu’ 19/237]
Others have interpreted the views of the two illustrious scholars differently. They go and say that the phrase “the person is asked to repent indefinitely” means that there is no limit to the number of times an apostate can repent i.e. with multiple infractions of apostasy.
[Al-‘awn al-ma’bud bi Sharh Sunan Abi Dawud: 9/38]
Yet other scholars hold onto the other narrations. Ibn Abdil Barr says:
“..and the scholars differed on the female apostate as well, Imam Malik, Al-Awzai’i’, Uthman al Bitti, al Shafi, and Laith bin Sa’d have said that the apostate [regardless of their sex] is executed and this is the view of Ibrahim Al Nakhi’. Their evidence is the apparent generality of the hadiths that do not qualify any gender” [Al-Tamhid: 312/5]
Ibn Hajar affirms that the narration from an-Nakhi’ which confirms the death sentence for the apostate is more authentic than the narration that negates the death sentence. He declared the latter weak:
“Sai’d Bin Mansur narrated on the authority of Hashim on the authority of Ubaydat bin Mugith on the authority of Ibrahim that he said, “If a male or female apostatise from Islam they are asked to repent and if they refuse they are to be killed. [Fath al Bari: 12/268] [http://saaid.net/Doat/ahdal/115.htm]
Also the issue about al ma’lum minad din bi dharura – did the scholars in the past differ in terms of what they included in this category or were they in agreement in the ones you have stated such as the prohibition of illicit sex, drinking etc? I hope the questions were clear?
As Salamu ‘alaykum wa rahmatullah wa barakatuh, Abu Abdur-Rahman
Sorry to take so long to respond. I’m glad that you were able to benefit from the article. As for the matter of Ibrahim al-Nakha’i and Sufyan al-Thawri–may Allah show them mercy, I am quite aware that there is some disagreement over how their views are to be interpreted. As a matter of fact, there are a number of narrations about a number of the early authorities that make the matter concerning apostasy very confusing. There are the reports (like the one in the Musannaf and Muwatta) that indicates that ‘Umar b. al-Khattab (raa) objected to killing apostates, but then there is one about him which many scholars utilize as a proof for granting the apostate a 3 day period for reconsideration prior to execution. There is a report that ‘Ali b. Abi Talib (kaw) preferred that the apostate should be given an entire month to reconsider his decision. There are the reports about Ibrahim and Sufyan that indicate that they were of the view that the apostate’s sentence should be delayed for an indefinite period, while there are some scholars who interpret that in the context of repetitive apostasy insomuch that such a person’s number of opportunities for repentance should not be limited. This latter interpretation is intended to overshadow the view of some Tabi’in that an apostate should not be offered a lull, and should be killed immediately upon the knowledge that he has apostatized. There is also the opinion that female apostates should not be killed, which is upheld by Hanafis and has hadith support, though most scholars make no distinction between men and women. Ibn Hajar’s view that the proper interpretation of Ibrahim al-Nakha’is opinion is that it refers to the repeat offender, while based on critical scholarship, still represents Ibn Hajar’s personal scholarly view. Though he may be certain that he is correct, other scholars who merely report the disagreement or take the other interpretation are just as certain. The fact that Ibn Hajar is who he is, is not sufficient proof that the other view is wrong. He also holds that it is correct that no distinction should be made between men and women apostates, although Hanafis believe the hadith support they have for their view is stronger or atleast strong enough. The point is that legal interpretation is speculative (zanni), though some views will always appear in the mind of the observer to be stronger than others.
What this discrepancy highlights is that:
1- There are conflicting narrations about Nakha’i and Thawri, and
2- Scholars differ about their views based on those different narrations.
Even were we to accept the opinion of Ibn Hajar, this still underscores the strength of the narration about ‘Umar and his view on the issue. None of this means that apostasy is not a crime in Islam. Indeed it is a crime. This is what needs to be understood first and foremost. But the punishment for this crime is what I have debated in the past and scholars have debated it. The mere fact that Sahaba and Tabi’in were at variance over even when an apostate should or can be executed (or even if he should be executed at all) gives sufficient basis to conclude that the execution of an apostate is NOT a binding injunction. Rather, it is a matter related to the discretionary authority of the governor, judge, or other government official granted the authority to implement such a punishment. Circumstance will dictate when or if that punishment should be applied. This was one of the points I wanted to drive home in my earlier writing on apostasy. I hope this sufficiently deals with your concerns. If not, I’ll try my best to further clarify insha Allah.
Thank you so much for your answer and this amazing article. Are you offering any classes that might serve as a good first step for brothers and sisters to engage the Usol?
As salamu alaikum,
Sh. Abdallah is currently teaching a class on Maliki fiqh using the text al Murshid al Muin by ibn Ashir. The previous sessions are recorded so late comers can easily catch up, inshaAllah.
As Salamu ‘alaykum wa rahmatullah, Imam Suhaib
And thank you too, Brother Jeremiah, for the gratuitous promo. Unfortunately, I just completed an 11 day class on Usul al-Fiqh at the Ta’leef Collective entitled Towards a Respectful Diversity: Studies in Usul al-Fiqh. Most of the recordings are still not available publicly, but some of the recordings can be found at this link: http://stickam.com/lamppostlive. Thank you all for your continued support.