If a Mussulman woman become an apostate, she is not put to death, but imprisoned, until the return to the faith. Shafei maintains that she is to be p… - Burhan al-Din al-Murghinani
" "If a Mussulman woman become an apostate, she is not put to death, but imprisoned, until the return to the faith. Shafei maintains that she is to be put to death; because of the tradition before cited;—and also because, as men are put to death for apostacy solely for this reason, that it is a crime of great magnitude and therefore requires that its punishment be proportionably severe, (namely, death,) so the apostacy of a woman being likewise (like that of man) a crime of great magnitude, it follows that her punishment should be the same as the of a man. The arguments of our doctors upon this point are twofold.—FIRST, the prophet has forbidden the slaying of women, without making any distinction between those who are apostates, and those who are original infidels, SECONDLY, the original principle in the retribution of offences is to delay to a future state, (in other words, not to inflict punishment here, but to refer it to hereafter,) since it retribution were executed in this world, it would render defective in the state of trial. as men would avoid committing sin from apprehension of punishment, and therefore would be in the state of persons acting under compulsion, and not of free agents: but in the case of apostacy of men the punishment is not deferred to a future state, because it is indispensably requisite to repel their present wickedness, (namely, their becoming enemies to the faith,) wicch wickedness cannot be conceived of women, who are, by natural weakness of frame, in incapable thereof: contrary to men.—A female apostate, therefore, is the fame as an original female infidel; as the killing of the one is forbidden, so the killing of the other also. She is however to be imprisoned, until return to the faith; because, as she refuses the right of GOD after having acknowledged it, she must be compelled, by means of imprisonment, to render GOD his right, in the same manner as she would be imprisoned on account of the right of the individual. It is written in the Jama Sagbeer,—"A female apostate is to be compelled to return to the faith, whether she be free', or a slave.—The slave is to be compelled by her master:—she is to be compelled, for the reasons already recited; and this is compulsion is to be executed by her master, because in this regard is had to the right both of GOD and of the master. It is elsewhere mentioned that a female apostate must be daily beaten with severity until she return to the faith.
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About Burhan al-Din al-Murghinani
Burhān al-Dīn Abu’l-Ḥasan ‘Alī bin Abī Bakr bin ‘Abd al-Jalīl al-Farghānī al-Marghīnānī (Arabic: برهان الدين المرغيناني) was an Islamic scholar of the school of jurisprudence. He was born in Marghinan near Farghana in 530/1135 (in present day ) He died in 593/1197.
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Alternative Names:
Ali ibn Abu Bakr al- Marghinani
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Burhān al-Dīn Abu’l-Ḥasan ‘Alī bin Abī Bakr bin ‘Abd al-Jalīl al-Farghānī al-Marghīnānī[
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ʻAlī ibn Abī Bakr al-Marghīnānī
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Abul Hasan Ali bin Abu Bakr bin Abdul Jalil Farghani Marghinani Rashtani
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Additional quotes by Burhan al-Din al-Murghinani
CAPITATION-TAX is not imposed upon slaves, Mokátibs, Modabbirs, or Am-Walids, because capitation-tax is a substitute for destruction, with respect to them, and; with respect to us, it is substitute for aid [in the wars of the faith;] now in conformity with the first of these, it would, it would follo that capitation-taxt is due; a doubt therefore arises with respec to its being due; and as this is the case, it is determined not to be incumbent upon them: neither is it incumbent upon their owner to pay capitation-taxt for them, because he himself by their means pays an increased capitation-tax, as he through them becomes rich, or obtains a mediocrity of circumstances; and in either case he pays capitation-tax in a degree superior to the labouring poor.
If a person becomes a Mussulman, who is indebted for any arrear of capitation-tax, such arrear is remitted: and in the same manner, the arrear of capitation-tax due from Zimmee is remitted upon his dying in a state of infidelity. Shafei holds that the tax is not remitted in either case; because it was due either in return for protection to the person, or in return for permission to reside in the mussulman territory; and the Zimmee or convert has continued under protection, and resided in the Mussulman territory: the return from him, therefore, is not to be remitted in consequence of the supervenient circumstance of death, or convention of the faith; in the same manner, as in case of hire, or of composition for blood;—in other words, if capitation tax be a return for residence, it comes under the construction hire, and is not remitted in consequence of death, or conversion to the faith, in the same manner as if a Zimme were to hire a house and reside therein for the period agreed upon, and then die, or embrace the faith, in which case the rent of the house does not cease; and so likewise with respect to capitation-tax:—or, if capitation-tax be a return for protection to the person, it comes under the construction of a composition for blood, and is not remitted in consequence of death or conversion to the faith, in the same manner as if a Zimme were wilfully to kill a person, and afterwards enter into composition for the murder with the friends of the deceased, for a certain consideration, and them become a Mussulman, or die, in which case the consideration is not remitted from him;—and so likewise capitation-tax, (which is the consideration for protection to his person,) is not remitted. The arguments of our doctors upon this point are threefold.—First, the prophet has declared that "capitation-tax is not incumbent upon Mussulmans:"—Secondly, capitation-tax is a species of punishment, inflicted upon infidels on account of their infidelity, whence it is termed Yizyat, which is derived from Yizya, meaning retribution; now the temporal punishment of infidelity is remitted in consequence of conversion to the faith; and after death it cannot be inflicted, because temporal punishments are instituted solely for the purpose of removing evil, which is removed by either death or Islám:—THIRDLY, capitation-tax is a substitute for aid to the Mussulmans, and as the infidel in question, upon embracing the faith, becomes enabled to aid them in his own person, capitation-tax consequently drops upon his Islám.—With respect to the a to the argument adduced by Shafei, we reply that capitation-tax is neither consideration for protection to person, nor residence, because protection to the person is established in virtue of humanity, and a Zimme resides, in the mussulman territory, within his own dwelling; wherefore the case does not admit that a consideration, for protection to his person, or for residence, should be exacted from him.
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