DİN ÖZGÜRLÜĞÜ BAĞLAMINDA İSLÂM HUKUKUNDA İRTİDÂD CEZASININ NEDENİ VE MAHİYETİ

THE REASON OF THE PENALTY OF APOSTASY AND IT'S NATURE IN THE CONTEXT OF FREEDOM OF RELIGION IN ISLÂMIC LAW

Özet

Kur'ân-ı Kerim, İslâm dininden dönenlerin dünyada ve ahirette acıklı bir azapla karşılaşacaklarını beyan etmekle birlikte dünyevî cezasının ne olduğunu bildirmemiştir. Hz. Peygamber'in bazı hadislerinde mürtedin kanının helal olacağı bildirilmekte, bazılarında da dinden dönenin öldürülmesi emredilmektedir. Fakat Hz. Peygamber'in bu konudaki tatbikatları farklı olmuştur. O, bazı mürtedleri affederken bazılarının öldürülmelerini emretmiştir. Fakat salt din değiştirmesi nedeniyle birini öldürttüğü rivayet edilmemiştir. Bu sebeple mürtede yapılacak muamele ile ilgili hadisler ve farklı uygulamalardan yola çıkan İslâm hukukçuları mürtedin öldürülme nedeni ve cezanın mahiyeti konusunda ihtilaf etmişlerdir. Hanefiler mürtedin öldürülme nedeninin dârulharbe giderek müslümanlara savaş açması olduğunu ve dârulislâmda ikamet ederek herhangi bir cinayete karışmayan mürtedin öldürülmeyeceği görüşünü benimsemişlerdir. Cumhur ise mürtedin tevbe etmediği takdirde ister dârulislâmda yaşasın ister dârulharbe gitsin salt irtidâdı nedeniyle öldürüleceği görüşünü benimsemiştir. Diğer taraftan Hanefîlerin çoğunluğu bu cezanın savaş fitnesine karşı kamu düzenini korumak için siyaseten meşru kılınan bir ceza olduğu görüşünü benimserken cumhur bunun şer'î bir had olduğunu söylemiştir. Tevbe ettiği takdirde mürtedin öldürülmeyeceği konusunda âlimlerin ittifakı mürtedin öldürülmesinin şer'î bir had olduğunu söylemeye imkân vermemektedir. Zira hadlerin tevbe ile sakıt olmayacağı konusunda bütün hukukçular ittifak etmişlerdir. Bu sebeple irtidâd cezasının nedeni ve mahiyeti konusunda Hanefîlerin yaklaşımının daha isabetli olduğunu belirtmemiz gerekir

Abstract

The Qur'an declared that who changed his religion will meet with a painful punishment in the world and in the Hereafter, but did not inform the worldly punishment. In some of the hadiths is declared that the blood of the apostate will be lawful, and in some it is ordered he wiil be killed.But the practice of the Prophet is different in this subject. The Prophet has ordered some of them to be killed, while forgiving some apostates.It was not narrated that he killed someone because of he changed his religion only.For this reason, the İslâmic lawyers acting from the hadiths and the different applications about the subject have disputed the reason of killing of apostate and the nature of the punishment.The Hanafites adopted that the reason of killing the apostate was to fight against the Muslims escaping to the country of idolaters, and that the apostate will not be killed when he reside between muslims and do not interfere in any murder. The majority adopted that if the apostate does not repent, he will be killed because of his mere apostasy whether or not he escaped to the country of idolaters.On the other hand, the majority of Hanafites adopted that this was a punishment politically legitimated to protect public order against the warfare, but the majorty said it was a Hadd. The alliance of scholars that the apostate will not be killed if he repents, does not allow to say that the killing the apostate is a Hadd. Because all the lawyers have allied that the Hadds shall not fall by repentance. For this reason, we need to point out that Hanafites' approach about the reason of punishment of apostasy and it's nature is more accurate Discussions on the situation of those who apostated from Islam in the Islamic law have a great place. The general acceptance among normal muslims who do not know the specifics of these debates is that those who apostate from the Islam after he has entered, are subjected to the death penalty. This acceptance stems from the fact that the Qur'an and Sunnah’ texts related to this subject are not known and understood sufficiently. It is also based on the assumption that all scholars have adopted the same view in this respect. Here, we will evaluate the views of the Islamic jurists regarding the ones who apostated from Islam according to the Islamic Criminal Law in the framework of the Qur'an and the Sunnah texts, then we will declare our own opinion about the subject. In principle, the Holy Qur'an does not approve that people are interfered with the choice of religion and that they are not forced to accept the religion. On the contrary, Qur’an wanted people to act completely free into believe or not believe in the religion of Islam. Because faith, when it has turned into concrete actions in individual and social life and has a quality that will shape human personality and character according to the purpose of creation, expresses value in the eyes of Islam. This is possible only if the person chooses the religion with his own mind and free will and confirms it in his inner world. The faith that takes place as an outcome of repression made from the outside and non-internalized does not give his own a religious identity and an Islamic posture. For this reason, such a faith is not desirable in the religion and the deed built upon it does not be acceptable too. Any coercion made from outside to the man for believing may even lead him to hypocrisy and consequent hell. For this reason, the Qur'an has liberated people completely in it’s universal message into believe or not to believe in with their own free will. For this reason, the Qur'an has not acknowledged a worldly punishment for apostates together with declaring that those apotated from the Islam will face a terrible punishment in the world and in the Hereafter. But in some hadiths, the Prophet declaring that the blood of apostates is lawful, in some hadiths it is seen that those who apostated from Islam are ordered to be killed. However, there is no information that the Prophet had killed anybody because of his absolute apostasy. When the narrations of the apostates ordered by the Prophet to be killed are examined, it will be seen that they are killed not only because of their apostasies, but also because of other destruction, such as killing a muslim beside their altitude and seizing the goods. The Islamic jurists who acted from the different narrations and practices of the Prophet disputed the cause of the murder of apostate and the nature of this punishment. According to the majority of the Hanafites, the mentioned texts of Qur’an and Sunnah declared that the reason of the murder of apostate is to fight against muslims. Therefore, according to them, the apostate can be killed if he joined the ranks of polytheists and warned against the muslims. The apostate, who does not interfere with another murder by continuing to live under the domination of muslims, is not killed. The majority of jurists, on the other hand, interpreted the same narrations on the contrary of the Hanafites and adopted the view that if the apostate did not repent, he would be killed only because of his apostasy. When examining the evidences of the majority in this regard, it is seen that none of the apostates who did not fight against the muslims and rebelled against the legitimate authority and did not disturb the public order, would be killed because of the simple apostasy. Therefore, it is understood that the opinion of the majority about the apostate will be killed because of his mere apostasy is not accurate. On the other hand, the Hanafites adopted the view that the punishment to be applied to the apostates is a punishment which was politically legitimated in order to protect public order due to his fighting against muslims, not a legal hadd to be inflicted due to the purely apostasy. The majority of Islamic jurists have accepted the opinion that the punishment of death will be applied to the apostate was a legal hadd to be inflicted as a obli