Following an online discussion, I found it useful to go to al-Sarakhsi’s al-Mabsut and extract a more nuanced reading of his position on apostasy. All references are from the edition published by Dar al-Ma’rifah in 1989, vol X. These are research notes and not a developed thesis:
1) The idea, put forward by some scholars, that al-Sarakhsi did not hold the death penalty for the murtadd (apostate) is refuted by the opening lines of Bab al-Murtaddin (Chapter of the Apostates) on p. 98. He here repeats the standard Hanafi position that when a Muslim apostates, Islam is presented to him. He either enters into Islam or is killed on the spot, unless he asks for a delay, in which case he is given three days. What is very interesting about al-Sarakhsi’s discussion in al-Mabsut, however, is how he understands and explains the received rulings, and the legal reasoning that he demonstrates whilst doing so.
2) It is interesting to see where Bab al-Murtaddin is situated in his work. It is part of his Kitab al-Siyar (Book of Foreign Relations) and is followed by Bab al-Khawarij. It is not within Kitab al-Hudud. Also the plural title (al-Murtaddin) as opposed to the singular al-Murtadd gives an advance indication of the kind of understanding he will employ in this issue, one which distinguishes a political element to the rulings.
3) As part of his opening remarks in the chapter, al-Sarakhsi alludes to the following verse of the Qur’an in regard to the basis of obligation in the killing of apostates:
‘Tell the desert Arabs who stayed behind, ‘You will be called to face a people of great might in war and to fight them, unless they surrender: if you obey, God will reward you well, but if you turn away, as you have done before, He will punish you heavily.’ (al-Fath, 16)
However, he implicitly recognises that this is not clear evidence for the ruling by using the phrase ‘qila’ (it is said), which normally acknowledges a weaker opinion. He thereafter moves straight on to the evidences from the Sunnah. It can also be noted that the context of Surah al-Fath is one with a lot of emphasis on loyalty to God and His Messenger (saw), but punishment for failing in this is related to the Hereafter only (see verse 13).
4) Al-Sarakhsi quotes the ruling of Imam Abu Hanifah, recorded by Muhammad al-Hasan al-Shaybani, that female apostates are not to be killed but imprisoned until repenting or dying (p. 108). In putting forward his defence against the opinion of al-Shafi’i, who holds that the ruling is the same for a woman as for a man, he quotes narrations that suggest female apostates were only killed when they were combatants, or were encouraging fighting against the Muslims (p. 110).
5) The key passage follows:
‘It is probable that this [ruling of killing a certain female apostate] was from [Abu Bakr] al-Siddiq, may Allah be pleased with him, in the way of general welfare (maslahah) and politics, like he ordered the chopping of the hands of the women that beat the drum at the death of the Messenger, may Allah bless him and grant him peace, in order to convey their malicious joy. The meaning of it [the example of such a woman] is that she is a rejector of faith so is not killed – just like one who is initially a non-believer. This is because killing is not the punishment for apostasy, but is deserved on account of [violent] perseverance in rejecting faith. Do you not see that if such a person embraced Islam the punishment would be lifted on account of the absence of this perseverance? What is deserved as a punishment is not lifted by repentance – like the hudud. Once the cause of them is clear to the Imam, they are not lifted by repentance…Indeed, changing of one’s religion [away from Islam] and the initial state of disbelief are from the gravest crimes, but they are between a servant and his Lord, so the punishment for them is delayed until the the Abode of Requital. What is put forward in this world is of the nature of political legislation for the general benefit of humanity, like qisas (retaliation) for the preservation of life…in regard to the one persevering in rejecting faith, he is a belligerent to the Muslims, so he is killed to ward off warfare.’ (p. 110)
Thus we can see that al-Sarakhsi’s understanding of the issue is very much tied up with the political situation of the Muslim community and the meaning of apostasy as a political act and – in early Islamic history – one of hostility and war.
6) A final point relates to the terminology used by al-Sarakhsi. An interesting issue that has come up in discussion is the definition or meaning of ‘apostasy simpliciter’ and whether classical jurists would use such a term. On p. 109 al-Sarakhsi writes that ‘Women are not killed because they do not fight and in this there is no distinction between the initial and contingent states of disbelief (bayna al-kufr al-asli wa bayna al-kufri al-tari’). Here and elsewhere, al-Sarakhsi uses ‘al-kufr al-tari’ as a term to refer to apostasy as opposed to ‘al-kufr al-asli’ – the initial state of disbelief. His usage would suggest that al-kufr al-tari’ could be fairly well equated to ‘apostasy simpliciter’ (apostasy without qualification, usually understood in this discourse as apostasy in faith without necessarily comprising other further actions against the community), while ‘irtadd’ (apostasy) and ‘al-israr ‘ala al-kufr’ ([violent] perseverance in rejecting faith) refer to apostasy with a distinct political connotation. In al-Sarakhsi’s view, it seems it is this political element on which the death penalty is ultimately to be predicated, on the basis of maslahah (general welfare). Wa allahu a’lam.