THE PHILOSOPHY OF CRIMINAL ACT OF APOSTASY MURTAD IN ISLAMIC LAW

Abstract

There are seven most serious crimes discussed by Islamic Law experts (fuqaha) referenced to the Qur’an (Allah SWT) and Sunnah (Rasulullah SAW) which are known as hudud criminal acts. There is no authority of the judge or ruler to determine or change the provisions of this sanction. Those criminal acts are adultery, qazf (adultery accusation), hirabah (robbery), sariqah (theft), syurb al-khamr (liquor), al-baghy (rebellion) and apostasy (renouncing Islam). Unlawful acts other than those seven criminal acts are called ta’zir criminal acts of which punishment provisions are stipulated by a judge or ulil amri. Six of the seven serious criminal acts in Islamic criminal law can be accepted by the law scholars as criminal acts because they meet the elements and criteria of a criminal act. However, one of them, apostasy, cannot be categorized as a criminal act. How is it to explain that an apostasy is a criminal act in Islamic Law? Why can not the concept of positive criminal law and human rights accept it? This requires a deep study. This paper will try to study the legal philosophy so it can reveal that an apostasy is a criminal act, both in the view of law scholars and especially Sharia scholars. Inability to reveal a legal philosophy can lead to imbalance, which is in Zainuddin (2016: 756-757) called as the legal dichotomy that leads to disharmony of Sharia and positive laws (Zainuddin, 2017).