is asked to repent; if he does so, he is spared, and if not, he is put to death.

Another view holds that he is indeed invited to repent, but should he refuse he is merely disciplined and not executed, for most innovators only reach disbelief through the implications of their words.

Mālik’s own position on this “disbelief by implication” (takfīr bi’l-māl) is not uniform. The term means that such people do not explicitly utter a statement of unbelief; rather, they voice propositions whose logical consequence is unbelief, while they themselves do not believe that consequence.

Liabilities incurred by these fighters, once they are captured, are as follows: if they repent, the ḥadd of ḥirābah is not enforced against them, nor is the wealth they seized taken from them—except for whatever is actually found in their possession, which must be returned to its owner. The jurists disagreed only on whether they should be killed in retribution for anyone they have slain.

One opinion holds that they are to be killed; this is the view of ʿAṭāʾ and Aṣbagh. Mutarrif and Ibn al-Mājishūn report from Mālik the opposite view—that they are not put to death—and this is the majority position, for anyone who fights on the basis of interpretation is certainly not a disbeliever. The precedent is the fighting that occurred among the Companions. Genuine unbelief, they say, lies in outright denial, not in misconstrued interpretation.

Chapter: The Ruling on the Apostate

If an apostate is seized before taking up arms, the jurists agree that the male is to be executed, in light of the Prophet’s saying, peace and blessings be upon him: “Whoever changes his religion, kill him.” They disagreed, however, about the woman: is she to be killed, and must she first be called to repent?

The majority hold that the woman is likewise executed. Abū Ḥanīfah maintains that she is not, likening her to an original non-Muslim. The majority rely on the general tenor of the texts, while an isolated group contended that she should be killed even if she returns to Islam.

With respect to inviting the apostate to repent, Mālik requires it before execution, following what he narrates from ʿUmar. Others argue that his repentance is not accepted at all.

If the apostate wages war and is then overcome, he is executed as a highway robber and is not offered repentance, whether his fighting took place in Muslim lands or after he had joined the land of war—unless he embraces Islam.

When the militant apostate accepts Islam, either after capture or beforehand, the rulings diverge. If his fighting was in enemy territory, Mālik treats him like a non-Muslim combatant who embraces Islam: no liability remains for anything he did during his apostasy. If, however, his fighting was in Muslim territory, his Islam removes only the penalty for ḥirābah; regarding other offenses, he is treated like an apostate who committed crimes in Muslim lands and then returned to Islam. Mālik’s disciples split on this point: those who look to the day the crime was committed deem him an apostate, whereas those who look to the day of judgment deem him a Muslim.

A further dispute in this chapter concerns the sorcerer. Mālik says he is put to death on account of disbelief, while others say he is not. The governing principle is that no one is executed unless disbelief is present.