Full quote and overall meaning
The quote you are talking about is the following quote about the different views of scholars on the topic as dsiplaye din al-Mawsu'a al-Fiqhya الموسوعة الفقهية:
It says in al-Mawsoo‘ah al-Fiqhiyyah (27/53-54):
The Maalikis and Shaafa‘is are of the view that the one who does not pray out of carelessness and laziness, not because he denies that it is obligatory, is to be executed as a hadd punishment, i.e., after death he comes under the same ruling as other Muslims, so he is to be washed (ghusl), the funeral prayer is to be offered for him and he is to be buried with the Muslims.
The Hanbalis are of the view that the one who does not pray out of laziness is to be advised to do it and he should be told: If you pray, all well and good, otherwise we will execute you. Then if he prays, all well and good, otherwise he must be executed. But he is not to be executed until he has been detained for three days and called at the time of every prayer. Then if he prays, all well and good, otherwise he is to be executed as a hadd punishment or, it was said, he is to be executed for his disbelief, which means that he is not to be washed, the funeral prayer is not to be offered for him, and he is not to be buried in the Muslim graveyard. However he is not to be enslaved and his family and children are not to be taken captive, like other apostates. End quote.
Before explaining the bold part of the text. Which seems to me clear enough. As it displays the main difference between the usual or let's call it extended ruling on apostates and that on those who are regarded as apostates for not performing the prayer out of laziness and carelessness, while they claim to be Muslims or act like Muslims otherwise.
Overview on kinds of Muslims who don't pray and rulings
First of all the quote above is applies for the case of people who don't pray our of laziness and carelessness, not out of ignorance nor out of rejection nor a person who admits it being fard, but not performing it even if he'd be able to.
As you may read in the statement of imam ibn 'Abd al-Barr:
Ibn ‘Abd al-Barr (may Allah have mercy on him) said:
The Muslims are unanimously agreed that the one who denies that prayer is obligatory is a kaafir who is to be executed if he does not repent from that kufr. However they differed concerning the one who affirms that it is obligatory but deliberately does not do it even though he is able to.
End quote from al-Istidhkaar, 2/149
Mainly there are two kinds of people regarding the knowledge of the obligation to pray in Islam:
- An ignorant person, such as a new Muslim (convert) or person who didn't know because none in his environment performed it, but he claims to be Muslims: all these are excused, but must be taught how to performed it and start performing it once they know. Such a person wouldn't be declared as Kafir due to his earlier ignorance.
- A person who knows that the prayer is an obligatory deed and worship and doesn't perform it for whatever reasons: Such a person is regarded as Kafir (in any case according the view of the hanbali school of fiqh as the fatwa you are quoting from shows) and he would be given the possibility for repentance (three times/days) before executing him.
- A third kind is the special case of people claiming to be Muslims and rejecting the prayer here scholars have consensus in regarding this rejection as kufr with the rulings and procedure of giving the chance for repentance before execution - by authorities - described above.
Why the addition in the statement on the hanbali view?
Let's go back to the statement as said above the hanbali school of fiqh doesn't make a difference whether a person claims to be a Muslim and rejects to pray (which is clearly kufr) and one who knows he/she must pray, but doesn't pray out of laziness or carelessness.
Further the statement actually says people who don't pray due to laziness or careless can't be enslaved nor captured neither themselves nor their family members. At least according the view of the hanbali school of fiqh which goes beyond the views of the earlier quoted majority of shafi'is and malikis.
So the hanbalis declare such a person as kafir, but as he was a regarded a Muslim before they would apply (most of) the rulings of apostate on him:
- Giving him three opportunities to repent. If he repents and prays everything is fine. If not:
- Executing him.
- Not washing him nor praying the Janazah on him. This view is not the view of the malikis and shafi'is who'd go ahead like if he was a fasiq not a kafir.
- Not burying him in a Mulsim graveyard. Not applied by shafi'is and malikis.
The above rules are part of the rulings that apply on apostates. Here are some more:
Further if an apostate -not a in case of a person not praying as stated above- fled from a Muslim territory and found refuge in a non-Muslim territory and was caught by Muslims later the scholarly views are different as the Sahfi'i scholar al-Mawardi dsiplayed in his book al-Hawy al-Kabir fi Fiqh madhhab al-Imam a-Shafi'i
الحاوي الكبير في فقه مذهب الإمام الشافعي -I'll not add all details and the discussion of evidences of each view presented-:
In the following I'm translating from Arabic language as these translations are of my own take them carefully.
قال الماوردي : أما المرتدون إذا كانوا في دار الإسلام ولم يلحقوا بدار الحرب ، فلا خلاف نعرفه في أنه لا يجوز سبيهم ولا استرقاقهم : تغليبا لما تقدم من حرمة إسلامهم . ولا يجوز أن تؤكل ذبائحهم ، ولا ينكحوا : تغليبا لحكم شركهم ، ولا تقبل جزيتهم ، ولا يهادنوا : لأن قبول الجزية وعقد الهدنة موضوعان للإقرار على الكفر ، والمرتد لا يقر على كفره .
Al-Mawardi said: As for the apostates if they are in Dar al-Islam (house of Islam) and have not joined Dar al-Harb (the house of war: non-Muslim land), then there is no (scholarly) dispute that we know of that it is not permissible for them to be taken captive or to be enslaved: in order because of the fact that they were Muslims prior to that and (therefore their enslavement in case of capturing was) forbidden. And it is not permissible for their sacrifices to be eaten, and they do not marry: because here the ruling of them being polytheists (disbelievers) applies, their Jizyah (tribute) is not accepted, and do not compromise: because accepting the tribute and concluding a truce are subject to admission of disbelief, and the apostate does not acknowledge his infidelity.
As for the case if an apostate seeks refuge at a non-Muslim territory al-Mawardy says:
فأما إذا لحق المرتدون بدار الحرب ، أو انفردوا بدار صارت لهم كدار أهل الحرب ، فقد اختلف الصحابة رضي الله عنهم في جواز سبيهم واسترقاقهم .
But if the apostates joined the house of war (Dar al-Harb), or were alone in a house that became for them like the house of the people of war, then the Companions, may God be pleased with them, differed in the permissibility of their captivity and their enslavement.
Al-Mawardy then started to list the different views:
فذهب علي بن أبي طالب رضوان الله عليه : إلى جواز سبيهم واسترقاقهم ، كأهل الحرب اعتبارا بحكم الكفر ، وبه قال شاذ من الفقهاء .
So Ali bin Abi Talib, may God be pleased with him, went to the permissibility of their captivity and enslavement, as the people of war, considering the ruling of infidelity, and it was said by an the (rather) deviant jurists.
This view is regarded as rather strange and deviant, while:
وذهب أبو بكر رضي الله عنه : إلى تحريم سبيهم واسترقاقهم : تغليبا لحرمة ما تقدم من إسلامهم ، كما يحرم سبيهم واسترقاقهم في دار الإسلام ، وبه أخذ الشافعي وأكثر الفقهاء .
Abu Bakr, may God be pleased with him, went to the prohibition of their captivity and their enslavement: to overcome the sanctity of the foregoing believe and Islam, as it (Islam) makes their captivity and enslavement forbidden in the house of Islam, and this is taken by Al-Shafi’i and most of the jurists.
A third view is also displayed:
وقال أبو حنيفة : يجوز استرقاق المرتدة إذا لحقت بدار الحرب ، ولا يجوز استرقاق المرتد .
Abu Hanifa said: An apostate (female) may be enslaved if she joined the house of war, and an apostate may not be enslaved.
I hope now it is clearer why this last bold sentence had been added in the quote about the view of the hanbali school of fiqh: The rulings of apostate differ between schools of jurisprudence and between whether the apostate can flee to the Dar al-Kufr (al-Harb) or not.
