Question

Is it kufr to reject something upon which there is ijma’.  For example, the death penalty for apostasy. Many Muslims reject this law, and although its not proven from mutawatir ahadith (like stoning), there is still consensus on

Answer:

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

There are 3 different levels of Ijmāʿ in terms of transmission:
1)    Al-Ijmāʿ al-Mutawātir (Continual consensus)
2)    Al-Ijmāʿ al-Mashūr (well known consensus)
3)    Al-Ijmāʿ al-Āhādī (solitary consensus)[1]

Only the rejection of al-Ijmāʿ al-Mutawātir has the potential to take someone out of the fold of Islam. Rejecting al-Ijmāʿ al-Mashūr (well known consensus) or al-Ijmāʿ al-Āhādī (solitary consensus) will not result in apostasy.  However, a person who rejects al-Ijmāʿ al-Mashūr (well known consensus) or al-Ijmāʿ al-Āhādī (solitary consensus) will be regarded as deviant and must do Tawbah.

Furthermore, al-Ijmāʿ al-Mutawātir can only be established from the Sahābah Raḍiallahu `anhum.  `Allamah Qasim ibn Qutlūbgā rahimahullah mentions that only the rejection of the Ijmāʿ which was explicitly agreed to (taṣrīhan) by the ṣahābah raḍiallahu ʿanhum has the potential to take one out of the fold of Islam. 

Rejection of an ijmāʿ which has the explicit approval of some and tacit approval of others will not take one out of the fold of Islam.[2] Despite extensively researching, I have not been able to locate an ijmāʿ on the killing of apostates which has taṣrīh (explicit approval) of the Sahābah. 

Generally, whenever there is doubt in something resulting in disbelief or not, the Fuqahā’ do not issue a fatwa of disbelief.  Instead, the Fuqahā’ state that if there are 70 clear reasons to issue a fatwa of disbelief upon someone and 1 vague and unclear reason to prove he is a believer, the Muftī must issue a fatwa of the person being a believer and disregard the 70 clear reasons.[3]

And Allah Ta’ālā Knows Best

Mufti Faraz Adam 
www.darulfiqh.com