Surah al-Ma'idah (The Table) 5 : 38

Overview (Verses 38- 40)

A Severe Punishment for Theft
 
This is followed by a legislation outlining the punishment for theft: “As for the man or the woman who is guilty of stealing, cut off their hands in requital for what they have wrought, as an exemplary punishment ordained by God. God is Almighty, Wise. But whoever repents after having thus done wrong, and makes amends, shall have his repentance accepted by God. God is Much-Forgiving, Merciful. Do you not know that to God belongs the kingdom of the heavens and the earth? He punishes whom He wills and forgives whom He wills. God has power over all things.” (Verses 38-40)
 
Muslim society provides for all inhabitants of the land of Islam, whatever faith they may have, enough to keep any thought of stealing far from any healthy mind. It guarantees good living, proper education and a system of fair distribution. At the same time, it makes private ownership the result of only legitimate means, and assigns to it a beneficial social role. Why, then, should any good person entertain any thought of stealing? When Muslim society has provided all this, it is only fair that it should prescribe a very stern punishment for theft, which represents an aggression on private ownership and the security of the community. This strong approach, however, is qualified by the fact that the enforcement of punishment is blocked when there is doubt as to the crime or its perpetrator. It provides all rights to the accused to prove his innocence so that no one is punished unless proven guilty beyond doubt.
 
What is left for us to say is that the Islamic system is a fully integrated one. We cannot properly understand the wisdom behind particular point of detail in its legislation unless we understand the nature of this system, its basic principles and its guarantees. Moreover, details of the Islamic system should not be implemented in isolation of the rest of the system. We cannot simply take one legal provision or one principle of Islam and try to implement it in a non-Muslim social set-up. Such an attempt is useless. Such partial implementation of Islamic law cannot be considered an implementation of Islam, because Islam cannot be implemented piecemeal. Islam has a complete system which affects all aspects of life when implemented. This applies to the legislation regarding theft as well as to all provisions of Islamic law.
 
To start with, Islam asserts that every individual in the Muslim community and in the land of Islam has the right to live and to have all the safeguards necessary to protect his or her life. Every individual is entitled to have enough to eat and drink, proper clothing and a home providing him with adequate shelter, where he can rest in comfort. The Muslim community represented by the Muslim government must provide every individual with all these essentials, firstly through his own work as long as he is able to work. The community is responsible to teach him how to work and to provide him with the means and the tools to do his work. If he remains unemployed, either because jobs or their tools are unavailable or because he is unable to work, either partially or totally, temporarily or permanently, then he has a claim against the Muslim community. The same applies if his earnings are not sufficient to meet his needs.
 
This claim gives an individual the right to still have his or her needs satisfied in different ways. There is firstly a maintenance allowance, which could be imposed on those members of his own household who can afford it. Secondly, his maintenance can be imposed on certain people in his locality. Thirdly, he is entitled to be supported by the state, since such a person, man or woman, child or adult, qualifies as a beneficiary of zakāt. If zakāt funds are insufficient to provide adequate support to all people in need, then the Muslim state, which implements the whole of Islamic law in the land of Islam, can impose an additional tax on those who are well off in order to satisfy the needs of the underprivileged. The condition to be observed in such a situation is that what is so imposed must remain reasonable, fair and adequate. It must not constitute an injustice to those who make their earnings through legitimate means.
 
Islam is also strict in its view on legitimate earnings. Private ownership can come only through what is permissible. Hence, such ownership does not create a grudge motivating those who are deprived to lay their hands on the property of others, particularly since the system ensures fair distribution and does not neglect anyone’s needs.
 
Moreover, Islam works on people’s consciences and strengthens their moral sense. It directs their thinking towards earning through work not through theft. If work is unavailable or insufficient, the community helps them meet their needs. Thus, Islam gives them their right with honour.
 
Under such a system, why should anyone steal? Theft cannot be committed to satisfy a legitimate need. Its purpose is to get rich without working for it. Wealth cannot be sought through depriving the Muslim community in the land of Islam from the security to which it is legitimately entitled. Those who have earned their money in a fair and legitimate way are entitled to enjoy their earnings in peace.
 
Similarly, every individual in such a community is entitled to earn money fairly and legitimately. No usury, cheating, monopoly or wrongful exploitation of labour is allowed. Moreover, whoever has money must pay his zakāt liability and pay his share of what the community may need. When all this has been fulfilled, it is only right that everyone should have security for their property. If someone steals after having all his needs satisfied, knowing that theft is forbidden and having no reasonable need to lay his hands on the property of others, he commits a crime for which he has no justification. Hence, no mercy should be shown to him once he is proven guilty.
 
However, when there is doubt as to the circumstances of the crime, then the general Islamic principle of blocking punishment in cases of doubt comes into operation. Hence, when the Muslim state was stricken by famine, `Umar, the second Caliph, suspended the enforcement of the punishment for theft. He did the same in one particular case, which has been documented. The servants of the son of Ĥāţib ibn Abī Balta`ah stole a camel which belonged to a man of the tribe of Muzaynah. When they were proven guilty, `Umar ordered- their hands to be cut off. However, on learning that their master kept them hungry, `Umar stopped the punishment from being enforced. He further punished their master, imposing on him a fine equivalent to the price of two camels. It is within this context that we should understand the punishments imposed by Islam as part of its comprehensive system providing guarantees for all, not for a particular class at the expense of another. It is a system which relies on protection before it imposes punishment. It only punishes wrongdoers who commit totally unjustified crimes.
 
Having explained this general rule about the Islamic system, let us discuss the particular punishment of theft. Theft is to take surreptitiously the property of others which is kept in a private place. What is taken, therefore, must be a property of a certain value. The minimum limit which, if taken surreptitiously, constitutes theft is agreed by scholars to be equivalent to one quarter of one dīnār, which is approximately equal to 25 Egyptian piastres in our present currency. Moreover, what is stolen must be kept in a private place and the thief must take it out of this place. This means that a person who steals property which is given to him for safe custody is not punished by cutting off his hand. Nor does this punishment apply to a servant who is allowed to enter the home of his owner, because what he steals is not kept in a place which is restricted from him. Nor is the punishment enforced against someone who has borrowed a certain property and who then denies having borrowed it, nor in the case of someone who steals fruits or crops until they have been put in a barn or a store. Similarly, the punishment is not enforced in the case of stealing property if it is found lying outside the place where it is normally placed for safekeeping. Moreover, the stolen property must belong entirely to someone else. Therefore, if one partner steals something which belongs to a partnership his hand is not cut off because he has a share in what he has stolen. Nor is a thief punished by cutting his hands off if he has stolen something from the state treasury because he has a partial claim to it. In all such cases, the thief is given a lesser punishment such as flogging, imprisonment or verbal reproach, as the judge may think fit, according to the circumstances of the case.
 
When a thief is punished, his hand is cut off up to the wrist. If he commits theft again, then his left foot is cut off up to the ankle. In case of a third or fourth theft, scholars have different views as to what is cut off.
 
Where any doubt exists, enforcement of the punishment is blocked. If it is suspected that the person concerned stole food to eat when he was hungry, or to meet a particular need, or if it is suspected that he had a share in the stolen property, then these are reasons which prevent his hands from being cut off. If the theft is proven through personal confession without there being witnesses to give evidence, then withdrawal of the confession is sufficient to prevent enforcement of the punishment. Similarly, if the witnesses recant, punishment is not enforced.
 
Leading scholars have different views on what constitutes doubt. Imām Abū Ĥanīfah blocks enforcement of the punishment if what is stolen is considered common property in the first place, even though it has been subsequently placed within private ownership. This applies to stealing water from someone’s private place or stealing game animals after they have been hunted. Abū Ĥanīfah’s view is that since such matters are in the first place co n property, there is doubt as to their remaining so after being kept in a private place. Mālik, al-Shāfi`ī and Ahmad, the founders of the other three schools of Islamic law, are of the view that the punishment of cutting off a thief’s hand is enforceable in these cases. Abū Ĥanīfah also blocks enforcement of this punishment in the case of stealing something which may become rotten after a short period of time, as in the case of stealing raw meat or other types of food. The other three schools of law as well as Abū Yūsuf, the second highest ranking scholar of the Ĥanafī school, disagree.
 
To discuss the different views of scholars in detail is beyond the scope of this commentary. They can be easily referred to in books of Filth. We have cited these examples to demonstrate how lenient Islam is and how keen it is not to enforce punishment in any case of doubt. God’s Messenger (peace be upon him) clearly said: “Block the enforcement of prescribed punishments in any case of doubt.” Whilst `Umar ibn al-Khaţţāb said: “To suspend punishment as a result of doubt is much more preferable to me than to enforce it despite doubt.”
 
A Punishment to Fit the Crime
 
Having explained the reasons for imposing such a stern punishment for theft in the land where Islamic law is implemented, providing all guarantees of justice and fair distribution as well as the means of protection for all, we need to say a word about the suitability of this punishment to the crime of theft in a Muslim community.
 
When someone thinks of stealing, he actually thinks of increasing what he owns at the expense of someone else. He feels that what he earns legitimately is too little for him and, therefore, he wishes to add to it in an illegitimate way. The fruits of his own labour do not satisfy his greed and he wants to appear to be wealthy or to get himself in a position where he does not need to work or where he is assured of a comfortable life in future. In short, the motive for stealing is to increase one’s income or one’s wealth. Islam counters this motive by prescribing the punishment of cutting off the thief’s hand or leg, since such a punishment will markedly decrease the thief’s ability to work and reduce his income and wealth. When a thief is punished according to Islam, his ability to show off is greatly curtailed and his need to work hard is much greater. Moreover, his worry about his future is infinitely greater.
 
We see, then, that by prescribing the punishment of cutting off a thief’s hand, Islamic law counters the psychological motives of theft with even stronger psychological factors which resist the temptation to steal. If a person, nevertheless, yields to temptation and is guilty of stealing, the severity of the punishment will have lasting effects on him, which will also prevent him from repeating the offence.
 
This is the basis for the Islamic punishment of theft. It is indeed the best basis for punishing this crime, ever since the creation of mankind.
 
Most legal codes punish theft with imprisonment, a punishment that has failed miserably in combating crime in general and theft in particular. This failure is due to the fact that imprisonment does not strengthen any psychological influence on a thief to turn him away from stealing. It does not prevent him from work and earning except for the duration of his time of imprisonment, when he has no need to earn since his basic needs are met. When he is discharged, he can go back to his work. Indeed, he has every chance to increase his wealth by both legitimate and illegitimate means. He can easily pretend to be a man of honour and integrity to secure the help of others. If eventually, he achieves his goal, well and good; or that is what he thinks. If not, his loss is minimal.
 
On the other hand, if a person guilty of stealing has his hand cut off, his punishment drastically reduces his ability to work and earn. This means in practical terms that his chances of increasing his income are almost lost, while a drastic reduction in income is most probable. He will not be able to win people’s confidence as his own hand tells of his past crime. The unmistakable result, then, is that a thief will definitely end up in a loss situation if he is punished, while he is more likely to profit if he receives a prison sentence. It is in human nature that people do not hesitate to do what is likely to bring them profit and to refrain from something which makes loss a certainty.
 
I wonder at those who claim that the Islamic punishment of cutting off the hand of a thief is not suitable to our present society, in view of the great advancement achieved by mankind. Do progress and advancement mean that we should encourage and reward a thief and allow people to live in fear? Or do they mean that we should work hard so that thieves and drop-outs get away with the fruits of our labour? Or do they mean that we ignore the findings of science and human nature as well as the results of human experience and the conclusions of logical thinking in favour of an argument which is supported by new evidence, simply because it receives much propaganda?
 
If effectiveness in reducing crime is the criterion which makes a certain punishment fitting to an age of progress and advancement, then imprisonment should be abolished as a punishment for theft and replaced by cutting off thieves’ hands. This is because the latter is supported by undeniable psychological evidence, human nature and experience as well as logic. While imprisonment as a punishment is supported by none of these.
 
The basis of this Islamic punishment is a thorough study of human nature and human thinking. It is then, suitable for both the individual and community because it reduces crime and increases security. As such, it is the best and fairest punishment.
 
Despite all this, some people object to the Islamic punishment for theft, because they find it cruel. Indeed, this is their only argument. But it is indeed a hollow argument, because no punishment is effective if it is felt not to be serious. Indeed, a punishment must be stern if it is to be a true punishment.
 
God, who is the Most Compassionate of all those who exercise mercy, says as He makes the punishment for theft so severe: “Cut off their hands in requital for what they have wrought, as an exemplary punishment ordained by God.” (Verse 38) It is, then, a stern punishment meant to be a deterrent. To deter someone from committing a crime is an act of mercy to that person, because he is prevented from becoming a criminal. It is also an act of grace to the whole community, because it ensures peace and security. No one may claim to be more merciful to people than God who created them except one with a blind mind and a dull soul. Practical evidence shows that this punishment was not enforced except in a handful of cases during a period approaching a whole century at the beginning of Islam. This is because Islamic society, with its own system and severe punishments and the safeguards it puts in place, did not witness any more crimes.
 
God then opens the door for anyone who wishes to repent and mend his ways, adding to that a demonstration of positive intent through good action: “But whoever repents after having thus done wrong, and makes amends, shall have his repentance accepted by God. God is Much-Forgiving, Merciful.” (Verse 39)
 
Wrongdoing is an active step that produces evil results. Hence, it is not sufficient that a wrongdoer should stop his evil action. He should move further and do some goodly work that produces good results. But the case is more profound in Islamic thinking. A human soul must always be active. If it stops its evil and corrupting work, without moving on to produce something good, it continues to lack fulfilment. This may bring about a setback returning it to evil. When it moves on to active goodness, it is more secure against a return to erring ways. This is, then, the method Islam follows in its work to produce a goodly society. It is a Divine method, meant by God, the Creator of all who knows what suits all, to produce the desired results.
 
Finally the sūrah states the overall principle of punishment in this life and in the Hereafter. God, the Creator and Owner of the universe, can will anything and determine the fate of every creature. It is He who enacts legislation for people to implement in their lives, and it is He who rewards them for their actions both in this life and in the life to come: “Do you not know that to God belongs the kingdom of the heavens and the earth? He punishes whom He wills and forgives whom He wills. God has power over all things.” (Verse 40) It is then a single authority of dominion which issues legislation in this life and administers reward and retribution in the life to come. There is no division or multiplicity of authority. Indeed, human life can only be set right when the authority to legislate and to reward is united in both this life and the life to come.