MAQASIDU SHARIAH [MIFB 6083]

ASSIGNMENT

TITLE
The wisdom of legislation of cutting off a hand in the quarter of a dinar and make its Diyah five hudred dinars

Prepared by

Nuradin Abdi Elmi [A1020624M04]

Prepared for
DR. NUR ABDI GUDLE

CONTENTS

Introduction................................................................................................................................................................................1

The philosophy of punishments in Islam .......................................................................................................2 Punishment for theft in the Islamic law............................................................................................................4
Definition of theft: .....................................................................................................................................................................4

The ruling of theft in Islam...........................................................................................................................................6 Conditions for theft punishment.............................................................................................................................7 Philosophy of legislation of cutting a hand....................................................................................................8 Conclusion...............................................................................................................................................................................14 References...............................................................................................................................................................................15

Introduction

187:

(.

These are the limits (set) by Allh, so approach them not. Thus does Allh make clear His Ayt (proofs, evidences, lessons, signs, revelations, verses, laws, legal and illegal things Allahs set limits orders.) to mankind that they may become Al- Muttaqun [Al-Baqarah:187]1

The world today presents a horrific scenario of crime, violence, killing and a determined attempt to destroy the very pillars of social order which sustain peace, tolerance, harmony and human dignity. The lives of millions around the world have been ruined and are going through an unbearable syndrome of traumatic suffering and ruthless devastation. The misuse of modern technology has given rise to a global institution of a criminal order which is the most critical challenge to the world today. The world is dearly searching for ways to combat, control and check the raging storm of crime, and that makes it all the more pertinent to study the Philosophy of Punishments in Islam 2. According to Muslim perception, Islam is not only a religion but also a civilisation and social order based upon revealed principles. Islam stands out distinctly among the religions of the world in that its punishment and retribution laws are applied under exclusive rules and regulations, dealing with matters related to obligations to Allah and obligations to human kind. The Shari'ah encompasses and governs every sphere of human activity including the spiritual, moral, social, economic and political aspects of life and according to H.A.R. Gibb, it is "the most far-reaching and effective agent in moulding the social order and the community life of the Muslim people".3 It is the only perfect system of justice that could solve all of world's problems including the crime problem which is seriously affecting and worrying our societies as it is something that "God in His (Infinite) Wisdom has ordained for the well being of all mankind".4 Islam denotes the complete submission to Allah, which is only possible "if the Shari'ah is fully applied in its totality".5 The "Shari'ah is an integrated homogenous whole"6 and any of its specific provisions should be looked at within the overall context and not in isolation because "any arbitrary division of the scheme is bound to harm the 'spirit' as well as the structure of the Shari'ah"7. Hence the Islamic penal system, as our topic deals with, should be "viewed with the background of the whole Islamic system of life covering the economic, social, political and educational spheres of

1
2 3

Muhsin Khan, Quran English translation available at http://www.guidedways.com

Dr. Iftikar Ayaz O.B.E (2009), The philosophy of punishments in Islam, available at: review of religions.org/87 Mohammedanism (Oxford 1961) quoted in Islamic Studies: Autumn 1987 4 Amin p.53 5 Mumtaz Ali p.67. See also the following verses of the Qur'an - 4:65/33:36/4:59/8:1 and 5:50 6 Murad p.16 7 Mawdudi: Islamic Law p.18.

activity"8 and not in isolation as is often portrayed and distorted by the media and many western critics.

The philosophy of punishments in Islam

Traditionally it is said that the Shari'ah is divided into five main branches-I'tiqadat (beliefs), 'ibadah (ritual worship), adaab (morals and manners), mu'amalat (transactions and contracts) and 'uqubat (punishments).9 The Shari'ah protects and defends religion, life, intellect, progeny and property. Hence the penal system is absolutely vital in guaranteeing these fundamental human rights, as it is "the defence system in any society"10 which upholds the values and preserves the institutions of that society otherwise "the entire fabric of society will crumble"11 as "it is on the proper and most effective administration of law that a society is moulded into what it should be".12 Therefore the Islamic penal system is just one of many branches of Shari'ah and it will be unfair for a critic, to single out some aspects of its penal policy in isolation to judge the merit or de-merit of the Islamic law without looking at the "context of its total scheme - its conceptual basis, primary objectives and goals and overall framework".13 The concepts of crime and punishment in the Shari'ah were tailor made "to bring about the kind of society and moral order that the religion of Islam foresaw".14 In fact there are arguments to suggest that Islamic punishments are only applicable and enforceable in a just and proper Islamic state where the socio-economic and political systems are fully operating according to Shari'ah. There is a saying that "you can bend the necks but you can't change the hearts"- so punishment alone cannot ensure compliance with the law or solve the problem of crime. In an Islamic state, punishment follows a long series of prohibitory and reformatory steps where all efforts are made to engender attitudes of contempt for crime and eliminate all the root 'causes' of crime and to create a healthy crime-free environment. Even then punishment is not meted out for all breaches of the Shari'ah but only certain specifically defined crimes with strict conditions "because of their bearing upon the establishment of peace and order".15 It has been argued by many renowned jurists and criminologists that "it is an essential requirement for a 'viable' legal system to be inclusive of both fixed and variable elements in its

Ibid. p.4 Mufti Kefayatullah: Ta'leemul Islam. See Hughes' "Dictionary of Islam" pp.285-6 10 Haroon p.12 11 Shah Waliullah: Hujjatullahil Baalighah Vol.1 p.451- quoted by Gilani p.363 12 Mashriqi p.10 13 Murad p.10. Out of a total of 6683 verses in the Qur'an, "it contains no more than 500 of them concerning 'legal' matters, of which, some 80 are 'legislative' in the strict sense of the term" [Vijapur p.33] and surprisingly, the Qur'an only refers to five 'penal' sanctions [Kamali p.30]. Therefore in Islamic Law, "the list of prohibitions far more outweighs the list of punishments" [Sherwam p.29]. 14 Suleman Siddiqi p.176 15 Muslehuddin p.16
9

penal postulates".16 Islam, being cognizant of human conditions, provides for this when it divides its penal penalties in three categories. The first and most severe type of punishments are known as the hudood (singular hadd) meaning a thing which restrains or prevents since a punishment "prevents a man from doing crimes".17 However, it is a strictly defined penalty which is mentioned in the Qur'an or the Hadith and it includes adultery, fornication, false imputation of unchastity (qadhf), drunkenness, armed robbery, sedition and apostasy, though there are some disagreements on whether one or two are technically described as 'hudood'. 18 Because of "the decisive nature of hadd, its severity and its exactness and its strictness in the rules of evidence", it has "considerably limited the severest penalties".19 The second category of punishment, known as qisas (equitable retribution)20, is inflicted for deliberate killing or wounding of a person. Unlike hadd, the penalty could be waived by the victim or his heir in lieu of blood-money (diya), but for unintentional homicide or wounding there is no retribution and only compensation is paid. The Qur'an teaches that: 179: ] ]

"And for you in equitable retribution there is Life, O people of understanding, that you may ward off evil" (2: 179)21.

The third category of punishment is known as ta'zeer (discretionary punishment) and it is "a sentence or punishment whose measure is not fixed by the Shari'ah"22 neither as to the offence nor the penalty. It helps to meet varying circumstances (e.g. if a definitional element is short in a hadd offence) and the punishment that was generally inflicted in the past was whipping, though other alternatives such as a warning, fines and imprisonment could be given, but the quantum of punishment for ta'zeer is generally much below that of hadd. Unlike man made legal systems that exist today, Shariah blocks all approaches to the path of crime. To prevent crime, Islam aims at eliminating the conditions that produce it. It seeks to remove the very root-cause of all crime by working a complete moral reformation in man. The phrase used in the Holy Qur an is, do not go near the evil; do not go near the limits set by Allah.

16

17

Roscoe Pound: Interpretation of Legal History p.l- quoted by Tahirul Qadri p.5 & Gilani p.364 Ahmad Hasan: Sunan Abu Dawud Vol.3 p.1212 n.3793 18 Haroon p.29. For the sake of brevity, I have just used the word slander for false imputation of unchastity elsewhere in this essay. 19 Encyclopaedia of Religion and Ethics V 01.16 p.809 20 To translate Qisas as "retaliation' is incorrect according to Yusuf Ali and Asad because "Retaliation in English has a wider meaning, equivalent almost to 'returning evil for evil', and would more fitly apply to the blood feuds of the Days of Ignorance" [Yusuf Ali: The Holy Qur'an 2: 178 p. 70]. See also Asad's commentary on the same verse. 21 "The object of taking only 'one' life (that of the murderer) in retaliation of another life (that of the murdered) was, as indicated by the Ayahitself, to 'ward off evil' and to protect the community from continued vengeance" (like the custom of Jahiliyyah) [Sherwani p.43]. 22 Mahfodz Bin Mohamed p.5

Thus, Islam attempts to stop crime before it occurs by removing the conditions and inclinations and closes all approaches to the path of crime 23. There is another outstanding difference between the punish-ments imposed by Islam and by other Legal systems. It is that the harsher the punishment imposed by Islam, in the same tone, it imposes vigorous preventive measures to be taken to save people from committing that offence and at the same time very strict rules for the conviction of an offender so that no innocent is convicted. In the case of adultery for example, the strict condition of four witnesses who actually watched the act is to ensure that there is absolutely not an iota of doubt in the allegation. Moreover, the integrity and the credibility of the witnesses is of utmost importance, not only that the witnesses have a track record of being truthful but they should have a reputation of being civilised and respectable. All these measures are to guarantee that no one innocent of crime is victimised. Moreover the Islamic laws pertaining to witnesses are so tough that there is no example of it in any other witness rules and regulations in the world. So, the strict preventive measures that Islam has provided for the termination of crime are to ensure the establishment and sustenance of a pure social environment. Moreover, even after the offences, the precautions Islam has stipulated are such that unless someone has turned totally shameless and daring and has become a danger to the society, the chances of punishment under the Islamic law would be uncommon. Islam has taken every possible step to make sure that the occasions demanding punishment are in the least. But when punishment is meted out it should be of such severity that it discourages the future recom-mitment of the offence in the society 24. These preventive measures ensure the main objective of Shariah which is protection of property and life so that the economy grows healthily and without the presence of fear from being stolen or robbed. Social security would be achieved as a result. Islam gives highest priority in achieving tranquility and social order so that muslims achieve their search of welbeing in both the worldy life and hereafter.

Punishment for theft in the Islamic law

Definition of theft: Literally theft means to take something secretly 25 Technically: taking away the property of another in a secret manner

26

Ibid to p. 1 Ibid to p. 1 25 Mohammed Bin Ahmed Shadiri, Yaqutu Nafees, Hadd Sirqah, 3/216 26 Wahbah Zuhaili, Fiqh Al-Islami Wa adilatuh, Hadd Sirqah, Chapter 3, p 92
24

23

Other definitions include: Calandestine removal of legally recognised property (mal) in the safe keeping (hirz) of another of a definite minimum value (nisab) to which the thief has no right of ownership 27 taking away Property (mal), unfairly (thulman) in a secret manner (khufyah) when such property is the custody of someone (Hirz mithlih) together with other conditions 28 From the definitions let us take out four basic elements for theft29: 1) taking property without owner s consent; 2) the property should be wealth (Mal); 3) belong to another; and 4) taking it with criminal intention.30 The first element is to take property without owner s knowledge. For instance, if A takes B's property while A is not at home or while A is sleeping; but if A takes B s property with B s knowledge, it is not considered theft; but if A takes property from B by using force against property and not against B, to take the property in this way it is considered snatch theft. But if A takes property from B by using force against B or had threatened him, this case is called robbery (hirabah). On the other hand, if A takes B s property with his consent, it is not theft, so it is not a crime and A is not guilty. The second element for theft under Islamic law is, the property should be wealth (Mal). The property should be removable property such as cars, books, and so on. And the property that is capable of being stolen should be valuable property. If the property is not valuable such as pork and wine, these kinds of property are not capable of being stolen. The property should be in place for custody (hirz), if the property is not in the custody, it is not capable of being stolen. Another point about property should be reached the limitation (nisab). So if it does not reach (nisab), there will not be Hadd punishment, for cutting hand as a punishment for the theft, the value of property should reach a quarter dinar, so if it is less than this amount, it is theft but not punishment of cutting hand, the punishment will be ta zeer. 31 The third element of theft is (belonging to another). If the property belongs to the thief himself, then it is not considered theft even though he takes from custody. The property belongs to someone at the time of appropriation; if it does not belong to anyone then it is not considered crime if someone takes it such as the taking of wild animals.

27

E.J. Brill's first encyclopaedia of Islam (1913-1936), Volume 2, By Martijn Houtsma, p 173 availabale at: http://books.google.com/books

28
29

Ibid p. 25

Shamselden A. Salh (2006), THE LAW OF THEFT: A COMPARATIVE AND ANALYTICAL STUDY BETWEEN COMMON LAW, MALAYSIAN LAW AND ISLAMIC LAW, International Islamic University Malaysia 30 Abdul Qadir Awdah, al-Tashri al-Jinai al-Islami, Vol 2 Beirut, 1996, pp514, 518. See also Mohammed Bin Ahmed Shadiri, Yaqutu Nafees, Hadd Sirqah, 3/216 31 Ibid p.580

The last element for theft is taking with dishonest intention : it means if accused takes someone s property without criminal intention or dishonest intention, he did no crime. For example, A takes B s ball. After he plays with it he returns the ball to B.

The ruling of theft in Islam

Theft is Haraam (forbidden) according to the Quran, Sunnah [sayings of Prophet Muhammad, (sallallaahu alayhi wa sallam)] and Ijmaa (scholarly consensus). Allaah, the Most Exalted, has condemned this action and decreed an appropriate punishment for it. The Hadd [i.e. the legal punishment prescribed by the Sharee'ah (Islamic law)] for a thief is to cut off the thief's hand.32 Allah Almighty Says in the Noble Quran : 38: ( )

[As for] the thief, the male and the female, amputate their hands in recompense for what they earned [i.e. committed] as a deterrent [punishment] from Allaah. And Allaah is Exalted in Might and Wise. (Al-Maidah:38)33

The Prophet, sallallaahu alayhi wa sallam said: . : : -

The hand (of the thief) should be cut off for (the theft of) a quarter of a Dinar or more.34

The Prophet, sallallaahu alayhi wa sallam, cursed the thief because he is a corrupt element in society, and if he is left unpunished, his corruption will spread and infect the body of the Ummah (Muslim community). He, sallallaahu alayhi wa sallam, said: ,
May Allaah curse the thief who steals an egg and has his hand cut off, or steals a rope and has his hand cut off. [Mutafaq Alaih]35

What indicates that this ruling is definitive is the fact that a Makhzoomi noblewoman (from the tribe of Makhzoom) stole at the time of the Prophet, sallallaahu alayhi wa sallam, and Usaamah Ibn Zayd, may Allaah be pleased with him, wanted to intercede for her. The Prophet, sallallaahu alayhi wa sallam, became angry and said:
32

33

See al-Jaami li Ahkaam al-Qur aan, 6/159; al-Mulakhkhas al-Fiqhi, 2/442 Translation available at: http://quran.muslim-web.com 34 Al-Bukhari: Al-huduud (6790) 35 Al-Bukhari: Al-huduud (6783), Muslim: Al-huduud (1687)

:
Do you intercede concerning one of the Hadd set by Allaah? Those who came before you were destroyed because if a rich man among them stole, they would let him off, but if a lowly person stole, they would carry out the punishment on him. By Allaah, if Faatimah Bint (daughter of) Muhammad were to steal, I would cut off her hand. [Mutafaq Alaih] 36

This is the ruling of Allaah concerning theft; that the hand should be cut off from the wrist joint.37 Al-Nawawi, may Allaah have mercy upon him, said in his commentary on Saheeh Muslim (Hadeeth collection): Al-Shaafa'i, Abu Haneefah, Maalik and the majority (of scholars), may Allaah have mercy upon them, said: "The hand should be cut off from the wrist, where the hand meets the forearm." Al-Qurtubi, may Allaah have mercy upon him, said: "All the scholars said: The hand should be cut off from the wrist, not as some of the innovators do when they cut off the fingers and leave the thumb."38

Conditions for theft punishment

a) Conditions for the thief: - Must be an adult39. So if the thief is not an adult his hands cannot be amputed. - The thief must be sane. So if an insane person robs, his hand is not amputed. - The thief must not have resorted to stealing under duress, if he had been compelled to do so, the hadd is not applied.40 - The thief must be knowlegable of the prohibition of theft. So If she/he is ignorant about the prohibitoin of theft, there is no cutting of hand. However if he knew about the prohibtion, but is ignorant about the ruling of cutting hand, the hadd should be applied; thief s hand should be cut.41 b) Conditions for the Stolen Property - The stolen property should be something of worth, because that which is of no worth has no sanctity, such as musical instruments, wine and pigs.42

36 37

Al-Bukhari: Al-Muqhazi (4304), Muslim: Al-huduud (1688) See Wahbah Zuhaili, Fiqh Al-Islami Wa adilatuh, Hadd Sirqah, Chapter 3, p95. See also Mohammed Bin Ahmed Shadiri, Yaqutu Nafees, Hadd Sirqah, 3/229 38 See al-Jaami li Ahkaam al-Qur aan, 6/159; al-Mulakhkhas al-Fiqhi, 2/442 39 The signs of adulthood according to Shari a are the completion of fifteen lunar years for a boy and nine lunar years for a girl. Another sign of maturity is the growth of pubic hair. The third sign is the ejaculation of semen in boys and the beginning of the menstrual cycle in the girl. 40 Mohammed Bin Ahmed Shadiri, Yaqutu Nafees, Hadd Sirqah, 3/220 41 Ibid p 220 42 Al-Jaami li Ahkaam al-Qur aan, 6/159; al-Mulakhkhas al-Fiqhi, 2/442

The value of the stolen property should be above a certain limit, which is three Islamic Dirhams or a quarter of an Islamic Dinar, or their equivalent in other currencies.43 The thing should have been taken by stealth; if it was not taken by stealth, then the hand should not be cut off, such as when property has been seized by force in front of other people, because in this case the owner of the property could have asked for help to stop the thief. Jabir narrated from the Prophet ( ) that he said: "
No cutting for a traitor, robber or a peculator44

"

The stolen property should have been taken from a place where it had been put away (hirz) , i.e., a place where people usually put their property, such as a cupboard, for example. 45

c) Other conditions - All traces of doubt should be eliminated. For example, the husband steals from the wife or someone steals a charity property such as waqf.46 - The theft itself has to be proven, either by testimony or by the confession of the thief.47

Philosophy of legislation of cutting a hand

As said earlier Shariah is based on five objectives so that we get a healthy society free from all evil. Theft which is one of worst crimes has been condemned by Islam and even imposed a severe punishment on those who act to violate rules set by Shariah and dare to perform stealing. Theft is prohibited to protect property of citizens to achieve stabilised business environment and halal way of seeking risq and wealth as one of the very basic things encouraged by Islam. To understand the philosophy of this punishment, it would be helpful to comprehend the background of the society which Islam envisages to establish. Knowledge of the financial guarantee an Islamic economic system provides to every citizen of the country is also necessary. According to Mawdudi "Islam aims at creating a society in which none is compelled by the force

Ibid. Tirmizi: Al-Huduud (1448), Nisa i: Qad Yadd (4971), Abu Dawud: Al-Huduud (4391), Ibn Majah: Al-Huduud (2591), Ahmad (3/380), Darami: Al-huduud (2310) 45 To identify hirz or the place that would provide safe custody for the property we consider Urf and Al-Qazali adds that it is anywhere which is not considered as loose or unsafe which might differ in terms of property type, time and conditions. See Yaqutu Nafees, Hadd Sirqah, 3/223 46 See Yaqutu Nafees, Hadd Sirqah, 3/224, Also see Wahabah Zuhaili, Fiqh Al Islami Wa Adillatuh, Hadd Sirqah, 6/120 47 Ibid p.123
44

43

of circumstances to steal".48 Rights and duties are reciprocal in Islam and "no duty is ever imposed on man without his being granted a corresponding right".49 In an Islamic state, every individual is entitled to social security (Protection of Life and Property) collected from various sources including the obligatory collection of zakat in which the poor and needy in the society are provided a living and the basic needs of all citizens are adequately met, because according to a saying of the prophet, every son of Adam is entitled to food, clothing and shelter.50 It is only after the state discharges its own duty that it can impose the penalty on a thief, who selfishly intrudes on the rights of others despite being provided with all the basic amenities of life. Hence if a citizen is forced by circumstances (e.g. poverty), the society will be considered at fault and no hadd punishment will be given to the accused. It was in this light that the second Khalifah Umar, who was well known for his "strict rigidity in enforcing the rules of Shari'ah"51, waived the cutting off the hand for theft during a period of famine.52 As far the structure of society is concerned, Islam builds it on simple living, truth, righteousness and abstinence from absurdities of life and senseless customs. Islam establishes a society which is pure of such problems and has the least causes to tempt someone to steal. These are the aspects of the society irrespective of religion or belief that are to be observed by every subject of an Islamic State. As far as Muslims are concerned, there is emphasis on worship and purity of heart and sight, and the moral teaching provides details regarding obligations to humans. In the light of all this, if the residents of a country are truly Muslims, the thought of stealing should be unimaginable. However, it is sad that in the real situation, such a scenario is difficult to present. From an economic viewpoint, if an Islamic economic system is in force, then what chances are there for stealing to flourish? Islam is the one religion that simultaneously allows the freedom to earn wealth, without discouraging healthy competition, and also adopts such means that grossly reduce the chances of wealth accumulating in a few hands 53. When we bear in mind such a social and economic background, it becomes clear that effective prohibitive measures have been imposed on the causes of stealing. In spite of this, if someone steals, he is guilty of two offences. Firstly, he does not carry out responsibility of working to support the economy of the country, and to evade that, he chooses stealing. Secondly, he deprives others in the society of their rightful possessions, thus causing economic anxiety and anguish. In these circumstances, there can be no better punishment than the one imposed by Islam, that is, the punishment of cutting the hand.
48 Mawdudi: Islamic Lawp.21, See also Abdallah Mohamed (N.D), Defend the case of Islam, Islamic articles available at http://www.jannah.org/morearticles/4.html 49 Asad: Message of the Qur'an p.149 50 "The Son of Adam has no better right than that he would have a house wherein he may live, a piece of clothing whereby he may hide his nakedness and a piece of bread and some water" [Tirmizi] 51 Prof M. Qutb pp. 131-2. Umar is described in the Hadith as the "most stern in the execution of the orders of Allah" (ashaddufee amrillah) 52 Asad: Message ofthe Qur'an p.150, Iqbal p.70, M. Qutb pp. 131-2 53 Dr. Iftikar Ayaz O.B.E (2009), The philosophy of punishments in Islam, available at review of religions.org/87

10

One might ask about the justification of amputating a thief s hand, arguing that it leads to augmentation in damage and oppressing the thief by punishing him excessively, and that he can be deterred by a lesser punishment. The answer encompasses various aspects, as follows: The first aspect: A general answer is mentioned by Ibn al-Qayyim54 as a justification of legitimizing all ud d: The One Who legitimized these punishments and arranged them in conformity with their causes qualitatively and quantitatively is but the Knower of the unseen and the witnessed, the Most Just of all judges, the Most Acquainted of all Knowers, Whose Knowledge Covers everything, the Knower of all small and great interests, whether known by human beings or not. These considerations are governed by praised wisdoms and higher objectives the same as the considerations applied to His creatures, and both types of considerations here are of the same source, that is, His ultimate knowledge and wisdom, and His putting everything in its appropriate place. His perfection covers all that He created, as the Statement of All h reads, [ 88 : ] . ..

the Work of All h, Who perfected all things [an-Naml, 88].

As He ultimately perfected His creature, His legislation is worthier to be perfected. Glorified be All h! How ignorant and oppressing Man is! If a person objects to another who is specialized in a certain industry about which the former does not know well, and tries to ask about the elements and quantities of this industry and how everything in it is handled in its appropriate way, surely the specialized person would ridicule the asking one and mock his little knowledge, even though this specialized person is not protected against incapacity, insufficiency, and ignorance. In spite of this, the asking person would have to acknowledge the knowledge and wisdom of the specialized one. Is it not worthier to acknowledge the knowledge and wisdom of the Most Just of judges, the Most Acquainted of knowers, and the One Who perfected everything in its appropriate way? The Second Aspect: All h legitimized the add of theft, which is the most appropriate one as it is applied to the organ used for harming people. The organ that violates the Shariah objective of protecting the property. This punishment here is more appropriate and deterrent than flogging, and at the same time it does not reach murder. Because his harm and aggression transcends that of the thief, he must undergo the amputation of his hand as a means of preventing his aggression, the corruption of his hand. The execution of the add here wards off the harm and aggression of the perpetrator, and alleviates his infliction, by leaving for him one hand.

54

See Abdelwahab Bouhdiba, Mu ammad Ma r f Daw l b (N.D), The different aspects of Islamic culture: the individual and society in Islam, p. 111

11

Moreover, this punishment has a very powerful effective force for the prevention of stealing. The Islamic states where this punishment is in force show the crime of stealing is rare. Therefore, if the Islamic social and economic system is established in a country, the causes of stealing are markedly reduced. Moreover, the punishment of stealing is so wrathful that even if after months a thief is caught and punished, people far and wide receive the warning. As a sure and certain result of that, practically, the curse of stealing, if not totally wiped out, becomes very rare. 55 Some people react in the name of human rights react very strongly to this punishment. The fact is that such a reaction cannot be justified. It is a mere expression of sentiment that is the result of a wrong notion of mercy. In an Islamic state where such a law is enforced, even if twenty people are caught stealing during one year and their hands cut, the question arises, do these few deserve more mercy than those innocent thousands who suffer enormously at the hands of robbers and burglars every day?56 We have to bear in mind that All h legitimized amputation, but prevented its execution unless certain stipulations are met in order to confine its execution to the worst cases of aggression. By looking at the socio-economic and legal contexts of the amputation of hand for theft, the 'deterrent' nature of the punishment for theft could be better appreciated.57 In one sense, it could be said that the amputation of hand is the 'maximum' penalty for theft58 because all the definitional elements of the crime has to be satisfied and even when it is carried out it is done humanely and "amputation in an actual Islamic state with an Islamic penal system is (extremely) rare"59 in practice. Professor Muhammad Qutb writes that "punishment for theft has been executed only six times throughout a period of 400 years is a clear evidence that such punishment was primarily meant to prevent crime".60 As we do not have a proper Islamic state, the practices in some Muslim countries should be looked at with skepticism and put under strict legal scrutiny as "the cutting off of a hand for theft is applicable only within the context of an already existing, fully functioning 'social security' scheme"61 So, Why do we cut off the hand of a thief when the amount stolen is quarter of a dinar while the value of a hand would run into the hundreds of Dinars? The answer is that this is one of the biggest benefits and the main wisdom of the shar `ah; All h has protected both, wealth and the hand. The hand should be cut over a quarter of a dinar in

Dr. Iftikar Ayaz O.B.E (2009), The philosophy of punishments in Islam, available at review of religions.org/87 Ibid 57 The punishment for theft in Islam is much more practical and lenient than many other legal systems. For example, under Jewish Law the punishment for theft was death [Exodus 22:2/ Deuteremony 24: 7] and thieves used to be crucified at the time of Jesus [Matthew 27:38]. Even in English Law, "theft of property worth more than a shilling was classified as 'felony' and, like every other felony, was punished with death, upto as late as 1861" [Zajrulla Khan p. 75]. See also Mawdudi: Islamic Lawp.21, See also Abdallah Mohamed (N.D), Defend the case of Islam, Islamic articles 58 Iqbal Siddiqi pp.27-8/ AH. 59 Haroon p.4l 60 Islam: The Misunderstood Religion p.134 61 Asad: Message of the Qur'an p.150
56

55

12

order to protect wealth, and the hand should be compensated by 500 Dinars, in order to protect it from being cut.62 The wisdom of legislation cutting off a hand in the quarter of a dinar (is because of protection of the mal) and making its Diyah five hundred dinars (is because to protect itself) 63. This is the essence of ruling from Allah who knows best what is good to mankind. It appears that one who steals a fourth of a misqal of gold is worse than the one who cuts off the hand of an innocent person. Such is the value of trust in Islam. The objectives of Shariah are the protection of religion, life, reason, progeny and property. Each of these is protected in Islam with all the preventive measures as well punishment on those who transgress. In the case of theft, the reason of theft prohibition is to protect the property of muslims and to prevent illegal and any aggressive means of taking over other people s propery. Allah says in the Quran: } 29 {

O you who believe, Eat not up your property among yourselves unjustly except it be a trade amongst you, by mutual consent. And do not kill yourselves (nor kill one another). Surely, Allh is Most Merciful to you (An-Nisa: 29).

Islam has prohibited all means of earning wealth illegally and unethically including riba, gharar, gambling, trading in alcohols, pork, drugs, etc. On the other hand, Islam has encouraged for Muslims to earn on any halal manner. The prophet encourages muslims to go for work and earn rather than passively not going for work.
: The Prophet said: A human never eat a food better than that by his own hands work, and that Prophet David was eating from his work.64

Today we hear all the time Labour Unions and organisations calling for rights of working class including the basic principles of the communism that argued on fighting for labour rights and wellbeing. Islam has long set rules and principles to care every individual, every group of society and all aspects of life. Look the beauty of the narration from the Prophet Alaihi salatu wa salam. Who else could have cared labour more that of Islam? He says: .
62

See Dr. Yussuf Abdallah Shubily, Explanation of Sahih Muslim, Hudud available at http://audio.islamweb.net/audio/index.php?page=FullContent&audioid=213765 63 Dr. Noor Abdi Gudle, MIBF 6083, Note for Maqasid Al-Shariah, Protection of property,
64

Al-Bukhari: Kitabu Buyyuu (1966)

13

The Prophet said: Give the employee the right before his sweat dries65.

This is actually an encouragement for earning in halal means rather than either begging, sitting idle, working in illegal activities or even transgressing such as stealing other people s property. The second point is to protect life by imposing a compensation (Diyah) of 500 Dinars on the person who illegally cuts a hand of another. Actually the point is: if someone cuts off a hand the punishment is his hand to be cut off as well. Allah says 45: { .}

"Life for life, eye for eye, nose or nose, ear for ear, tooth for tooth, and wounds equal for equal."

However, Islam also gives an option to the victim or his relatives to receive Diyah on their choice if they choose so alternatively to the punishment. This is another beauty of Islam to protect life. Some Disbelievers (Zanadiqah) has said the following poetic verses about what has been discussed above:66

A hand equals(in compensatoin) five hundred dinars Why should it be cut for taking a quarter of a dinar Contradiction, we should have no comment on But to seek refuge in our Lord from the humiliation A jurist has then answered to him by saying: it was expensive when it was honest; but when it betrayed, it became inexpensive. A poet said:67

The protection of it made it expensive and it became cheap When it betrayed, this is the wisdom of the Creator.

65
66

Ibn Majah 2/817, See also Sahih Jami 1493

The Verses has been said by the famous poet Abu Ala Al Ma ri. See Yaqutu Nafees, Hadd Sirqah, 3/230 67 Ibid.

14

Conclusion
Islam is a religion of peace and prevents any thing that could harm peace. That is what the Arabic term of Muslim shows from the root word of salaam which is peace. Theft is one way of violating peace. If not stopped it is an act that would destabilise society and it is a widespread crime all over the world that seems to be increasing day by day. Islam provides the best prescription to cure this disease from the society. Cutting off the hand of the thief is a deserved punishment as the part of body that violates the very preaching of Islam is cut. I have to stress that Islam never prescribes punishment haphazardly nor does it execute these without due consideration and theft Punishment has very strict 'definitional elements' which makes its application very rare in practice and yet it has been instrumental in the past and is an effective preventive tool in greatly reducing the problem of stealing which is seriously affecting our societies today. Therefore, the allegations such as those of Zanadiqah or even some westerners today about the Islamic law are totally 'baseless' and reflects those people s narrow mindedness and blind vision to the reality of Islam.

15

REFERENCES

Mohammedanism (Oxford 1961) quoted in Islamic Studies: Autumn 1987 Mufti Kefayatullah (N.D): Ta'leemul Islam. See Hughes' "Dictionary of Islam" pp.285-6 Shah Waliullah (N.D): Hujjatullahil Baalighah Vol.1 p.451- quoted by p.363 Roscoe Pound (N.D): Interpretation of Legal History p.l- quoted by Tahirul Qadri p.5 & Gilani p.364 Ahmad Hasan (N.D): Sunan Abu Dawud Vol.3 p.1212 n.3793 Encyclopaedia of Religion and Ethics V 01.16 p.809 Mohammed Bin Ahmed Shadiri (N.D), Yaqutu Nafees, Hadd Sirqah, 3/216 Wahbah Zuhaili (N.D), Fiqh Al-Islami Wa adilatuh, Hadd Sirqah, Chapter 3, p 92 Shamselden A. Salh (2006), THE LAW OF THEFT: A COMPARATIVE AND ANALYTICAL STUDY BETWEEN COMMON LAW, MALAYSIAN LAW AND ISLAMIC LAW, Unpublished Masters degree, International Islamic University Malaysia Abdul Qadir Awdah (1996), al-Tashri al-Jinai al-Islami, Vol 2 Beirut, pp514, 518. Al-Jaami li Ahkaam al-Qur aan, 6/159; al-Mulakhkhas al-Fiqhi, 2/442 Al-Bukhari: Al-huduud (6790) Al-Bukhari: Al-huduud (6783), Muslim: Al-huduud (1687) Al-Bukhari: Al-Muqhazi (4304), Muslim: Al-huduud (1688) Tirmizi: Al-Huduud (1448), Nisa i: Qad Yadd (4971), Abu Dawud: Al-Huduud (4391), Ibn Majah: Al-Huduud (2591), Ahmad (3/380), Darami: Al-huduud (2310) Abdelwahab Bouhdiba, Mu ammad Ma r f Daw l b (N.D), The different aspects of Islamic culture: the individual and society in Islam, p. 111 Dr. Noor Abdi Gudle, MIBF 6083, Note for Maqasid Al-Shariah, Protection of property Al-Bukhari: Kitabu Buyyuu (1966) Ibn Majah 2/817, Sahih Jami 1493

16

References from Internet sources:

Abdallah Mohamed (N.D), Defend the case of Islam, Islamic articles available at http://www.jannah.org/morearticles/4.html See Dr. Yussuf Abdallah Shubily, Explanation of Sahih Muslim, Hudud available at http://audio.islamweb.net/audio/index.php?page=FullContent&audioid=213765 Quran Translation available at: http://quran.muslim-web.com E.J. Brill's first encyclopaedia of Islam (1913-1936), Volume 2, By Martijn Houtsma, p 173 availabale at: http://books.google.com/books Muhsin Khan (N.D), Quran English translation available at http://www.guidedways.com Dr. Iftikar Ayaz O.B.E (2009), The philosophy of punishments in Islam, available at: review of religions.org/87

17