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Shariah Constraints in the Punishment of a Thief | eShaykh.com

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Shariah Constraints in the Punishment of a Thief | eShaykh.com.

`Alaykum as-Salam, may Allah bless you and yours always.

It is a well-established principle in the Law already from the time of the Companions (Allah be well-pleased with them) that the Shari`a demands we always try to find excuses in order not to enforce the criminal penalty (hadd). This principle is based on explicit sayings to that effect by several of the foremost Ahl al-Fatwa among the Companions: Sayyidina `Umar and Ibn Mas`ud in Sahih al-Bukhari and Ibn Hazm’s Fisal (“Avert the penalties by way of inconclusive evidence as much as you can”; Sayyida `Aisha in al-Tirmidhi (“Avert the penalties as much as you can, and if any leeway is found then release the detainee. Truly it is preferable for the ruler to pardon mistakenly than to punish mistakenly”); and Mu`adh b. Jabal and `Uqba b. `Amir as stated by Ibn Hajar in Talkhis al-Habir. Among the most glaring excuses forming ”inconclusive evidence” is the culprit’s ignorance of the penalty, which can be cited to avert the penalty in any society past or present, consumerist or otherwise.

It is also a well-established ruling of Sayyidina `Umar (Allah be well-pleased with him) that “we do not cut the thief’s hand over a date-bunch (la naqta` fi `idhq) nor in a lean year (wa-la fi `aam sana)” i.e. in times of famine or drought as narrated by `Abd al-Razzaq in his Musannaf (10:242-243) in the same-titled chapter and Ibn Abi Shayba in
his Musannaf (Bombay Salafiyya ed. 10:28 Hudud).

Imam Malik narrates in the Muwatta’ that Sayyiduna `Umar also cancelled thehadd of theft against slaves who had stolen a camel from someone’s stable when he took one look at the thieves and said to their employer: ”By Allah I believe you were starving them!” Then he imposed on the employer a fine of 800 dirhams, double the best amount of the camel’s
price (`Abd al-Baqi ed. 2:748 Kitab al-Aqdiya, Bab al-qada’ fil-dawari wal-harisa; see also Muwatta’, Kitab al-Sariqa, Bab ma la qat`a fih).

The reason is that (i) hunger is a form of coercion and the presence of the latter makes penalty impermissible (Imam Ahmad in Ibn Qudama’s Mughni, Turki ed. 12:462-463 Hudud), and (ii) Allah Most High said {and do not kill yourselves} (4:29) and a famished thief is only trying to save his own life (Ibn Hazm, Muhalla 11:343).

Hajj Gibril Haddad

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