The Qur’an and the Hadith in action: the case of Q. 5:38

As mentioned previously, in the classical Sunni narrative of the development of Islamic law, the Prophet Muhammad, through his Sunnah (practice) and Hadith (sayings), was the source of the meaning of the Qur an.

On the other hand, many modern (Muslim and non-Muslim) scholars of Islamic law hold that the Prophet’s Sunnah was only one of many normative sunnahs that existed in early Islam, and that a considerable amount of Hadith (if not all of it) was not in fact uttered by Prophet Muhammad himself. An explanation that some of these scholars provide for the wholesale fabrication of Hadith in early Islam is precisely its usefulness as a hermeneutical tool: Hadith was needed to interpret the Qur’an and settle disagreements about its meaning. This process sought at times to circumvent the ‘literal’ reading of some Quranic rulings or to legitimize legal views that had already existed from early Muslim generations, as has been pointed out earlier. In either case, in its capacity as ‘elucidator’ of the Qur’an, the Hadith came to be, among other things, a major determinant of the meaning of the Quran, a regular modifier of some of its rulings, and a source of knowledge of the abrogated and abrogating verses.

Q. 5:38 (‘As for the thief, male or female, cut off their hands as a punishment for what they have earned’) prescribes cutting off the hands of thieves. A ‘literal’ reading of the word thief in this verse would include in its scope any person who unlawfully takes anything that is not his or her. If taken literally, in this sense, this verse would mean that a person who steals even a penny is punished in the same way as a person who steals a large sum of money. Similarly, a starving person stealing to remain alive would be punished in the same way as an evil person who steals out of mere greed. Readers of this verse may also ponder the case of someone taking something that he does not assume to be the personal property of anyone, while it may be obvious for its owner and for others that it belongs to someone. Theft, similar to all human phenomena, has its grey area, and its demarcations may differ from one culture to another.

In addition to the Quranic ruling on theft, Muslim jurists had other pieces of evidence to use. The verse and these pieces of evidence generated many controversies on various aspects of theft and its Quranic punishment. Suffice it to mention that this subject is discussed in a medieval work of Islamic jurisprudence — al-Mughni of the Hanbali scholar Ibn Qudama al-Maqdisi — in a large number of pages.¹³ In addition to Q. 5:38, Ibn Qudama mentions many Prophetic traditions. In one of these, the Prophet states explicitly that as a punishment prescribed by God, cutting off the hands of thieves cannot be averted and would be applied even to the Prophet’s own daughter if she were to commit theft. The command in the verse (cut off), then, denotes obligation.

But in addition to these textual sources, the bulk of Ibn Qudama’s discussion of theft reports views of early Muslim scholars on various aspects of the crime and its punishment. We have seen that the Qur’an speaks about theft without defining it. Nor is it defined in any Prophetic tradition. It becomes the duty of jurists, then, to define it, which they did elab­orately. Theft is not defined as simply taking something that belongs to another. The item that is taken must be kept in a safe place for its removal and appropriation from that place to be considered theft. Accordingly, and perhaps inspired by the tradition that distinguishes between theft and embezzlement, jurists decided that all forms of misappropriation, malfea­sance, fraudulence, chicanery and other acts that involve taking something that belongs to others do not constitute theft. Even looting, plundering and pick-pocketing were controver­sial, for the money or property taken in these cases is not stealthy removed from a safe place where its owner has kept it, as these jurists understood theft.

Furthermore, we have seen above that the Prophet states that whereas taking fruits from the trees is not theft, taking them from a container is.

In addition to this, jurists insisted that whatever is stolen must be money or something equivalent to it. Stealing a slave, for example, is thus theft, but kidnapping a free man is not (unless it happens that he carry items that exceed the quorum of theft mentioned above, a quarter of a dinar). Here, a full list is given of items that are not considered money or equiv­alent to it. Water, for instance, cannot be stolen, for it is usually something that people share, or perhaps something that people should not refuse to share. A copy of the Qur’an cannot be an item for theft, for the Quran, in one view, should not be put on sale to begin with (and again, it may be something that should not be denied a Muslim). Nor would things pro­hibited in Islam qualify as items that can be stolen; for example, wine, pigs or even musical instruments (the prohibition of which is a subject of controversy in modern Islam, of course). The assumption here is that these items have no value in an Islamic society.

Ibn Qudama mentions views on other aspects of theft.Just as theft does not apply to certain items, it similarly does not apply to certain individuals. These individuals include parents who take their children’s property. This is based on a Prophetic tradition in which the Prophet tells someone: ‘You and what you own belong to your father.’ This rule was inevita­bly extended to mothers. Added to the list of persons who cannot steal are sons, spouses and, in some views, any person that a man cannot marry (which would include relatives by blood or marriage). The logic of this last category is that these relatives may believe that they are entitled to take the property of their relatives.¹⁶ The list also includes slaves, most likely on the assumption that a slave may not know what he is allowed to take and what not, or that no part of his master’s house could constitute a hirz for someone actually living in the house. Finally, the list includes any Muslim stealing from the public treasury, for he may believe himself entitled to take the money given that he does have a share in the treasury. And of course, a person who is starving cannot be punished for theft if he takes something to feed himself.

Among the other conditions that must be met so that a removal of something can be consid­ered theft is that the person whose property is stolen has to claim it. The implication here is that person may deny his ownership of the property or refrain from asking for it; in either case the thief is spared. Furthermore, if the owner of the property testifies that the stolen item actually belonged to the person believed to have unlawfully taken it, that person is again absolved.¹⁷

Now proceeding to the actual punishment, Ibn Qudama mentions that the hand of a thief is cut off only when two reliable witnesses testify against him or if he confesses. In the former case, the witnesses have to describe in clear detail the item allegedly stolen and the safe place where it was kept.

Finally, the actual cutting of the hand must be implemented in the least painful way. Cut­ting should not be implemented in extreme weather, warm or cold. The punishment cannot be inflicted upon a sick person or on a pregnant woman, for this would cause harm to both herself and her innocent baby.²² And if a person steals multiple times and then gets caught, only one of his hands are to be cut off,²³ and if he happens to have one hand (the other be­ing already cut or paralysed), he is absolved from the punishment.²⁴ Some jurists have also expressed preference to cut off the left rather than the right hand, the latter being the more useful for most people.²⁵ And if a thief steals, has one of his hands cut, and steals again, his leg rather than his other hand is to be cut. Despite a tradition where the Prophet is reported to have said that after cutting one hand, a leg is cut followed by the other hand followed by the other leg (and then execution), Ali b. Abi Talib is reported to have said that cutting the other hand is tantamount to murdering the thief, for without either hand he would not be able to eat or wash himself.²⁶

This overview of the aspects of theft that Muslim jurists discussed may give readers an impression that they were motivated by a desire to avert the rather severe and irrevocable Quranic punishment for theft. This, of course, remains a strong possibility that can be evinced by their insistence that the cutting cannot be an occasion to further torture the thief, or that the thief may not have his other hand cut if one of his hands is already cut or paralysed, or, more significantly, that the thief should be encouraged to either not confess or withdraw his confession. What these jurists seem to be doing is restricting the definition and conditions of theft while broadening the categories of people who cannot be treated as thieves even when they appear to be stealing. Additionally, these jurists seem to be advo­cating the abstention from inflicting the punishment in the existence of any doubt. To fully understand this point, there is another tradition that is present everywhere in Ibn Qudama’s discussion of theft although in this particular context he does not attribute it to its presumed origin, the Prophet Muhammad.

In a tradition that is crucial in all discussions over Qur ’anic punishments (hudud), the Prophet is reported to have said that these punishments should be averted by doubt (shubuhat). The word that the Prophet uses for doubt is in the plural, suggesting that it includes various forms of doubt. Applying this rule to our subject, jurists insisted that to inflict the Qur’anic punish­ment for theft, it must be proven beyond doubt that the act of the person accused of theft does indeed fall within the category oftheft, which, as we have seen, is defined in a way that excludes many acts that we would otherwise regard be regarded as [a kind of] theft. Furthermore, it must be confirmed that the item stolen had reached the required value at the time of the act, that it was absolutely clear that the item belonged to someone (which requires that it be kept in a safe place, or hirz), that it is something ofvalue in the person’s social context, and that the owner of the item confirms that it has been stolen from him. Furthermore, and perhaps more significantly, the person accused of theft cannot be one who may believe himself entitled to take that which he is accused of having stolen. If a jurist, now acting as judge, has any doubt regarding any of these points, he must, according to this generous reading of the tradition, rule out the punishment prescribed in the Qur’an.

This overview of the juristic discussions over various aspects of theft is, admittedly, se­lective. There is no claim here that Muslim jurists agreed that pick-pocketing, for example, is not theft, or that taking the property of a blood relative is not theft. Muslim jurists dis­agreed on almost all these issues. They also disagreed over some of the Prophetic traditions mentioned in the context of this subject for the reasons mentioned earlier; particularly, their disagreement over the authenticity of some of these traditions and on whether they should be used to qualify the Quranic verse, which they accept as the primary source of the ruling of Islamic law on theft. Jurists who disagreed with any of the views presented above appeal pri­marily to the generality of the Quranic verse and reject as un-authentic Prophetic traditions used by other jurists to qualify certain aspects of theft (such as its definition) or to make its conditions too stringent to be easily applied. Even when they accepted the same traditions, there was still room for disagreement over their meaning, relevance and applications. For example, whereas scholars accepting the tradition about embezzlement and treachery had to exclude these from the category of theft, they did not need to exclude other acts based on analogy with the acts that the Prophet has mentioned. And even when all jurists have ac­cepted the ‘Avert the hudud on the basis of doubt’ tradition, what constitutes doubt remained a subject open for discussion. Although jurists were clearly following and seeking inspiration from the textual sources at their disposal, their treatment of this subject demonstrates that the process of using these sources was quite complex, to say the least.

A last point to make is this: to understand the Qur’an and the Hadith, Muslim scholars knew that they needed to authenticate their understanding of the Arabic language by ex­amining how the Arabs used their language at the time of the revelation of the Qur’an. We see this clearly in al-Shafi‘i’s Risala, a work on legal theory that is generally considered, by medieval Sunni scholars and some modern scholars, the first of its kind. But this was not as straightforward as it may sound, not only because the sources available for these jurists on the use of Arabic at the time of revelation were limited (primarily pre-Islamic poetry), but also because they knew that there were no strict or standard linguistic conventions or lex­ical definitions. The Hadith, as an exegetical tool, was thus crucial to explaining Qur’anic statements, implying that these statements were not completely clear even to the immediate audience of the Qur’an. Accordingly, failing to find evidence for a clear definition of theft at the time of the Qur ’an, these jurists realized that they had to define it in ways that contravene Weiss’s view on the ability of language to convey meaning without interpretation. It is true that language here determined the kind of offence that we are dealing with, but it did that in terms that jurists found, or liked to find, very unspecific. When people heard the word theft in the verse they did realize that they were dealing with a specific kind of criminal offence. It is not anything that we would call murder, rape, adultery or blasphemy, for example. However, they were also demonstrably aware that certain acts (such as embezzlement, usur­pation or pick-pocketing) may not fully correspond to the ‘ideal type’ of theft, whatever that may be. Here, interpretation is indispensable, and this interpretation cannot occur within the gamut of the text itself, for there is no such gamut to begin with absent evidence for a water-tight definition of theft. Here, legal reasoning, cultural norms, social considerations and notions of justice all contribute to the process of assigning meaning to the texts. In this, the Qur’an and the Hadith are simply similar to all other legal texts.