Islam is not just a religion but a way of life. Likewise, Shariah, which is the Islamic Law, also encompasses each and every sphere of an individual’s life. Shariah Law can be used to solve every problem under the sun, whether it is private, such as a personal hygiene, marriage etc or public such as international disputes, crime, conflicts or war related.
Islam aims to create an egalitarian society by bridging the gap between rich and the poor. Islam is based on the principles of justice, tolerance, peace; equality and fraternity. The concept of charity (Zakaath) in Islam is also meant to bring about equality in the society. Prophet Mohammed (saw) said; ‘The Most Merciful (i.e. Almighty Allah) shows mercy towards those who show mercy towards others. Show mercy towards those on the earth so that the Creator will show mercy towards you’.
The Islamic Law is also based on the high ideals of mercy and compassion. The primary goal of the Islamic Law is mercy or the benefit of the society.
Let us first understand the objectives of Shari`ah
In principle the Shari`ah law aims at removing the hardships from people and providing them with solutions to their problems.
Shari`ah in general encourages individuals and the community to be pious and close to Allah. Societies should be in harmony and secure, with a sense of unity and trust where all help each other, enjoin what is good, and avoid what is evil and displeases Allah.
First and foremost among the objectives of Shari`ah is the protection of religion, as religion is the essence and spirit of life.
Shari`ah also aims at protecting life. One cannot go and kill others nor harm them in any way. The blood of others is sacred, and one of the most serious sins in Islam is to kill innocent people.
Shari`ah is also concerned with protecting the mind. Muslims should be sober at all times and should not intake any intoxicants, whether alcohol or drugs. Intoxicants are very harmful to societies and bring much more destruction than benefit – if there is any benefit at all.
Property in Shari`ah is also something that is highly protected. Naturally, to feel a sense of security is to feel that the fruit of one’s labor is protected and not subject to theft or molestation.
The Criticism of Shariah for Theft Law
The critics of the Shariah Law try to show that the Islamic Law is cruel and harsh. The law on robbery, i.e amputation of tha hands of the thief has been much criticised as being too stringent. Some people claim that the Islamic law does not pay heed to the motive of the theft. The thief would not have necessarily stolen something out of mischief. He could have stolen out of necessity too. So amputating a man’s hand who is on the brink of poverty and who tries to steal food to satiate his hunger is sheer cruelty and gross injustice. However, the stringent Islamic laws are meant to deter crime in the society. After all who would like to live in a society with a high crime rate?
As far as the criticism of amputating the hands of a thief is concerned the critics very conveniently forget to mention the incident in which a thief was caught stealing during a famine. On Caliph Umar (Ra)’s (Holy Prophet’s (pbuh) companion) command the thief was left scot-free on the grounds that he had stolen in order to protect himself from starvation.
Almighty Allah has shown mercy and forgiveness towards those who repent for their sins. The strict laws are meant only for those criminals who do not repent for their sins. Such compulsive criminals can not only rob innocent people of their wealth but also rob them of their sense of security and peace of mind.
Almighty Allah says:
Cut off (from the wrist joint) the (right) hand of the thief, male or female, as a recompense for that which they committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise.
But whosoever repents after his crime and does righteous good deeds (by obeying Allah), then verily, Allah will pardon him (accept his repentance). Verily, Allah is Oft-Forgiving, Most Merciful.
Psychological effect of Punishment
Let us illustrate the psychological effect of the severity of punishment on people’s behavior. According to Islamic law, the maximum penalty for professional theft is cutting hands. It should be understood that this policy does not mean that for every theft there is a hand to be cut. The judge exercises other forms of penalties such as imprisonments or fines. With the mere existence of the hand-cutting rule, however, theft in Muslim societies never grew to the level of proficiency and organized crime. The effect of severity of hand cutting as a punishment for theft, and the shameful impact on someone with his hand cut has almost completely eliminated this social disease in the Muslim societies.
Similarly, the penalty for a murder in the Islamic Law is death (Capital Punishment). The wisdom in the severity of penalty is saving lives. The Qur’an states:
“And there is (a saving of) life for you in al-Qisas, the law of equal penalty (killer to be equally killed); O you men of understanding, that you may restrain yourselves.” Qur’an, 2:180.
Since people are afraid to die or be executed, it would be enough deterrent for a person to learn that if he or she has slain a person, they will be disdained to death. Thus, in setting this equal punishment, many lives are saved, and sorrow and sadness for missing loved ones is eliminated.
Why is there punishment in the first place?
Punishment is an integral part of justice; that is, praiseworthy behavior is rewarded and ill behavior is punished. Punishment is a controversial issue; however, it should be looked at as part of a bigger whole. It is only part of the picture within the framework of the overall healthiness of a society. Although law is not the main propellant of morality in a society, however it does contribute to it.
Penalties in Islam are more of a functional nature, to regulate and deter. Almighty Allah has laid down a body of mutual rights and obligations that are the true embodiment of justice. He has also laid down certain bounds and limits to be observed and maintained for this very purpose, in order for people to live in peace and harmony. If people do not abide by this set of rules, they not only put themselves in danger, but endanger others. They, therefore, naturally make themselves liable to penalties – not in vengeful retribution, but to regulate the orderly exchanges in their lives in accordance with justice.
If everything in the Shari`ah is set by God, where is human reason?
When God asks us to submit ourselves to Him, this does not imply that there is no role for human reason. On the contrary, human reason has a very significant and fundamental role to play in the Shari`ah. No doubt the Shari`ah is not rational in the sense that its authority does not rest in human reason; but it is rational in the sense that it cannot be meaningfully opposed to reason.
The role of human reason consists of:
1. Understanding and interpreting the divine guidance in new or changed situations
2. Applying the divine guidance to actual situations in human life
3. Framing rules, regulations and bylaws for the implementation of the basic principles and injunctions
The conduct of the Companions of the Prophet (peace and blessings be upon him) and those who came after them; the differences in opinions that emerged in all spheres of the Shari`ah in the time of the Prophet himself, in the period immediately after him, and among successive generations of Muslims, are a witness to the role human reasoning plays in Shari`ah.
Conditions and Evidence for the Penalty
The following are the conditions which must be met in order to establish the penalty of theft:
1. The one who steals is sane
2. He has reached puberty
3. He steals equivalent to the amount (nisab) or more. The Nisab is one Dinar or ten Dirhams (i.e. 4.374 grams of gold). The Messenger of Allah (Allah bless him & give him peace) said:
There is no cutting (of hands) for stealing that is less then ten Dirhams (Ahmad).
Holy Prophet’s (pbuh) wife Aisha (Allah be pleased with her) reports that the hands were not cut in the time of the Messenger of Allah for stealing worthless things (Musannaf Ibn Abi Shaybah).
Respected Aisha (Allah be pleased with her) narrates that: The hand of a thief was not cut off during the lifetime of the Messenger of Allah (Allah bless him & give peace) except for stealing something equal to a shield in value (Sahih al-Bukhari, 6792, & Sahih Muslim, 1685).
A shield was worth one Dinar at that time, as narrated by Prophet’s (pbuh) companion Ibn Abbas (Abu Dawud & Nasa’i).
4. He steals the article from a place that meets the requirements of security and safeguarding. This security is considered when the article is safeguarded by a guard or by it being locked in a place
5. The article is in the ownership of another person
6. There is no confusion in it (as to whether he took it by way of theft or for some other reason)
7. It was stolen secretly
If any of the above conditions are not met, then the penalty of theft will not be established.
Almighty Allah Most High says:
Cut off (from the wrist joint) the (right) hand of the thief, male or female, as a recompense for that which they committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise. (Qur’an – 5:38)
As far as the evidence and testimony is concerned, stealing will be established by self admittance once or by the testimony of two adult males. The witnesses will be asked the details of the incident, as not to make an error.
The Penalty of Theft
The penalty for the one who steals (when the above conditions are met) is that his/her right arm is amputated. If a person steals a second time, his left foot is amputated; if a third time, then he will be imprisoned until he repents, but no further amputation will take place.
A person’s hand is not amputated when he steals less than the equivalent of 4.374 grams of gold, from place that does not meet the requirements of security, something that is useless, something that is in general ownership such as water in the river, sticks from the wood, etc, food that rots very quickly such as milk, meat, fruits, etc, articles that are unlawful due to the possibility that one had an intention of getting rid of it, such as musical instruments.
Welfare State contributes to a Theft free society
Welfare system as part of governance in public and political lives is made essential under Shariah law. Holy Prophet’s (pbuh) companion Omar (May Allah be pleased with him), the second caliph of Islam saw an old man begging on the road. He was appalled and asked why he was begging. This man replied that he was old and could not earn and that he was a Jew. Omar took his hand and led him to the state Treasury and thundered at the treasurer,’ you took his taxes when he was young and able and now that he is old and frail you have left him to beg!’ Omar, the great caliph, ordered that all residents under the state would be entitled to welfare payments and assistance: orphans, the needy, the destitute, women without an income and the elderly. This led to the establishment of the first welfare state (almost 1400 years back) that had welfare of its entire people as one of the key pillars of its foundation.
Eradication of Poverty also contributes to a Theft free society
At least 80% of humanity lives on less than $10 a day. The poorest 40 per cent of the world’s population accounts for five per cent of global income, and the richest 20 per cent accounts for 75%. According to UNICEF, 22,000 children die each day due to poverty. And they “die quietly in some of the poorest villages on earth, far removed from the scrutiny and the conscience of the world. Being meek and weak in life makes these dying multitudes even more invisible in death.” The GDP (Gross Domestic Product) of the 41 Heavily Indebted Poor Countries (567 million people) is less than the wealth of the world’s seven richest people combined. About 1.6 billion people — a quarter of humanity — live without electricity. (Source: www.globalissues.org by Anup Shah)
Islamic Solution: Our Creator Almighty Allah commanded us to give compulsory-charity, which is known as ‘Zakat’ Zakat has to be given by the rich class of the society to the poor. Agricultural productions have 5-10%, and the excess amount from other sources have 2.5% of Zakat, which should be distributed systematically among the poor. This helps in the eradication of poverty and hunger. And when the zakat money is collected from each and every rich individual, then we can collect around thousand billion dollars annually from all over the world. The distribution of this wealth will be enough to eradicate poverty.
Thus, there will be least number of crimes of theft in the society.
So, let us peacefully, seriously and unbiasedly ponder upon the laws given by our Creator Almighty Allah and take steps for implementing them to save Humanity from the crimes of theft.