When was the first penalty of cutting off a hand for theft was given?

The Details of the Question

- Al-Maida 38: Hayrettin Karaman wrote in an article that the penalty of cutting off a hand existed in Arabs of Jahiliyya and that Allah continued it. 
- I got confused on behalf of all humanity. Why did Allah transfer something like that from Arabs of Jahiliyya?
- If it had not existed in them, would Allah not have continued it? (devilish thought)
- Did the
penalty of cutting of a hand for theft exist in various previous states or the shari’ahs of prophets?

The Answer

Dear Brother / Sister,

Islam introduced the belief of tawhid (oneness) and had an attitude against polytheism; it rejected anything that was contrary to the religion and abolished all bad habits that were the products of that faith and that did not fit human honor.

Islam struggled against the spirit of Jahiliyya with its legal and ethical aspects; Islam established a new system of life in which deeds based on moderation and knowledge dominate by ending Jahiliyya’s debauched, immoral and cruel acts and eliminating all of the manifestations of the Era of Jahiliyya.

In that case, if there is a practice that Allah continues, this decree is Allah’s order even if it belongs to the Era of Jahiliyya. This practice continued not because it originated from Jahiliyya but because Allah’s decree and consent necessitated it.

Thus, even if the penalty of cutting off a hand of the thief is a practice of the Era of Jahiliyya, when Allah gives that decree, it is no longer a practice of Jahiliyya; it becomes Allah’s order and decree.

Theft and Penalty for Theft in the Era of Jahiliyya

In the community of Hejaz-Arabs before Islam, theft was a sin and crime but it cannot be said that this crime was interrogated and punished regularly since there was no central, political authority.

For instance, nomadic Arabs regarded stealing something belonging to the members of their own tribe, friendly tribes, temples and the public as a crime but they regarded stealing things – they were generally camels and food – from other tribes as booty and they regarded such deeds as acts representing courage and skill.  

On the other hand, the social position of the thief and the power of his tribe caused important differences in punishments.

The resources mention that theft was so common among Arabs of Jahiliyya that it formed one of the themes of Arab literature, which was the mirror of social life. A genre of literature that consisted of various poems, proverbs and stories about famous thieves and incidents of theft emerged.

It is known that they started to prevent theft through various sanctions like imprisonment, cutting off a hand, excluding a person from the protection of the tribe and beating and that a hand of the thief was cut off in very few incidents of theft but there are narrations that this practice did not have a long history and the the first person to impose the penalty of cutting of a hand for theft was Abdulmuttalib or Walid b. Mughira. (see  TDV İslam Ansiklopedisi, Hırsızlık item)

* * *

Note: The article written by Hayrettin Karaman regarding the issue is as follows:

Theft for Punishment

Although theft is defined in various forms, it is condemned, prohibited and punished in almost all religions, legal and ethical systems

The instruction "Thou shalt not steal" is included among the famous "ten commandments" of the Old Testament

It is known that theft was regarded as a crime in Arabia before Islam, that the hands of those who committed that crime were cut off as a penalty and that the first decree of cutting off the hand was given by Walid b. Mughira.

When Islam emerged, it did not abolish all of the systems, customs and practices of the Era of Jahiliyya; it continued some of them without changing them; it changed some of them and abolished the rest since they were contrary to Islam’s principles of tawhid (oneness) and ethics. Theft regarded as a crime and the penalty applied for that crime are among the practices that Islam took from Jahiliyya and continued.

The following is stated in the verse about the crime of theft and its penalty:

"As to the thief, Male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in power. But if the thief repents after his crime, and amends his conduct, Allah turneth to him in forgiveness; for Allah is Oft-forgiving, Most Merciful."(al-Maida, 5/38-39)

There is no doubt that the penalty of cutting off a hand is a very severe penalty. The crime for which this severe penalty is applied needs to be as severe; there has to be a balance between crime and punishment. That it is mentioned that Allah is "hakim (wise)" at the end of the verse supports this thought of balance. For, wisdom includes the meaning of "doing everything in a proper, regular and balanced way".

Socio-economic structure and state are among the factors that determine the severity and lightness of a crime.

Acting upon this, some modernistic tafsir scholars state that the vital relationship between things and their owners was more important, that stealing was a severe crime and that the penalty given then was in balance with the crime; they state that the relationship between a person’s possessions and his life is not so important today and they put forward that extenuating the penalty will not be contrary to divine purpose. 

This brave interpretation definitely has some aspects that need to be discussed and searched.

The decree adopted unanimously by the classical fiqh scholars is that the penalty of cutting off a hand will be applied today – when the conditions are present.

It is not necessary to enter into details of the conditions of cutting off a hand here but there is one condition that needs to be mentioned; otherwise, the issue will not be understood well: this condition is related to the cause that leads a person to theft

There is an incident and practice that exist in all relevant resources and that happened during the caliphate of Hz. Umar. The slaves who were left hungry by their master were caught stealing food and were taken to the caliph; when the caliph found out that they stole food due to hunger, he did not punish the slaves. He summoned their owner and told him that if he left the slaves hungry again, he would punish him.

During a year of famine, people had to steal to due to hunger; therefore, Hz. Umar suspended this penalty until famine ended.

These practices, which happened in the presence of the Companions and which were not opposed by anybody, lead us to a general rule:

One of the conditions of applying the penalty for theft is nobody being hungry and lacking basic needs, and forming a high level of social welfare that is possible for everybody.

However, if some people steal the possessions of others that they earned legitimately with the intention of obtaining wealth without working and sweating though the "legitimate cause" that leads man to theft has been eliminated, they will definitely be punished

How will "repenting after his crime, amending one’s conduct and improving oneself" mentioned in the verse affect penalty?

The answer given to that question by the classical fiqh is as follows:

Allah's accepting the repentance means not punishing that person in the hereafter; repentance will not abolish the penalty to be given in the world.

According to Ata, one of the mujtahids of the first period, if a person repents before he is caught, regrets and surrenders, returns what he has stolen and pays for the damages, the penalty of cutting off a hand is annulled.

Fiqh scholars insist on this interpretation based on the anxiety that the principle of protecting wealth, legal stability, and security of wealth and life cannot be protected if repentance is misused.

In our opinion, the clear expression of the verse, by doing necessary research and trials, shows that this penalty should not be applied on people who are sincere in their repentance and who are understood to have improved themselveswhether before or after they are caught. That Allah forgives a thief based on those conditions is an evidence that His slaves also need to forgive.

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