Maharaba: brigandage and public insecurity

Maharaba (hiraba) designates public banditry: appearing armed to kill, seize property or terrify people, beyond the reach of any help. Shafi'is define it as openly appearing, relying on one's strength, in order to take property, kill or frighten; Hanbalis include those who assault people with a weapon, even a stick or stones, in the open country, inside a building or at sea, and despoil them by force.

A four-degree penalty

The basis is al-Ma'ida 33: execution, crucifixion, cross-amputation of the right hand and left foot, or banishment. The majority of jurists (Abu Yusuf and Muhammad among the Hanafis, Shafi'is, Hanbalis) read in the verse a correspondence between crime and penalty, not a choice left to the judge:

• murder and seizure of property: execution and crucifixion, even if the victim's heirs pardon, since it is a right of Allah;
• murder alone: execution without crucifixion;
• seizure reaching the threshold without murder: amputation of the right hand and the left foot;
• terrorism without murder or seizure: banishment among Hanbalis, imprisonment until repentance among Hanafis, ta'zir at the judge's discretion among Shafi'is.

The accomplice and the number

For Hanafis, Malikis and Hanbalis, the helper (rid') who backs the brigand without killing or taking undergoes the same penalty as the perpetrator, since hiraba rests on armed solidarity; al-Shafi'i imposes only ta'zir on the helper. No school requires a specific number: one man suffices, if he has a strength that overpowers people.

The proof

The hadd is established by two upright witnesses; Malikis also establish it by the brigand's notoriety, attested by two men who know him. The victims of the assault cannot testify for themselves according to Shafi'is and Hanbalis, since they become parties to the case; Malikis accept their testimony.

Repentance before arrest

All the scholars agree that the rights of Allah fall away through repentance prior to the authorities gaining power over the brigand, based on al-Ma'ida 34: « except those who repent before you gain power over them ». Repentance includes returning the property taken. The rights of human beings remain: qisas for the blood, indemnities and restitutions, unless the entitled persons pardon. After arrest, repentance no longer removes any penalty. On returning lost goods: Shafi'is and Hanbalis require compensation, Malikis guarantee reimbursement absolutely, Hanafis refuse it if the object perished.

Practical note

Contemporary applications of this chapter depend on legislation; this page restores the textual foundation shaped by the jurists.