Sariqa: theft in fiqh

The hadd of theft (sariqa) does not strike every theft: the encyclopedia records a list of conditions, and the absence of a single one diverts the case to the discretionary sanction.

Conditions relating to the stolen property

• Property. What has no legal value in Islam does not trigger amputation: stealing wine, pork, an unslaughtered animal, a musical instrument or an idol gives no rise to it, by agreement of the four schools, since none of these is property for us. Hanafis and Malikis nevertheless oblige the thief to refund its value to the dhimmi; Shafi'is and Hanbalis do not.
• A threshold (nisab). Malikis and Hanbalis set the minimum at a quarter of a dinar or three dirhams, based on the saying: « The hand of the thief is not cut except for a quarter of a dinar and more » (Muslim 1684); Shafi'is retain a quarter of a dinar of pure gold, any other property being valued against gold. Hanafis require ten dirhams or their equivalent.
• A protected place (hirz). The property must be taken from outside the place where people, by custom, keep their goods: house, shop, the back of a mount, a ship.

The theft must be committed secretly

No amputation against the openly plundering robber; the one who plunders a prey in broad daylight is not one of us. And he said: no amputation against the treacherous one.Abu Dawud 4391-4393 ; an-Nasa'i 4973-4974 ; Ibn Hibban 4457

Snatching, open plunder, breach of trust and usurpation do not constitute the sariqa of the hadd. Ibn al-Mundhir, Ibn Abd al-Barr and Ibn Rushd record consensus on this point, the only exception being Iyas ibn Mu'awiya. Ibn al-Qayyim gives the reason: the thief breaks locks and digs through walls, and the owner cannot protect himself any further; against the plunderer and the one who breaches trust, by contrast, one can defend oneself or turn to the judge.

Obstacles relating to the persons

The four schools agree that the ascendant is not amputated for a theft from his descendant's property, nor the descendant from his ascendant's. Spouses divide the schools. Whoever holds a right over the stolen property (a partner, a creditor) escapes amputation among Hanafis, Shafi'is (the most apparent view) and Hanbalis; Malikis only apply it if he took, beyond his share, a full threshold. Flowing water and common pasture do not give rise to amputation; on salt, the majority exempts it and the Malikis include it.

How the penalty is carried out

The scholars agree that the right hand is cut at the wrist for a first qualifying theft, then, in case of repetition, the left foot. The act is completed by cauterizing the wound, and execution is delayed in case of extreme cold or heat. If several people cooperate in a theft and each one's share reaches the threshold, all are subject to it, unanimously.

Practical note

The list above shows how many real thefts escape the hadd and fall under ta'zir; the encyclopedia devotes entire developments to them.