The Description of Safekeeping

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The Description of Safekeeping

Imam Abu Bakr al-Jassas, may Allah have mercy on him, said: there is no disagreement among the jurists of the great cities that safekeeping is a condition for amputation, and its basis from the Sunnah is as we have described (1).

Ibn Qudamah, may Allah have mercy on him, said: this is the view of most of the people of knowledge, and it is the position of Ata, al-Sha'bi, Abu al-Aswad al-Du'ali, Umar ibn Abd al-Aziz, al-Zuhri, Amr ibn Dinar, al-Thawri, Malik, al-Shafi'i and the adherents of personal opinion; we know of none among the people of knowledge who contradicts them, except a view transmitted from Aishah, al-Hasan and al-Nakha'i that one who gathers the goods without taking them out of the safekeeping is subject to amputation; from al-Hasan a view like that of the majority is also transmitted; and it is transmitted from Dawud that he does not require safekeeping, because the verse contains no detail. These are anomalous views, not established from those from whom they were transmitted.

Ibn al-Mundhir said: there is on this topic no established report nor any statement of the people of knowledge except what we have mentioned: it is therefore like a consensus, and consensus is an authority against whoever contradicts it (2).

The majority of jurists stated that the determining criterion in safekeeping is custom (urf), for it varies with the variation of properties, circumstances and times: a thing may be safely kept at one time and not at another, according to the soundness or corruption of people's affairs and the strength or weakness of the authority. It has no definition in the Law or in language; and what has no definition in the Law or in language is referred, for its definition, to custom and usage, because, since its consideration is established in the Law without

The Ruling on Theft

The people of knowledge unanimously agreed on the prohibition of theft and on the obligation of cutting off the thief's hand when the conditions of theft are met in him. They supported this with the Quran, the Sunnah and consensus.

As for the Quran: the word of Allah, the Most High:

As for the thief and the female thief, cut off their hands as a recompense for what they earned, an exemplary punishment from Allah. Allah is Almighty, All-Wise.

Surah Al-Ma'idah, 38

As for the Sunnah, it is abundant:

Among it is what Abu Hurayrah, may Allah be pleased with him, reported from the Prophet, may the peace and blessings of Allah be upon him:

May Allah curse the thief: he steals an egg and his hand is cut off, he steals a rope and his hand is cut off.

reported by al-Bukhari (6401) and Muslim (1687)

From Ibn Umar, may Allah be pleased with both of them:

The messenger of Allah, may the peace and blessings of Allah be upon him, cut off the hand of a thief who had stolen a shield worth 3 dirhams.

reported by Muslim (1686)

From Aishah, may Allah be pleased with her, the messenger of Allah, may the peace and blessings of Allah be upon him, said:

The thief's hand is not cut off except for a quarter of a dinar or more.

reported by Muslim (1684)

As for consensus: a large number of scholars transmitted the consensus on the obligation of cutting off the thief's hand when the conditions making the penalty of theft due upon him are met.

Imam Ibn Hazm, may Allah have mercy on him, said: amputation for theft is obligatory by the text of the Quran, the text of the Sunnah and the consensus of the community (1).

Imam Ibn Hubayrah, may Allah have mercy on him, said: they agreed on the obligation of amputating the thief and the female thief in general when they combine specific characteristics, among them: the stolen item being of the kind for which amputation applies, the nisab of theft, the thief being of specific characteristics, the theft being of specific characteristics, and the place stolen from being of a specific kind (2).

Imam al-Nawawi, may Allah have mercy on him, said: the Muslims unanimously agreed on amputating the thief in general, though they differed over its branches (3).

Imam Ibn Qudamah, may Allah have mercy on him, said: the Muslims unanimously agreed on the obligation of amputating the thief in general (4).

Imam al-Mawsili, may Allah have mercy on him, said: there is consensus of the community on the obligation of amputation, though they differed over the amount of the nisab (5).

The thief was already amputated in pre-Islamic times, and the first to rule for amputation in pre-Islamic times was al-Walid ibn al-Mughirah; Allah commanded amputation in Islam, and the first thief whose hand he had cut off

First of the Two Means: Confession to Theft

Theft is established by one of 2 means, the first of which is confession to theft:

The people of knowledge agreed that whoever confesses to theft while free, adult and uncoerced: his confession is accepted and the penalty is applied to him, because of what Ibn Majah reported from Thawlabah al-Ansari:

Amr ibn Samurah ibn Habib ibn Abd Shams came to the messenger of Allah, may the peace and blessings of Allah be upon him, and said: "O messenger of Allah, I stole a camel belonging to the Banu so-and-so: purify me." The Prophet, may the peace and blessings of Allah be upon him, sent word to them, and they said: "We have indeed missed a camel of ours." The Prophet, may the peace and blessings of Allah be upon him, then ordered his hand cut off. Thawlabah said: I watched him as his hand fell while he was saying: "Praise be to Allah, who purified me of you; you sought to make my body enter the Fire."

weak hadith: reported by Ibn Majah (2588)

Imam Ibn Hazm, may Allah have mercy on him, said: they agreed that whoever confesses against himself to a theft as we mentioned, in 2 different sittings according to what we set out regarding confession of fornication, and persists in his confession, or brings what he stole: amputation is due upon him as long as he does not retract (2).

Ibn Rushd, may Allah have mercy on him, said: they agreed that theft is established by 2 upright witnesses, and that it is established by the confession of a free person (3).

The jurists differed, however: is it sufficient that he confess once, or are 2 confessions required?

The Hanafis in the madhhab, the Malikis and the Shafi'is held that one time suffices: he is amputated if he confesses, even once, that he stole, because it is a right established by confession, so repetition is not required in it, like the right of a human being (1).

The Hanbalis, as well as Abu Yusuf and Zufar among the Hanafis, held that his confession and acknowledgment of the theft twice are required, because of the hadith of Abu Umayyah al-Makhzumi, may Allah be pleased with him:

A thief was brought to the messenger of Allah, may the peace and blessings of Allah be upon him, and he acknowledged it while no goods were found with him. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "I do not think you stole." He said: "I did", twice or 3 times. The messenger of Allah, may the peace and blessings of Allah be upon him, then said: "Amputate him, then bring him back to me." He was amputated and brought back. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "Say: I seek forgiveness from Allah and repent to Him." He said: "I seek forgiveness from Allah and repent to Him." The messenger of Allah, may the peace and blessings of Allah be upon him, said: "O Allah, accept his repentance."

weak hadith: reported by Abu Dawud (4380), al-Nasa'i (4877), Ibn Majah (2597) and Ahmad (22561)

Had amputation been due at the first instance, he would not have delayed it.

Sa'id reported from Hushaym, Sufyan, Abu Ahwas and Abu Mu'awiyah, from al-A'mash, from Abd al-Rahman ibn al-Qasim, from his father, who said: "I witnessed Ali: a man came to him and confessed to theft, and he turned him away"; in one wording: "he rebuked him"; in another: "he ignored him". And others than these: "he drove him away, then he returned after that and confessed, and Ali said to him: you have testified against yourself twice, and he ordered his hand cut off"; in one wording: "you have confessed against yourself twice" (1); in one wording: "the thief is not amputated until he testifies against himself twice" (2). A report of this kind becomes widely known and is not denounced. Moreover, it involves a destruction within a penalty, so repetition is a condition of it, like the penalty for fornication; and it is one of the 2 proofs of amputation, so repetition is required in it, like testimony. It differs from the right of a human being, for his right is built on tenacity and narrowness, and his retraction from it is not accepted, unlike our case.

It is also required that he mention in his confession the conditions of theft: the nisab, the safekeeping, and his taking it out of it (3).

Imam Ibn Rushd, may Allah have mercy on him, said: they agreed on taking it from him if it is found in kind (1).

Imam Ibn Qudamah, may Allah have mercy on him, said: the people of knowledge do not differ on the obligation of returning the stolen item in kind to its owner if it still exists (2).

If the Stolen Item Perishes with the Thief, Is He Liable for It or Not?

The jurists differed regarding the case where the stolen item perishes with the thief: is liability due from him if he is amputated, or is it not due from him, so that indemnification is not combined with amputation?

The Hanafis held that indemnification and amputation are not combined in a single theft: thus if the stolen item perishes in the thief's hand after amputation or before it, no liability is upon him. The proof for this is the Quran, the Sunnah and reason.

As for the noble Quran: the word of Allah, glorified be He:

As for the thief and the female thief, cut off their hands as a recompense for what they earned.

Surah Al-Ma'idah, 38

Argument from the verse proceeds in 2 ways:

The first: Allah, glorified be He, called amputation a "recompense", and recompense is built on sufficiency; were liability added to it, amputation would not be sufficient and would not be a recompense, and Allah, transcendent and magnified, is above any contravention in His report.

The second: He made amputation the entirety of the recompense, for He, magnified be He, mentioned it and mentioned nothing else; were we to make liability due, amputation would become part of the recompense, which would amount to abrogating the text of the noble Quran.

As for the Sunnah: what is reported from our master Abd al-Rahman ibn Awf, may Allah be pleased with him, from the messenger of Allah, may the peace and blessings of Allah be upon him:

The thief is not charged with indemnification when the penalty is executed upon him.

weak hadith: reported by al-Daraqutni (3446)

Indemnification (ghurm) in language denotes what one is obliged to discharge: this is an explicit text on the question.

As for reason, it comes in 2 ways: one is construction, the other is foundation.

The way of construction: guaranteed things, according to us, are acquired upon payment of the guarantee or upon choosing it, effective from the time of taking; were we to make the thief liable for the value of the stolen item or its like, he would own the stolen item from the time of taking, so it would appear that he was amputated for his own property, which is impermissible.

The way of foundation: liability is due only for taking protected property whose protection is established as a right of the owner; the guaranteed thing must therefore bear this quality to constitute aggression by its equivalent in the indemnification of aggressions. The guaranteed thing, at the moment of theft, has ceased to be protected as a right of the owner, as shown by the obligation of amputation; had it remained protected as a right of the owner, it would not be due. What is established as the right of a servant is established to repel his need, and the thief's need is like the victim's need: the doubt of permissibility thus takes hold, and it prevents the obligation of amputation, while amputation is obligatory: liability is necessarily negated. However, returning the stolen item is required while it subsists, for the obligation of return depends on ownership, not on protection. Do you not see that one who usurps a Muslim's wine is commanded to return it to him, because his ownership of it subsists, while if it perishes in the usurper's hand no liability is upon him, for absence of protection? It does not follow from the fall of the protection established as a servant's right that his ownership of the object ceases: here ownership subsists, so he is commanded to return it, and protection has fallen, so it is not guaranteed against perishing.

Several questions are derived from this principle:

If the thief consumes the stolen item after amputation, he is not liable for it according to the apparent narration of the doctrine; al-Hasan reported from Abu Hanifah, may Allah have mercy on him, that he is liable. The basis of this narration: the stolen item after amputation remains the property of the victim; do you not see that its return to the owner is obligatory? The thief's taking is not a taking that generates liability: the stolen item is in his hand in the position of a trust, and if he consumes it he is liable for it.

The basis of the apparent narration: the protection of the object established as the owner's right has fallen with respect to the thief, out of necessity of making the obligation of amputation possible; it does not return except through restitution to the owner; before that it is not protected, so it is not guaranteed.

If another man consumes it, he is liable for it, for protection fell only with respect to the thief, not with respect to others: he is therefore liable. And if amputation falls away due to a doubt, he is liable, for what prevents liability is amputation, and the impediment has ceased.

If the thief sells the stolen item to someone, or the acquirer obtains it from him by one of the means: if it subsists, its owner may take it, for it is his property in kind; and the acquirer may claim from the thief the price he paid, for claiming the price does not entail liability of the thief upon the stolen item itself, since he claims from him the price of the stolen item, not its value, so that this would not make the thief owner of the stolen item.

If it perished in his hand, no liability is upon the thief nor upon the taker; thus it is reported from Abu Yusuf. As for the thief, because amputation negates liability; as for the buyer, because were the owner to make him liable, he could claim that liability from the thief, so it would be as if the owner had made the thief liable, and his amputation negates liability from him.

If the taker consumed it, the owner may hold him liable for the value, because he took his property without his permission and it perished in his hand; and the buyer may claim the price from the thief, for claiming the price is not an imposition of liability.

If someone usurps it from the thief and it perishes in his hand after amputation: no liability for the thief nor for the victim; as for the thief, because he is not the owner; as for the owner, because the protection established as his right has been voided.

All this is after amputation. If the owner says before amputation: "I hold him liable for it", he is not amputated, for this entails his withdrawal from the claim of theft to a claim of property. The owner thus has the choice before amputation: if he wishes, he chooses amputation and does not charge him for the property; and if he wishes, he charges him for the property and there is no amputation (1).

The Malikis held that if he is solvent, amputation is due upon him and he is charged the value of the stolen item; if he is insolvent, he is not pursued for it as a debt, nothing is upon him, and he is amputated (2).

The Shafi'is and the Hanbalis held that if the stolen item perishes with the thief or is sold, the thief pays its value and is amputated, whether the payment precedes amputation or follows it, and whether he is solvent or insolvent, because of the word of Allah, the Most High:

As for the thief and the female thief, cut off their hands.

Surah Al-Ma'idah, 38

The apparent meaning requires his amputation even if he is charged, and as one who usurps a female slave and fornicates with her: the penalty is due upon him, and he returns her if she subsists and returns her value if she has perished, so penalty and indemnification combine upon him; likewise in theft.

Its precise formulation by analogy: the penalties of Allah, the Most High, do not entail the lapse of indemnification, like fornication with the usurped female slave; and every item for which amputation is due together with its return is such that amputation is due together with the return of its substitute: as when the thief sells it and consumes its price, he is amputated together with the return of the substitute of the price, just as he is amputated together with the return of the price; likewise in respect of the right of ownership. And amputation is due for taking it out of the safekeeping, while indemnification is due for its consumption; and every 2 rights due for 2 different causes may be combined, like the killing of owned game, in which expiation and value combine (1).

Imam Ibn Rushd, may Allah have mercy on him, said: they differed over whether indemnification is combined with amputation.

One group said: indemnification is due from him along with amputation; this is the view of al-Shafi'i, Ahmad, al-Layth, Abu Thawr and a group.

One group said: no indemnification is due from him if the victim does not find his goods in kind; among those who said this were Abu Hanifah, al-Thawri, Ibn Abi Layla and a group.

Malik and his companions differentiated, saying: if he is solvent, the thief is pursued for the value of the stolen item; if he is insolvent, he is not pursued, even if he later becomes rich; and Malik required, as Ibn al-Qasim transmitted from him, the continuance of solvency until the day of amputation.

The pillar of those who combine the 2: 2 rights met in theft, a right of Allah and a right of a human being, and each right required what it obligates; moreover, since they agreed on taking it from him when found in kind, it follows, when it is not found in kind with him, that it is under his liability, by analogy with the other obligatory properties.

The pillar of the Kufans is the hadith of Abd al-Rahman ibn Awf that the messenger of Allah, may the peace and blessings of Allah be upon him, said: "The thief is not charged with indemnification when the penalty is executed upon him." This hadith is weakened among the scholars of hadith; Abu Umar said: because it is, according to them, disconnected; he said: some of them connected it, and al-Nasa'i transmitted it.

The Kufans say that the meeting of 2 rights in a single right contradicts the principles, and they say that amputation is a substitute for indemnification; hence they hold that if someone steals something and is amputated for it, then steals it a second time, he is not amputated for it.

As for Malik's differentiation, it is juristic preference outside analogy (1).

The Book of Highway Robbers

Retraction of the Confession

The jurists of the 4 madhhabs agreed, according to the correct view among them, that whoever confesses against himself to theft and then retracts his confession: his confession is accepted and the penalty of amputation is not executed upon him, because of the hadith of Abu Umayyah al-Makhzumi, may Allah be pleased with him:

A thief was brought to the messenger of Allah, may the peace and blessings of Allah be upon him, and he acknowledged it while no goods were found with him. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "I do not think you stole." He said: "I did", twice or 3 times. The messenger of Allah, may the peace and blessings of Allah be upon him, then said: "Amputate him, then bring him back to me." He was amputated and brought back. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "Say: I seek forgiveness from Allah and repent to Him." He said: "I seek forgiveness from Allah and repent to Him." The messenger of Allah, may the peace and blessings of Allah be upon him, said: "O Allah, accept his repentance."

weak hadith: reported by Abu Dawud (4380), al-Nasa'i (4877), Ibn Majah (2597) and Ahmad (22561)

Were amputation not lifted by retraction, the Prophet, may the peace and blessings of Allah be upon him, would not have hinted to him about retraction. It is also a right of Allah, the Most High: it is therefore lifted, like the penalty for fornication.

Penalties are also averted by doubts, and his retraction is a doubt, because of the possibility that he lied against himself in his acknowledgment; and it is one of the 2 proofs of amputation: it is voided by retraction, like testimony; and the proof of amputation ceased before its execution: it therefore falls away, as when the witnesses retract. It differs from the right of a human being, which is built on tenacity and narrowness (2).

Abu Umar Ibn Abd al-Barr, may Allah have mercy on him, said: Malik, al-Shafi'i, Abu Hanifah and his companions agreed that the retraction of one who confesses to fornication or wine drinking is accepted; likewise theft: if the thief confesses to it concerning a man's property and safekeeping, and that man gives him the lie without claiming theft, and the thief then retracts his confession, his retraction is accepted according to Malik and those we mentioned with him (3).

Imam al-Imrani, may Allah have mercy on him, said: if he retracts his confession, amputation falls away from him; and this is the view of most of the people of knowledge (4).

Ibn Qudamah, may Allah have mercy on him, said: this is the view of the majority of jurists (5).

Ibn al-Humam, may Allah have mercy on him, said: if he confesses to theft and then retracts, saying: "I did not steal; it is my property", he is not amputated, by consensus (1).

The Shafi'is, in one view, held that his retraction is not accepted (2).

Some Malikis, such as Ashhab and Ibn al-Majishun, said that it is accepted only if he retracts based on a doubt (3).

Is He Released from the Property He Confessed To and Then Retracted, or Not?

The jurists of the 4 madhhabs, Hanafis, Malikis, Shafi'is and Hanbalis, stated that if one confesses to stealing someone's property and then retracts, saying: "I did not steal", his retraction is not accepted regarding the property: he owes compensation of the property to the one to whom he confessed, even if he confessed only once according to the Hanbalis, because it is a right of a human being (4).

Prompting the Confessor of Theft to Retract His Confession

The jurists of the 4 madhhabs agreed that it is permissible, in the case of one who has confessed against himself to a theft entailing the penalty, for the imam to prompt him toward retraction by way of allusion, saying to him for instance:

"I do not think you stole", or "perhaps you took it from outside a safekeeping", or something of that sort, because of the hadith of Abu Umayyah al-Makhzumi, may Allah be pleased with him:

A thief was brought to the messenger of Allah, may the peace and blessings of Allah be upon him, and he acknowledged it while no goods were found with him. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "I do not think you stole." He said: "I did", twice or 3 times. The messenger of Allah, may the peace and blessings of Allah be upon him, then said: "Amputate him, then bring him back to me." He was amputated and brought back. The messenger of Allah, may the peace and blessings of Allah be upon him, said to him: "Say: I seek forgiveness from Allah and repent to Him." He said: "I seek forgiveness from Allah and repent to Him." The messenger of Allah, may the peace and blessings of Allah be upon him, said: "O Allah, accept his repentance."

weak hadith: reported by Abu Dawud (4380), al-Nasa'i (4877), Ibn Majah (2597) and Ahmad (22561)

It is reported from Umar, may Allah be pleased with him: "A man was brought to him, and he said: 'Did you steal? Say: no.' He said: 'No', and he let him go" (2).

Imam Ibn Qudamah, may Allah have mercy on him, said: Ahmad said: there is no harm in prompting the thief to retract his confession, and this is the view of the generality of jurists (3).

Imam al-Nawawi, may Allah have mercy on him, said: the prompting of retraction from confession to penalties came from the Prophet, may the peace and blessings of Allah be upon him, from the rightly guided caliphs and from those after them, and the scholars agreed upon it (4).