Islamic Fiqh > Penalties (hudud) > Sariqa: theft in fiqh > The pillars of theft (sariqa)
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Updated on 27 September 2026 at 3:52 AM
The canonical qualification of theft (sariqa) carries the fixed penalty only when the jurist finds in it precise pillars and conditions: a conscious and free thief, a victim protected in her property and holding it validly, a lawful and valuable property of the required amount, kept in a guarded place and taken secretly, without kinship, without a claim of entitlement and without necessity. The sheets of the mawsu'a examine these elements one by one, school by school, with the proofs they draw from the Quran, the Sunna and the sayings of the Companions.
Every position is reported as the sheet attributes it, with the references it cites. Topics already covered elsewhere on this page (theft committed by a group and its points of disagreement, the cases that are not theft, the procedure of amputation) are not repeated here: this sheet covers the pillars of theft and the conditions set around the victim, the stolen property and the taking itself.
The first condition concerning the victim: being protected in her property, like the Muslim or the dhimmi. The jurists agree: when the Muslim or the dhimmi is robbed, amputation is due from the thief if the stolen property reaches the threshold with its conditions, detailed in the first part of the chapter.
They also agree that no fixed penalty is applied to whoever steals the property of a warring disbeliever: his property is fair game, whether the thief is a Muslim or a dhimmi.
The jurists disagree, however, when the Muslim or the dhimmi steals from the mu'ahad or the musta'min, the foreigner who entered the land of Islam under a covenant of safe-conduct: is his hand cut or not?
The Hanafis, the Shafi'is in the apparent view, and Ashhab among the Malikis hold that he is not amputated (Rawdat at-Talibin 6/579, adh-Dhakhira 3/447, Tathbir al-Mukhtasar 5/385). The qadi al-Kasani writes: as for the property of the warring musta'min in the land of Islam, there is no amputation, by istihsan; analogy would require amputation, for he stole a protected property: the foreign warrior obtained protection through the safe-conduct like the dhimmi, and he is liable for any destruction like him. The reason for the istihsan: this property carries a doubt of lawfulness, for the foreign warrior comes from the people of the land of war and enters the land of Islam only for some business, soon to depart; his belonging to the land of war casts a doubt of lawfulness over his property, as it does over his blood, so that the believer incurs no retaliation for killing him. His protection rested on an attribute of safe-conduct on the verge of vanishing; when it vanishes, it appears that the protection was never established on a lasting basis: every attribute resting on a basis joins, when it vanishes, the nonexistence of that basis, as if it had never been; the protection is therefore as if not established, unlike the dhimmi: he belongs to the land of Islam and obtained a lasting protection, so that his blood and property are protected by an absolute protection without any doubt of lawfulness. This doubt does not affect the guarantee of the property: it is a right of men, and the rights of men are not extinguished by doubts (Bada'i' as-Sana'i' 7/71, al-Jawhara an-Nayyira 5/384).
The Shafi'is in one view: he is amputated if the treaty stipulates it, otherwise not (Rawdat at-Talibin 6/579).
The Malikis, the Shafi'is in another view and the Hanbalis: the Muslim is amputated for stealing the property of the protected foreigner, for he stole a protected property from a guarded place of the same kind, and his amputation is due like that of the thief of a dhimmi's property (al-Ifsah 2/285, Tahdhib al-Mudawwana 2/246, at-Taj wa-l-Iklil 2/391, Rawdat at-Talibin 6/579, al-Mughni 9/112, Kashshaf al-Qina' 6/181, Matalib Uli an-Nuha 6/244-245).
The jurists require that the victim have a valid hold (yad) on the property: being its owner, or the owner's substitute, guardian or agent, for his hold equals the owner's. They disagree when the hold of the one robbed is not valid: does one steal the property of a thief or of a usurper? Is the second thief's hand cut?
The Hanafis distinguish theft committed against a thief from theft committed against a usurper. Whoever steals from a thief, before or after his amputation, is not amputated: the first thief's hold is not valid, being neither the hold of an owner, nor of a trustee, nor of a guarantor; it is a lost hold that protects nothing, so that taking from him equals taking from the public road. He is not amputated on the owner's claim either, for the first thief had no valid hold on the property. If, however, amputation was warded off from the first thief by a doubt and a second man steals from him, the second is amputated: once the doubt is warded off, the taking carries the guarantee; the guarantor's hold is a valid hold whose removal entails amputation, and the first thief becomes like a usurper.
Another view: if he steals before the first thief's amputation, or after that one was warded off from the penalty by a doubt, the amputation remains due on his account as on the owner's account, for the lapse of the property's lawful value, which is a condition of amputation, did not occur; after the amputation, however, there is no amputation at all.
If the theft is committed against a usurper, the thief's hand is cut: the usurper's hold is a hold of guarantee, hence a valid hold (al-Mabsut 9/145, al-'Inaya 7/384, Sharh Fath al-Qadir 5/404, Tabyin al-Haqa'iq 3/229, al-Bahr al-Ra'iq 5/69, al-Jawhara an-Nayyira 5/411, ad-Durr al-Mukhtar 4/108).
The Malikis and the Shafi'is in one view hold the amputation if he steals from a thief, a trustee or the like: he stole a threshold without any doubt from a guarded place of the same kind, and the amputation is due as on the first thief. The Malikis add that the second thief's statement, that he stole in order to return the property to its owner, is not accepted (Hashiyat ad-Dasuqi with ash-Sharh al-Kabir 6/339, al-Hawi al-Kabir 13/312, al-Bayan 12/477-478).
The Shafi'is in the school and the Hanbalis: if a thief steals a threshold from a guarded place, then keeps it in a guarded place of his own, and a second thief steals it from him in that place: the first owes amputation for his own theft; but he may claim from the second neither the return of the threshold nor the amputation, for he has no right over that property. The owner of the threshold may claim its return from the second thief, without amputation however: the second stole neither from the owner nor from his substitute, and the owner never accepted that guarded place as a guard for his property.
And if a man usurps a threshold from another, keeps it in a similar guarded place, and a thief steals it from him in that place: no amputation upon the usurper, nor upon the thief who steals the usurper's property, for he stole neither from the owner nor from his substitute (al-Hawi al-Kabir 13/312, al-Bayan 12/477-478, Kashshaf al-Qina' 6/165, Sharh Muntaha al-Iradat 6/233, Matalib Uli an-Nuha 6/229).
The vizier Ibn Hubayra reports the disagreement about one who steals the stolen object from the thief, or the usurped object from the usurper. Abu Hanifa holds the amputation of the thief of the usurped object, and not that of the thief of the already stolen object if the first thief was amputated; if the first was not amputated, the second is. Malik holds the amputation of both. Al-Shafi'i and Ahmad: the amputation falls on neither of the two, that is, neither on the thief of a thief nor on the usurper of a usurper (al-Ifsah 2/280).
To establish the fixed penalty, the jurists require of the stolen property that it be legally valuable, that it reach the threshold and that it be in a guarded place. First requirement: that it be property. What is not property carries no fixed penalty upon the thief. On this basis they examined the theft of a free child.
The jurists disagree about one who steals a free child: does the penalty apply, and must the ornaments he wears reach the threshold? The Hanafis, the Shafi'is, the Hanbalis in the school, and Ibn al-Majishun among the Malikis: whoever steals a small child is not amputated, for the child is not property, and the amputation belongs to the theft of legally valuable property. If the child wears ornaments reaching the threshold, the Hanafis in the apparent transmission, the Shafi'is in the soundest view and the Hanbalis in the school: no amputation; the child's hold is established over the ornaments he carries, just as the foundling keeps what is found with him; stealing his ornaments equals stealing the goods of an owner asleep upon them.
Abu Yusuf, the Shafi'is in one view and the Hanbalis in one statement: he is amputated if the ornaments reach the threshold, for the ornaments' value alone forms a complete threshold that would entail amputation if he stole them alone; the same applies over the child, and the intended object is the ornament, not the child (al-Mabsut 9/161, Tuhfat al-Fuqaha 3/154, Bada'i' as-Sana'i' 7/67, al-Hawi al-Kabir 13/304, al-Muhadhdhab 2/281, al-Bayan 12/469, Asna al-Matalib 4/148-149, Mughni al-Muhtaj 5/483, al-Kafi 4/176, al-Furu' 6/124, al-Ifsah 2/275).
If he steals a slave who neither speaks nor discerns, Abu Hanifa holds the amputation: he is property in every respect, the characteristic of ownership is found in him to its fullest and he has no hold over himself; the pillar of theft is realized as with a beast, and his humanity does not annul his being property: he is human in every respect and property in every respect, with no contradiction between the two. The amputation therefore attaches to his theft as property, not as a human being. It is otherwise with the slave endowed with discernment: although he is property in every respect, he is in his own hold, and the hold of another over him is inconceivable; the pillar of theft, which is the taking, is therefore not realized.
It is reported from Abu Yusuf that there is no amputation: the slave is not pure property; he is property from one side and human from the other; the locus of theft is therefore established from one side and not the other, and uncertainty prevents its establishment: no amputation, like the discerning child (al-Mabsut 9/161, Tuhfat al-Fuqaha 3/154, Bada'i' as-Sana'i' 7/67).
The Malikis in the school and the Hanbalis in a transmission: whoever steals a free child, or a male or female slave, from his guarded place is amputated; if the slave is grown and eloquent, he is not amputated; if mute or insane, he is; whether the threshold is found on him or not, and whether the thief profited from the child or the insane person or not. The child's guarded place: being in his family's house, or having near him someone who serves or watches over him; otherwise, no amputation (at-Taj wa-l-Iklil 5/345, Sharh Mukhtasar Khalil 8/94, ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 6/335, Tathbir al-Mukhtasar 5/363, al-Kafi 4/176, al-Furu' 6/124, al-Ifsah 2/275).
As for the free child, the question is the preceding one; as for the slave, Ibn al-Mundhir reports consensus: whoever steals him has his hand cut. He says: they agreed that whoever steals a young slave from a guarded place is liable to the amputation (al-Ijma' 614). Al-Shafi'i said: "If one steals a young slave without discernment, or a mute, from a guarded place, he is amputated; if the slave discerns, he is not amputated." The qadi al-Mawardi said: this is sound; the state of the stolen slave can only be in a guarded place or outside every guarded place. Outside every guarded place: no amputation upon his thief, young or grown. In a guarded place, which is a house with its door closed or the presence of his master, his state is one of two cases: the first, he is rational and discerning, distinguishing his master's command from what comes from others: no amputation upon his thief, for he allows himself to be deceived and cannot be considered stolen; the second, he is young or mute, lacking the discernment that distinguishes his master's command: the amputation upon his thief is obligatory, and this is the view of Abu Hanifa, Malik and Muhammad. Abu Yusuf said: "No amputation; the one who is not amputated for his theft when grown is not amputated when young, like the free person." This statement is erroneous: he is an owned beast without discernment, whose theft must entail the amputation like that of a beast (al-Hawi al-Kabir 13/302).
Imam Ibn Qudama said: if he steals a young slave, the amputation is due upon him according to most of the people of knowledge. Ibn al-Mundhir reports the consensus of everyone he remembers: al-Hasan, Malik, ath-Thawri, al-Shafi'i, Ishaq, Abu Thawr, Abu Hanifa and Muhammad. The young slave whose theft entails the amputation is the one without discernment; if he is grown, his thief is not amputated, unless he is asleep, insane or mute, unable to distinguish his master from others in obedience. Abu Yusuf: the thief of the slave is not amputated, even if young; for the one who is not amputated for his theft when grown is not amputated for it when young, like the free person. The answer: he stole an owned property whose value reaches the threshold, and the amputation is due as for all animals; he differs from the free person, who is neither property nor possession.
The jurists require the stolen property to be legally valuable. Whoever steals what has no value in the law: wine, pork, a carcass, an instrument of amusement, a cross, an idol, forbidden books: no amputation, by agreement of the four schools, whether the wine belongs to a Muslim or to a dhimmi; it is not property for us: it is property among them, it is not property for us. What is property from one angle and not property from another has, at the least, the status of a doubt warding off the penalty from its thief, like the one who has relations with a slave woman he shares with another. The Muslim, moreover, is punished for possessing wine and ordered to rinse it or pour it away: whoever takes it only removed his hand from what had to be removed, and he is therefore not amputated. He must however pay its price to the dhimmi according to the Hanafis and the Malikis; the Shafi'is and the Hanbalis do not make him pay, for the guarantee and the amputation concern only what has a lawful price (Ahkam al-Qur'an 4/77-78, al-Mabsut 9/189, al-Mudawwana al-Kubra 16/278, Sharh Mukhtasar Khalil 8/96, ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 6/340, Tathbir al-Mukhtasar 5/638, al-Umm 6/147, Rawdat at-Talibin 6/547, al-Mughni 9/114-115, Sharh az-Zarkashi 3/131).
Imam Ibn Qudama said: no amputation for a forbidden thing nor for an instrument of amusement: neither for stealing a forbidden thing such as wine, pork, a carcass and the like, whether he steals it from a Muslim or from a dhimmi; this is the view of al-Shafi'i, Abu Thawr and the people of reasoned opinion. It is reported from 'Ata that the thief of a dhimmi's wine is amputated even if he is a Muslim, for it is property to them, like the theft of their dirhams.
The reply: it is a forbidden thing in itself, one is not amputated for stealing it, like the pig; and what one is not amputated for stealing from a Muslim's property, one is not amputated for stealing from a dhimmi's property either, like the carcass and the blood. The adverse argument collapses with the pig, which deserves no consideration: the criterion is the ruling of Islam, which applies to them without their own rulings being taken into account. Such is also the disagreement over the cross whose value, with its workmanship, reaches the threshold. As for the instrument of amusement, the long-necked lute, the flute or the small flute, there is no amputation for stealing it even if its detailed value reached the threshold: this is the view of Abu Hanifa. The companions of al-Shafi'i: if he steals an instrument whose value, after dismantling, reaches the threshold, he is amputated, otherwise not; for he stole a property of threshold value, without any doubt, from a guarded place of the same kind, and he is among those whose hand is cut, like the one who steals broken gold.
Further reply: it is by consensus an instrument of disobedience, one is not amputated for stealing it, like wine; and because the thief has the right to take it in order to break it, which is a doubt blocking the amputation, like his right over his child's property. If he steals an instrument adorned with ornaments reaching the threshold, there is no amputation either according to Abu Bakr's reasoning: the ornament is attached to what carries no amputation and resembles the wood and the strings. The qadi Abu Ya'la holds the amputation, which is the school of al-Shafi'i: he stole a threshold from its guarded place, like the object taken on its own.
Chapter: if he steals a golden or silver cross whose value, taken whole, reaches the threshold: the qadi Abu Ya'la holds that there is no amputation, like Abu Hanifa; Abu al-Khattab holds the amputation of its thief, which is the school of al-Shafi'i. The difference between this question and the preceding one: in the preceding one, the cross could be broken so that no value remained at the threshold; here, breaking the gold and the silver in any manner does not bring their value below the threshold; gold and silver have a substance that dominates the forbidden workmanship, and the craft is submerged in them relative to the value of their matter, unlike the other instruments where the workmanship dominates: their seller then sells a forbidden craft, and the instrument resembles the vessel.
If he steals a gold or silver vessel whose value reaches the threshold when broken, the amputation is due: it is not forbidden by consensus, and its value without the disputed workmanship reaches the threshold. If he steals a vessel prepared to carry wine and contain it, the amputation is due: the vessel has nothing forbidden in itself; what becomes unlawful is its build and its purpose; it resembles the one who steals a knife prepared for slaughtering pigs, or a sword prepared for waylaying the road. If he steals a vessel containing wine, of threshold value: Abu al-Khattab holds the amputation, which is the school of al-Shafi'i, for he stole a threshold from a guarded place of the same kind, without any doubt; the other Hanbalis: no amputation, for the vessel follows what carries no amputation and resembles stealing a thing shared between him and another. Abu Ishaq ibn Shaqala adds: if he steals a waterskin or a vessel containing water, there is no amputation either.
If he steals a handkerchief at the edge of which a dinar is sewn, and he knows it, the amputation is due; if he does not know it, there is no amputation: he did not intend stealing the dinar, as if it were an ornament of his garment. Al-Shafi'i holds the amputation: he stole a threshold, like the one who steals without knowing that the value reaches the threshold. The difference: here he knew about the handkerchief and intended its theft; the dinar he neither wanted nor intended, and the fixed penalty is not charged to him for what he did not take (al-Mughni 9/114-115, Sharh az-Zarkashi 3/131).
The jurists of the four schools agree: the stolen property must reach the threshold (nisab) for the hands to be cut; a trifling thing carries no amputation among them. They disagree over the amount: a quarter of a dinar, or its equivalent of three dirhams, or ten dirhams?
The Malikis and the Hanbalis in the school: the minimum threshold of theft is a quarter of a dinar of pure gold and above, or three dirhams of silver; for the hadith of Aisha (may Allah be pleased with her) from the Prophet, peace and blessings upon him:
"The thief's hand is not cut except for a quarter of a dinar and above."
reported by Muslim (1684)
Likewise from her, as a statement of the Prophet:
"Amputate for a quarter of a dinar, and do not amputate for what is below; the quarter of a dinar was then three dirhams, and the dinar twelve dirhams."
weak hadith: reported by Imam Ahmad (24559) and by al-Bayhaqi in as-Sunan al-Kubra (16941)
If he steals something other than gold and silver, merchandise for instance, it is valued at their equivalent; for the hadith of Ibn Umar (may Allah be pleased with both):
The Prophet cut off the hand of a thief who had stolen a shield from the veranda of the women, worth three dirhams.
sound hadith: reported by Abu Dawud (4386) and an-Nasa'i (4909)
The Prophet cut off the hand for a shield worth three dirhams.
reported by al-Bukhari (6795) and Muslim (1686)
This shows that the criterion is the dirham once this amount is reached: the dirham is the basis of value in prices and in compensation for destroyed property; theft must therefore be assessed by a quantity intrinsic to the stolen property, whose origin is gold. The valuation takes place at the moment of removal from the guarded place, which is the moment of obligation, for the cause is found there (al-Ishraf 'ala Naktat Masail al-Khilaf 4/452, 454 no. 1759, al-Qawanin al-Fiqhiyya p. 236, at-Taj wa-l-Iklil 5/345-346, ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 6/335-336, Tathbir al-Mukhtasar 5/363, al-Mughni 9/94, al-Kafi 4/175, Sharh az-Zarkashi 3/122, al-Mubdi' 9/120, Kashshaf al-Qina' 6/167, Sharh Muntaha al-Iradat 6/236-237, Manar as-Sabil 3/336-337).
The Hanbalis in a transmission: goods are valued only by dirhams, for the valuation is obtained through them and not through gold: what equals three dirhams entails the amputation without reaching the quarter of a dinar; what is less does not, even at the quarter of a dinar. From Imam Ahmad: if he steals, other than gold and silver, what is worth a quarter of a dinar or three dirhams, he is amputated: non-monetary goods are thus valued at the lower of the two amounts (al-Mughni 9/94, al-Kafi 4/175, Sharh az-Zarkashi 3/122, al-Mubdi' 9/120).
The Shafi'is: the minimum threshold, below which there is no amputation, is a quarter of a dinar of pure gold; for the hadith of Aisha (Muslim 1684). Other than gold, valuation follows gold, for it is its basis: even the dirhams are valued in gold; if the value in dinars is not known, it is valued in dirhams, then the dirhams in dinars; if there are no dinars at the place of theft, one refers to the nearest place that has them (al-Bayan 12/436-437, Rawdat at-Talibin 6/541-542, an-Najm al-Wahhaj 9/150-151, Mughni al-Muhtaj 5/459, Nihayat al-Muhtaj 7/508).
The Hanafis: the threshold of theft is ten dirhams, or their value, all at once; whether the ten dirhams belong to one owner or to several, if they are in one guarded place without any doubt, the amputation is due; for what Abdullah ibn Mas'ud (may Allah be pleased with him) reports from the Prophet:
"No amputation, except for ten dirhams."
reported by at-Tabarani in al-Awsat (7142); weak hadith: al-Haythami says in Majma' az-Zawa'id (6/422) that its chain is weak
From Ibn Abbas (may Allah be pleased with both):
The Messenger of Allah cut off a man's hand for a shield worth a dinar, that is, ten dirhams.
odd report: reported by Abu Dawud (4389)
The origin of this question: the penalty is due only from an amount fixed by the Text or by agreement; the textual transmission is not established below ten, while the agreement is established on ten: we therefore hold the ten, without holding what is below, for lack of Text and agreement. The value of the stolen property must be ten, from the moment of the theft to the moment of the amputation: if the price falls between the two, there is no amputation. And if the theft takes place in one land and the case comes before a judge of another land, the value of the stolen property must reach the threshold in both lands (Ahkam al-Qur'an 4/64-65, al-Ikhtiyar 4/123, al-Jawhara an-Nayyira 5/381-383, al-Lubab 2/321).
The guarded place (hirz) is the place where the stolen property is kept safe: a house, a shop, the back of a mount, a ship; every place where people customarily keep their property, and this varies with the people's customs (al-Qawanin al-Fiqhiyya p. 236).
The jurists of the four schools agree: a condition of theft, for establishing the penalty, is that the property have been taken from a guarded place; for the hadith of Amr ibn Shu'ayb, from his father and his grandfather:
A man of the tribe of Muzayna came to the Messenger of Allah and said: "O Messenger of Allah, what do you think of the mountain pen?" He said: "It, and its like, with exemplary punishment; there is no amputation in livestock, except for what the night fold shelters and which reaches the price of the shield: the hand is then cut; what is below entails an equivalent compensation and exemplary lashes." He said: "And the hanging fruit?" He said: "It, and its like, with the exemplary punishment; no amputation in the hanging fruit, except for what the drying floor shelters: what is taken from it and reaches the price of the shield entails the amputation; what is below, an equivalent compensation and exemplary lashes."
good hadith: reported by Abu Dawud (1710), at-Tirmidhi (1289), an-Nasa'i (4959), Ibn Majah (2596) and Ahmad (6683)
The Prophet, peace and blessings upon him, therefore set aside the amputation in livestock, except what the night fold shelters, which is the place where the livestock spends the night, and in the hanging fruit, except what the drying floor shelters; yet there is no difference between the two situations, except that the thing is kept in one of the places and not in the other: proof that the guarded place is a condition of the amputation.
And because the pillar of theft is the taking with an appearance of concealment; taking from outside a guarded place requires no hiding, so the pillar is not realized. And because the amputation was prescribed to protect the properties of their owners, cutting off the covetousness of thieves from the people's property; covetousness is drawn only to what weighs upon hearts: what is not kept does not weigh, as a rule, upon hearts; covetousness is not drawn to it, and protection through amputation has no object. This is why there is no amputation either below the threshold, or for what is not valuable property capable of being kept (Bada'i' as-Sana'i' 7/73, al-Jawhara an-Nayyira 5/384, al-Hawi al-Kabir 13/280, al-Muhadhdhab 2/277, al-Bayan 12/444).
The jurists agree: the taking must be done in concealment. Whoever snatches, plunders or usurps is not a thief, and none of them is amputated, all of them agree; for the hadith of Jabir (may Allah be pleased with both):
"No amputation upon the plunderer; whoever plunders a notorious plunder is not one of us; no amputation upon the betrayer."
sound hadith: reported by Abu Dawud (4391, 4392), an-Nasa'i (4973, 4974) and Ahmad (15112)
"No amputation upon the furtive snatcher."
sound hadith: reported by Abu Dawud (4393); Ibn Hibban reports in his Sahih (4457): "No amputation upon a plunderer, a furtive snatcher, or a betrayer."
On this basis, the scholars reached consensus: no amputation upon a betrayer, a furtive snatcher, a plunderer or a usurper, for the amputation is due to the thief and these are not thieves; and the furtive snatching is a kind of snatching and plunder, whose author hides only at the beginning of his act, unlike the thief (Bada'i' as-Sana'i' 7/65, al-Bahr al-Ra'iq 5/60, Rawdat at-Talibin 6/567, Nihayat al-Muhtaj 7/507).
Imam Ibn al-Mundhir: they agreed on the absence of amputation for the furtive snatcher; Iyas ibn Mu'awiya alone held the amputation. They also agreed on the absence of amputation for the betrayer (al-Ijma' 618-619). Ibn Abd al-Barr: the people of knowledge reached consensus: furtive snatching and betrayal carry no amputation; he knows no one other than Iyas ibn Mu'awiya who made it obligatory; all the other people of knowledge do not hold it (al-Istidhkar 7/565). He adds: they agreed that there is no amputation upon the usurper, nor upon the one who takes by overwhelming coercion, unless he is a highway brigand, armed, spreading terror on the roads: his ruling is then that of the belligerent (muharib), already mentioned (al-Istidhkar 7/566, 7/568).
Imam Ibn Rushd: they agreed that neither betrayal nor furtive snatching carries the amputation, except Iyas ibn Mu'awiya; likewise, the usurper and the one who takes by prevailing violence are not amputated, unless he is an armed brigand terrifying the roads: he then has the ruling of the belligerent (Bidayat al-Mujtahid 2/334).
Imam Ibn al-Arabi, the Maliki: the community reached consensus: no amputation upon the furtive snatcher nor the plunderer, for no guarded place is breached there; whoever breaches no guarded place, no one imposes the amputation on him (Ahkam al-Qur'an 2/111). Imam Ibn Hubayra: they agreed: despite the enormity of their crime and their sins, there is no amputation upon any of them (al-Ifsah 2/285).
Imam Ibn Hazm: the furtive snatcher falls into one of two cases: either he seized the property openly without hiding from the people, and all agree that he is not a thief and is not amputated; or he did so hiding from everyone present, and even our opponents agree with us that he is a thief and that the amputation is due upon him (al-Muhalla 11/326). Imam Ibn Qudama: whoever snatches or takes furtively is not a thief and is not amputated, according to everyone we know, except Iyas ibn Mu'awiya, who used to say: "I amputate the furtive snatcher; he conceals his taking, he is therefore a thief"; the jurists and muftis among the scholars of the capitals are against him (al-Mughni 9/93).
Definitions. The plunderer: the one who takes openly, by force, in a town or a village (ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 6/351, Hashiyat as-Sawi 10/303, al-Bahr al-Ra'iq 5/60). The furtive snatcher: the one who snatches the property before its owner, in a moment of inattention, and departs quickly in the open, whether he came in secret or openly (al-Bahr al-Ra'iq 5/60, Rawdat at-Talibin 6/576). Another definition: the one who snatches the property without overpowering, relying on flight; this, in one view, in the owner's inattention; in another, before his eyes, and this is the sound one (Tahrir alfaz at-Tanbih p. 327). The difference: the plunderer relies on his strength and takes openly, with calm and assurance; the furtive snatcher aims at flight and takes openly, but quickly and with fear; theft, for its part, is done in concealment (Rawdat at-Talibin 6/567, Hashiyat al-Labadi p. 402). Betrayal: taking what is in one's hand as an entrusted trust: the guest one hosts, the gratuitous borrower, the depositary, the hired man, the partner (al-Bahr al-Ra'iq 5/60, al-Kafi of Ibn Abd al-Barr 578).
The Shafi'is and the Hanbalis texted it, and it is what the statements of the Hanafis and the Malikis imply: among the conditions of the amputation, that the thief know that theft is forbidden. Ignorance of this prohibition is indeed a doubt, and the penalty is warded off by doubt as far as possible; Umar, Uthman and Ali (may Allah be pleased with them) used to say: "No fixed penalty, except upon the one who knows it." The claim of not knowing the prohibition is nevertheless not accepted from whoever grew up among the Muslims (Mughni al-Muhtaj 5/485, Kashshaf al-Qina' 6/165, Sharh Muntaha al-Iradat 6/233). The sheet refers for the detail to the book of zina, in the same chapter of conditions.
The Maliki and Shafi'i jurists texted it, and it is what the statements of the Hanafis and the Hanbalis imply: a condition of the amputation is that the thief intended the theft, and that what he took is not his: it is a property owned by another, taken without the owner's knowledge or consent. No amputation therefore upon whoever takes a property believing it lawful or abandoned (al-Qawanin al-Fiqhiyya p. 236, al-Bayan 12/434, Kashshaf al-Qina' 6/165).
The generality of the jurists, Hanafis, Malikis, Shafi'is (with details among them) and Hanbalis, texted it: among the conditions of the amputation, that the thief not be compelled to steal by hunger. Ibn Juzayy writes: that he not be compelled to steal by hunger (al-Qawanin al-Fiqhiyya p. 235, Sharh az-Zarqani 4/192).
The Hanafis: no amputation in a case of necessity, nor during the year of drought, for necessity permits taking another's property according to need, which blocks the amputation. Makhul reports that the Prophet, peace and blessings upon him, said: "No amputation in the hunger of one who is compelled." Al-Hasan reports from a man: "I saw two men carrying wrapped meat; I went with them to Umar (may Allah be pleased with him). The owner of the meat said: we had a pregnant she-camel which we awaited as spring is awaited, and I found these two slaughtering her. Umar said: do two pregnant she-camels, four years old, satisfy you? We do not amputate for the palm spadix, nor during the year of drought." It was indeed a year of drought. The she-camel ten months pregnant, close to delivery, is what her owners hold dearest: from her they await the abundance of milk as spring is awaited. The word "spadix": some narrate "the flesh"; the most famous is the palm spadix: the meaning is the absence of amputation during the year of drought, out of necessity and hunger (al-Mabsut 9/140, Sharh Fath al-Qadir 5/367, al-Bahr al-Ra'iq 5/58).
The Shafi'is detail: if a thief steals food during the year of famine, two cases: if the food exists, even if expensive, the amputation is due: what exists cannot be taken without its owner's permission, like food outside famine. If the food does not exist, there is no amputation upon whoever steals it to eat: Umar used to say "no amputation during the year of famine", and "no amputation during the year of drought", the year of drought bearing this name. Marwan, for his part: a thief was brought to him and he did not amputate him, saying: "He seems compelled to it"; for whoever is compelled to another's food may take it and fight its owner: this thief was compelled, he is therefore not amputated (al-Bayan 12/480).
The shaykh Zakariyya al-Ansari specifies: one amputates for stealing food in a time of famine if it exists, even if scarce and at a high price, and if the thief can afford it; if it is scarce to the point of being unfindable and he cannot afford it, there is no amputation: he is like the compelled one. On this reading is interpreted Umar's statement: "No amputation during the year of famine", whether he takes according to his need or beyond: he may break the guarded place to save his life, as ar-Ruyani declared (Asna al-Matalib 4/146).
Imam Ibn Qudama: Ahmad said: no amputation during famine: the needy who steals what he eats is not amputated, for he is like the compelled one. Al-Jawzajani reports from Umar: "No amputation during the year of drought." He learned that Ahmad approved, saying: "Yes, by Umar: I do not amputate if need drove him and the people are in hardship and famine." Al-Awza'i said the like. This statement applies to the one who finds nothing to buy, nor the means to buy: he has a doubt allowing him to take his food, or what buys it. It is reported from Umar: "The slaves of Hatib ibn Abi Balta'a slaughtered a she-camel belonging to a man of Muzayna; Umar ordered their hands cut, then said to Hatib: I see you starving them; he warded off their amputation, thinking he starved them." The one who finds food, or the means to buy what he will eat, is amputated even at a high price: the qadi mentioned it, and it is the school of al-Shafi'i (al-Mughni 9/118, al-Kafi 4/181).
Imam Ibn al-Qayyim cites a third example: "Umar ibn al-Khattab set aside the amputation from the thief during the year of famine." Ibn Hudayr reports from Umar: "The hand is not cut for the palm spadix, nor during the year of drought." As-Sa'di questioned Ahmad ibn Hanbal about this hadith: "The palm spadix is the palm tree; the year of drought is the famine. Do you hold it?" He said: "Yes, by Umar." If someone steals during a famine, do you not amputate him? He said: "No, if need compelled him and the people are in famine and hardship." The account of Hatib's slaves goes the same way: they stole a she-camel from a man of Muzayna and confessed; Umar sent for Abd ar-Rahman ibn Hatib and told him: "Go cut their hands." When he set out with them, Umar had them brought back and said: "By Allah, were it not that I know you employ them and starve them, to the point that if one of them ate what Allah forbade him, it would be lawful for him, I would have cut their hands. And by Allah, if I do not, I will inflict on you a painful fine. O man of Muzayna, at what price do you want your she-camel? Four hundred. Go give him eight hundred." (reported by Malik in al-Muwatta 2905)
Ahmad agreed with Umar on both chapters in the questions of Isma'il ibn Sa'id ash-Shalanji, explained by as-Sa'di in a book named al-Mutarjam: asked about the man who carries away the fruit from its clusters, Ahmad said: "Its price twice, and exemplary lashes"; and: "Everyone from whom we ward off the fixed penalty or retaliation, we make the fine heavier upon him." Ahmad thus agreed with al-Awza'i on the falling of the amputation during famine: this is pure analogy, in keeping with the rules of the law; in a year of famine, indeed, necessity overwhelms the people, and the thief is hardly safe from a constraint driving him to what sustains his breath; it falls to the owner to provide for him, for a price or free of charge, on which they differ; the sound position is the obligation to do it free of charge: solidarity and the duty to keep people alive are obligatory with capacity, and selfless giving is required in the face of the needy one's necessity. This is a strong doubt warding off the amputation from the needy, stronger than many of the doubts many jurists cite.
And when you compare this doubt with those they mention, the difference appears: where is the doubt that the stolen property be among what quickly perishes, or that its origin be lawfulness like water, the doubt of the amputation for it only once, the doubt of a claim of ownership without evidence, the doubt of its destruction in the guarded place by a beast or by suckling, the doubt of the diminution of its value in the guarded place by slaughter or burning then its removal, and the other very weak doubts, against this strong doubt, all the more so as the needy one is permitted to force the owner to give him what sustains his breath? The year of famine multiplies needs and compelled people, and the one who has no need can no longer be distinguished from the one who steals without need: the one deserving the penalty becomes like the one not deserving it, and the penalty is warded off. But as soon as it appears that the thief has no need and dispenses with theft, he is amputated (I'lam al-Muwaqqi'in 3/10, 3/12).
The thief may be the victim's ascendant, her descendant, a relative of another link, or her husband or wife: each situation has its ruling. The sheet treats here the first case: the ascendant stealing from his descendant.
The jurists of the four schools, Hanafis, Malikis, Shafi'is and Hanbalis, agree: no amputation upon the parent, however high, who steals from his child's property, however low; whether it is the father or the mother, the grandfather or the grandmother, from the father's side or the mother's.
Imam Ibn Abd al-Barr: the majority reached consensus: no amputation for what he steals of his child's property (al-Istidhkar 7/525). Imam al-Mawardi: no amputation upon whoever steals the property of any of his parents, however high: fathers, mothers, grandfathers and grandmothers, nor of any of his descendants, however low: sons, daughters, sons of sons and daughters; this is the view of the majority of jurists (al-Hawi al-Kabir 13/347-348). Imam Ibn Rushd: their consensus: no amputation for what he steals of his child's property (Bidayat al-Mujtahid 2/325). Imam Ibn Hubayra: they agreed: the parents, however high, are not amputated for what they steal of their children's property (al-Ifsah 2/278). Imam Ibn Qudama: the parent is not amputated for stealing his child's property, however low: father, mother, son, daughter, grandfather and grandmother, from the father's side and the mother's; this is the view of most of the people of knowledge: Malik, ath-Thawri, al-Shafi'i and the people of reasoned opinion (al-Mughni 9/116).
The jurists require, for the amputation, that the thief have no doubt of ownership or entitlement over the stolen property. Attached to this condition are the theft of a partner's property, of a waqf, of the Muslims' public treasury, and the creditor taking his due from his debtor (cases detailed in the parts of this page devoted to them). First case here: the partner stealing from the partnership's property.
The Hanafis, the Shafi'is in the apparent view and the Hanbalis: the partner is not amputated if he steals from a property in which he holds a share, however small, as in jointly owned property: every share carries a doubt, for every share is undivided between them; the property is not kept from him; and since the father is not amputated for his son's property because of the doubt, the absence of amputation for the partner is all the more fitting (al-Jawhara an-Nayyira 5/396, al-Lubab 2/328, al-Bayan 12/471-472, an-Najm al-Wahhaj 9/158, Mughni al-Muhtaj 5/465, Kashshaf al-Qina' 6/180, Sharh Muntaha al-Iradat 6/251).
The Shafi'is against the apparent view: he is amputated, for his partner's property carries no doubt for him (al-Bayan 12/471-472, an-Najm al-Wahhaj 9/158, Mughni al-Muhtaj 5/465).
The Malikis: among the conditions of the amputation, that the stolen property have been taken from someone whose ownership is complete, without the thief holding any share in it or any strong doubt. On this basis, the partner who steals from the partnership's property without being barred from it, his hand ranging over it together with his partner's, is not amputated. The partner is amputated only when two conditions are met. The first: that the partnership's property have been kept from him if he has no right to dispose of it, by depositing it with a third party, or by keeping it in someone else's hands for safekeeping; otherwise it is like the property not kept from him; or by closing the premises and leaving the keys with a third party; keys left with one of the two for safekeeping equal keys left with a third party. The second: that he steal beyond his right a threshold of the whole of the partnership's property, stolen and remaining, if the property is fungible: the whole property is worth twelve dirhams and he steals nine of them; his share, at equal halves, is six; he took beyond his right three dirhams, which form the threshold: this is Malik's texted position and the apparent meaning of the Mudawwana. Ashhab, Ibn al-Majishun and Asbagh: if he steals six dirhams of the whole, he is amputated.
If the property is non-fungible, the criterion is that there be, in what he steals, a threshold beyond his right, not in the whole of the property: the partnership bears on objects, books whose whole is worth twelve; he steals one specific book worth six: he is amputated, for his right is only half, and he stole beyond his right a threshold. The difference between the fungible and the non-fungible: in the fungible, the threshold stolen beyond his right is counted in the whole of the undivided property, stolen and remaining; in the non-fungible, only in what is stolen; for the non-fungible allows him to take his share only with his partner's consent, the purposes differing from one object to another: what he steals is in part his share, in part his partner's, and the remainder likewise. The fungible, for its part, allows him to take his share even if his partner refuses, the purposes not differing in it as a rule: what he took and what remains are therefore undivided between them. On this basis, if he was not barred from the property, or was barred but steals below his right, or beyond it but below the quarter of a dinar or the three dirhams, there is no amputation (at-Taj wa-l-Iklil 5/350, Sharh Mukhtasar Khalil 8/96-97, ash-Sharh al-Kabir with Hashiyat ad-Dasuqi 6/340-341, Tathbir al-Mukhtasar 5/369-370).
These conditions explain why the fixed penalty of theft was, through the history of fiqh, so rarely applied: the bar of proof, the threshold, the guarded place, the intention, the absence of doubt and of necessity close the road to the penalty more than they open it. Every school sets these conditions with its own list and its own proofs; the attributions reported here are those of the sheets of the mawsu'a, to be checked in the cited sources.