Islamic Fiqh > Penalties (hudud) > Sariqa: theft in fiqh > Theft committed by a group
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
As for the cause of the amputation: was it her theft? The narrator described her by her characteristic because what is mentioned is the cause of the amputation, as al-Shafi'i, Abu Hanifa and Malik say; or the cause mentioned is the cause of the amputation, as Ahmad and those who agree with him say. At this point we do not champion any particular school at all: if the correct view is that of the majority, the question falls away; and if the correct view is the other one, its agreement with analogy, wisdom and public interest is very evident.
The loan of usable property is indeed one of the interests of the children of Adam which they cannot do without and for which they have no substitute; it is due when the borrower needs it out of necessity, whether for a fee or gratis. The lender cannot, at every moment, have the loan witnessed, and it is not possible to guard against abuse by withholding such loans, neither in law, nor in custom, nor in common usage. In meaning, there is no difference between one who obtains possession of another's goods by theft and one who obtains them through a loan and then denies it. The case differs from that of the denier of a deposit: the owner of the goods was negligent in the very act of entrusting them (I'lam al-Muwaqqi'in 2/80 and 82).
The people of knowledge have expressed a consensus: if a group jointly pierces a place of safekeeping, its members steal, and the share taken by each of them reaches the nisab, they are all amputated. Imam al-Mawardi, may Allah have mercy on him, said: by consensus (al-Hawi al-Kabir 13/297).
Ibn Hubayra, may Allah have mercy on him, said: they agreed that if a group jointly commits a theft and each of them obtains the nisab, amputation is due upon each of them (al-Ifsah 2/273).
The jurists have, however, differed on several points:
The fixed penalty was applied upon her. This indicates that he cut her hand only for her theft, not because she used to borrow goods and deny them. Had that been the case, the Prophet, peace and blessings of Allah be upon him, would have said: what destroyed those before you is that when the notable among them borrowed goods and denied them, they left him alone. And he said at the end of the report: "By Allah, if Fatima, the daughter of Muhammad, stole, I would cut off her hand." All of this makes clear that the amputation took place only on account of the theft, not on account of the denial of the loan of the goods.
It may also be that she used to borrow goods and deny them, and then stole: the amputation of her hand then became due for the theft.
It is likewise possible that this Qurayshi woman of the Makhzum tribe used to borrow goods and deny them, and was known for that; then she stole, and it was said: the Messenger of Allah, peace and blessings of Allah be upon him, cut off the hand of the Makhzumiyya who used to borrow goods and deny them, meaning: for the theft (Ahkam al-Quran 4/66; see Sharh Fath al-Qadir 5/373, al-Bahr al-Raiq 5/60, Sharh Sahih al-Bukhari 8/410, al-Istidhkar 7/569 and 570, Bidayat al-Mujtahid 2/334, Sharh Sahih Muslim 11/188, al-Mughni 9/93 and 94, al-Kafi 4/174).
Imam Ibn al-Qayyim, may Allah have mercy on him, said: as for the amputation of the thief's hand from three dirhams upward, and the omission of amputation for the snatcher (al-mukhtalis), the plunderer (al-muntahib) and the usurper (al-ghasib), this too belongs to the perfection of the Legislator's wisdom. One cannot, in fact, guard against the thief: he tunnels into houses, violates the place of safekeeping and breaks the lock, and the owner of the goods cannot protect himself any further. If his amputation had not been prescribed, people would steal from one another, harm would grow great, and the trial of thieves would become severe; unlike the plunderer and the snatcher.
The plunderer, indeed, takes the wealth openly, in people's sight: they can seize him, restore the right of the wronged party, or testify for him before the judge.
As for the snatcher, he takes the wealth at a moment of inattention of the owner or of others: he is never free of some negligence that enabled him to snatch it; with perfect vigilance and alertness, snatching is impossible for him. He is therefore not like the thief: he rather resembles the betrayer of trust. Moreover, the snatcher mostly takes the wealth from other than a place of equivalent safekeeping: he is the one who catches you off guard and snatches your goods at the moment you have set them down and neglected to watch them; one can usually guard against him, and in this respect he is like the plunderer.
As for the usurper, the matter is plain: he is even more entitled than the plunderer to escape amputation. Yet it is lawful to restrain the aggression of all these by beating, exemplary punishment, lengthy imprisonment and punishment by confiscation of wealth.
If it is objected: the Sunna has prescribed the amputation of the denier of a loan, and at the very least he is a betrayer of trust; the lender himself enabled him to take possession of his wealth, and one can guard against him by not handing the wealth over to him: the distinction you have drawn collapses.
It is answered: by my life, the hadith is authentic, according to which:
"A woman used to borrow goods and deny them; the Prophet, peace and blessings of Allah be upon him, gave orders concerning her, and her hand was cut off."
Hadith whose authenticity is affirmed, cited by Ibn al-Qayyim in I'lam al-Muwaqqi'in
The jurists then differed over this question.
The jurists have laid down, for the application of the fixed penalty, that the stolen property be legally valuable (mutaqawwim), that it reach the nisab, and that it be in a place of safekeeping. The explanation of these conditions follows.
The jurists required, for the fixed penalty to be applied to the thief, that the object of the theft be property: what is not property carries no penalty. On this basis they differed over:
The jurists differed over the ruling on one who steals a free child: is the penalty applied to him, or not? And is it required that he carry jewellery reaching the nisab, or not?
The Hanafis, the Shafi'is, the Hanbalis according to the position of their school, and Ibn al-Majashun among the Malikis hold that one who steals a small child is not amputated: a child is not property, and the obligation of amputation is specific to the theft of legally valuable property.
They differed over the case where the child carries jewellery reaching the nisab: is one amputated, or not? The Hanafis according to the apparent version, the Shafi'is according to the more sound view, and the Hanbalis according to the position of their school hold that one is not amputated, because the child's hand is established over the jewellery he carries; for this reason, if a foundling were discovered with jewellery, the jewellery would belong to him. Amputation is therefore not due for stealing it, just as it is not due for goods whose owner is sleeping upon them.
Imam Abu Yusuf, the Shafi'is in one view, and the Hanbalis in one opinion hold that one is amputated if the child carries jewellery reaching the nisab: the value of the jewellery is a complete nisab which, stolen on its own, would entail amputation; the same applies with the child, all the more so as what is intended is the jewellery, not the child (al-Mabsut 9/161; see Tuhfat al-Fuqaha 3/154, Bada'i' al-Sana'i' 7/67, al-Hawi al-Kabir 13/304, al-Muhadhdhab 2/281, al-Bayan 12/469, Asna al-Matalib 4/148 and 149, Mughni al-Muhtaj 5/483, al-Kafi 4/176, al-Furu' 6/124, al-Ifsah 2/275).
If one steals a child in slavery who cannot speak or understand, amputation applies according to Abu Hanifa: he is property from every aspect, the meaning of monetary value being found in him in full, and he holds no hand over his own person; the pillar of theft is therefore realized in his case as with livestock. His being human does not negate his being property: he is human from every aspect and property from every aspect, there being no incompatibility; amputation attaches to his theft inasmuch as he is property, not inasmuch as he is human. It is otherwise with the rational slave: even though he is property from every aspect, he is in his own hand, and the hand of another cannot be established over him, by incompatibility; the pillar of theft, which is the taking, is therefore not realized in his case.
It is reported from Abu Yusuf, may Allah have mercy on him, that there is no amputation: a slave is not pure property; he is property in one respect and human in another; the locus of theft is therefore established in one respect and not in the other, and the capacity to be the object of theft is not established in case of doubt: there is no amputation, as with the rational free child (al-Mabsut 9/161; see Tuhfat al-Fuqaha 3/154, Bada'i' al-Sana'i' 7/67).
The Malikis according to the position of their school, and the Hanbalis in one report, hold that whoever steals a child, free or enslaved, male or female, from his place of safekeeping is amputated; if it is a grown, eloquent slave, there is no amputation; if he is a non-Arabic-speaking slave or insane, there is amputation; whether or not a nisab is with him, and whether or not the thief derives benefit from the child or the insane person.
The safekeeping of the child consists in his being in his family's home, or accompanied by someone who serves or guards him; otherwise, there is no amputation (at-Taj wa-l-Iklil 5/345; see Sharh Mukhtasar Khalil 8/94, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/335, Tahbir al-Mukhtasar 5/363, al-Kafi 4/176, al-Furu' 6/124, al-Ifsah 2/275).
The preceding difference concerns the theft of a free person. As for the slave, Ibn al-Mundhir transmitted the consensus that whoever steals him has his hand cut off. He said, may Allah have mercy on him: they agreed that whoever steals a small slave from his place of safekeeping incurs amputation (al-Ijma' 614).
Al-Shafi'i, may Allah have mercy on him, said: "If one steals a small slave who does not understand, or a non-Arabic-speaking slave, from a place of safekeeping, one is amputated; if he understands, one is not."
Al-Mawardi, may Allah have mercy on him, said: this is correct. The stolen slave is invariably either in a place of safekeeping or outside one. If he is outside a place of safekeeping, there is no amputation for his thief, whether he is small or grown. If he is in a place of safekeeping, which is either a house with its door locked or in the company of his master, his case is invariably one of two:
First: that he be rational and discriminating, distinguishing his master's command from that of another; then there is no amputation for his thief, for such a slave is a deceiver and is not a stolen object.
Second: that he be small, or non-Arabic-speaking without the reason of discrimination, not distinguishing his master's command from another's; then the amputation of his thief is obligatory. This is the view of Abu Hanifa, Malik and Muhammad. Abu Yusuf said: "There is no amputation, for since the theft of a grown slave carries no amputation, the theft of a small one carries none either, as with the free child." This is a mistake: he is an owned animal without discrimination, so amputation must apply to his theft, as with livestock (al-Hawi al-Kabir 13/302).
Imam Ibn Qudama, may Allah have mercy on him, said: whoever steals a small slave incurs amputation according to the view of the generality of the people of knowledge. Ibn al-Mundhir said: all the people of knowledge whose transmission we preserve agreed on this, among them al-Hasan, Malik, ath-Thawri, al-Shafi'i, Ishaq, Abu Thawr, Abu Hanifa and Muhammad.
The small one whose theft entails amputation is he who has no discrimination. If he is grown, his thief is not amputated, unless he is asleep, insane, or a non-Arabic-speaking slave who does not distinguish his master from another in obedience: then his thief is amputated.
Abu Yusuf said: the thief of a slave is not amputated even if he is small, for what does not entail amputation when stolen grown does not entail it when stolen small, like the free child.
Our argument: he stole owned property whose value reaches the nisab, so amputation is due upon him as with the other animals. He differs from the free person, who is neither property nor owned; and he differs from the grown slave, for the reason that follows.
The jurists laid down several conditions concerning the person stolen from:
The jurists agreed that it is required of the person stolen from that his wealth be legally protected, like the Muslim and the dhimmi. If wealth is stolen from a Muslim, or from a dhimmi, amputation is due upon its thief when what was stolen reaches the nisab together with its conditions, as has been set out in detail under the first pillar.
They also agreed that the fixed penalty is not applied to one who steals the wealth of the unbeliever at war, for his wealth is legally without protection, whether the thief be a Muslim or a dhimmi.
The jurists have, however, differed over the Muslim or dhimmi who steals from the beneficiary of a covenant (mu'ahad) or the beneficiary of a safe-conduct (musta'min): is his hand cut off, or not?
The Hanafis, the Shafi'is according to the more apparent view, and Ashhab among the Malikis hold that he is not amputated for it (Rawdat at-Talibin 6/579; see adh-Dhakhira 3/447, Tahbir al-Mukhtasar 5/385).
Imam al-Kasani, may Allah have mercy on him, said: as for the wealth of the unbeliever at war holding a safe-conduct in the abode of Islam, there is no amputation for it by juristic preference (istihsan), while analogy would require amputation.
The way of analogy: he stole legally protected wealth, for the unbeliever at war acquired protection through the safe-conduct, in the same rank as the dhimmi; this is why his wealth is guaranteed against destruction, like the dhimmi's wealth.
The way of juristic preference: this wealth carries a doubt of free disposal, for the unbeliever at war under safe-conduct belongs to the people of the abode of war; he entered the abode of Islam only to settle some of his needs and then return shortly. His belonging to the people of the abode of war breeds a doubt of free disposal over his wealth; for this reason it likewise bred a doubt of free disposal over his blood, so that no believer is killed in retaliation for killing him. His wealth was indeed lawful by origin, and protection is established only by an accidental safe-conduct on the verge of disappearing; upon its disappearance it appears that the protection was not according to the customary original rule, for every accident superimposed upon a principle, once removed, is annexed to original non-existence, as though it had never been: the protection is therefore treated as never established. It is otherwise with the dhimmi: belonging to the people of the abode of Islam, he acquired protection through a perpetual covenant, and his blood and wealth are protected by an absolute protection carrying no doubt of free disposal. It is likewise otherwise with the guarantee of wealth: doubt does not prevent the obligation of guaranteeing wealth, for it is a right of a human being, and the rights of human beings are not dropped by doubts (Bada'i' al-Sana'i' 7/71; see al-Jawhara an-Nayyira 5/384).
The Shafi'is, in one view, hold that he is amputated if amputation was stipulated against him in the covenant, otherwise not (Rawdat at-Talibin 6/579).
The Malikis, the Shafi'is in one view, and the Hanbalis hold that the Muslim is amputated for stealing the wealth of the beneficiary of a covenant: he stole legally protected wealth from an equivalent place of safekeeping, so his amputation is due, like the thief of a dhimmi's wealth (al-Ifsah 2/285; see 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 and 245).
The question has already been set out under the first pillar.
The jurists agreed that it is required, for theft to be realized, that the thief take the stolen object in a manner of secrecy and concealment: if he snatches the wealth away, plunders it or stealthily withdraws it, he is not a thief and is not amputated, according to them all, because of the hadith of Jabir ibn Abdullah (may Allah be pleased with them both): the Messenger of Allah, peace and blessings of Allah be upon him, said:
"There is no amputation for the plunderer; whoever plunders openly displayed booty is not one of us." And he said: "There is no amputation for the betrayer of trust."
Authentic hadith, reported by Abu Dawud (4391 and 4392), an-Nasa'i (4973 and 4974) and Ahmad (15112)
In one version: "Nor for the stealthy snatcher" (Authentic hadith, reported by Abu Dawud 4393).
And in the wording of Ibn Hibban:
"There is no amputation for the plunderer, nor the stealthy snatcher, nor the betrayer of trust."
Reported by Ibn Hibban in his Sahih (4457)
On this the scholars expressed consensus that there is no amputation for the betrayer of trust, the stealthy snatcher, the plunderer or the usurper: the obligation is the amputation of the thief, and this person is not a thief; and stealthy withdrawal is a species of snatching and plundering, in which concealment occurs only at the beginning of the act, unlike the thief (Bada'i' al-Sana'i' 7/65; see al-Bahr al-Raiq 5/60, Rawdat at-Talibin 6/567, Nihayat al-Muhtaj 7/507).
Imam Ibn al-Mundhir, may Allah have mercy on him, said: they agreed that there is no amputation for the stealthy snatcher; Iyas ibn Mu'awiya alone said: I would amputate him. And they agreed that there is no amputation for the betrayer of trust (al-Ijma' 618 and 619).
Ibn Abd al-Barr, may Allah have mercy on him, said: the people of knowledge agreed that stealthy withdrawal carries no amputation, nor does betrayal of trust; I know of no one who made amputation obligatory for stealthy withdrawal except Iyas ibn Mu'awiya, while the rest of the people of knowledge see no amputation in it (al-Istidhkar 7/565).
He also said: they agreed that the usurper and the coercive overpowerer are not amputated, unless he is a highway robber brandishing weapons against the Muslims and terrorizing the roads: his ruling is that which has been set out above concerning the brigands (al-Istidhkar 7/566).
He also said: the scholars of the Muslims agreed that there is no amputation for the betrayer of trust, and this suffices (al-Istidhkar 7/568).
Imam Ibn Rushd, may Allah have mercy on him, said: they agreed that there is no amputation for betrayal of trust or for stealthy withdrawal, except Iyas ibn Mu'awiya, who made amputation obligatory for stealthy withdrawal. Likewise they agreed that there is no amputation for the usurper or the coercive overpowerer, unless he is a highway robber brandishing weapons against the Muslims and terrorizing the road: his ruling is that of the brigand (Bidayat al-Mujtahid 2/334).
Imam Ibn al-Arabi the Maliki, may Allah have mercy on him, said: the community agreed that there is no amputation for the stealthy snatcher and the plunderer, because no place of safekeeping is violated in their case: since they violate no safekeeping, no one imposes amputation upon them (Ahkam al-Quran 2/111).
Imam Ibn Hubayra, may Allah have mercy on him, said: they agreed that the stealthy snatcher, the plunderer, the usurper and the betrayer of trust, for all the gravity of their offence and their sins, are not amputated (al-Ifsah 2/285).
Imam Ibn Hazm, may Allah have mercy on him, said: concerning the stealthy snatcher there are only two cases. Either he withdrew the goods openly, without concealing himself from people: here there is no disagreement that he is not a thief and is not amputated. Or he did so concealed from all who were present: here there is no disagreement between us and our opponents present that he is a thief and that amputation is due upon him (al-Muhalla 11/326).
Imam Ibn Qudama, may Allah have mercy on him, said: if he snatched or stealthily withdrew, he is not a thief and is not amputated according to anyone whose view we know, except Iyas ibn Mu'awiya, who said: "I amputate the stealthy snatcher, for he conceals himself in his taking, and he is therefore a thief"; the people of fiqh and of legal opinion among the scholars of the great cities are of the contrary view (al-Mughni 9/93).
The plunderer (al-muntahib) is the one who takes openly and by coercion, in a town or village (ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/351; see the hashiya of as-Sawi 10/303, al-Bahr al-Raiq 5/60).
The stealthy snatcher (al-mukhtalis) is the snatcher (al-mukhtaf): the one who seizes the wealth in the presence of its owner during his inattention and makes off quickly and openly, whether his approach was secret or open (al-Bahr al-Raiq 5/60; see Rawdat at-Talibin 6/576).
It is also said: one who seizes the wealth without resorting to force and who relies on flight. Then it was said that this occurs during the owner's inattention, and it was said: before his very eyes; this latter is the correct view (Tahrir Alfaz at-Tanbih, p. 327).
The difference between the plunderer and the snatcher: the plunderer relies on strength and overpowering force and takes the thing openly, with calm and assurance; the stealthy snatcher deliberately relies on flight: he takes the thing openly, but with speed and fear; as for theft, it is carried out in a manner of concealment (Rawdat at-Talibin 6/567; see the hashiya of al-Labadi, p. 402).
Betrayal of trust (khayana) consists in taking what is in one's own hand by way of trust, like the man whom another admits into his house as a guest or for a need and who robs him, or like the borrower, the depositary, the hired worker or the partner (al-Bahr al-Raiq 5/60; see al-Kafi of Ibn Abd al-Barr, p. 578).
The jurists of the four schools agreed that it is required of the stolen property, for hands to be cut off, that it reach the nisab; as for a trifling thing, there is no amputation for it according to them.
The jurists have, however, differed over the amount of the nisab for which hands are cut off: is it a quarter dinar or its equivalent, namely three dirhams, or ten dirhams?
The Malikis and the Hanbalis according to the position of their school hold that the minimal nisab for theft is a quarter dinar or more of pure gold, or three dirhams of silver, because of the hadith of Aisha (may Allah be pleased with her) reporting from the Messenger of Allah, peace and blessings of Allah be upon him, the saying:
"The hand of the thief is not cut off except for a quarter dinar or more."
Reported by Muslim (1684)
And from her, attributed upward to the Prophet:
"Cut for a quarter dinar, and do not cut for anything below it." A quarter dinar was then worth three dirhams, and the dinar twelve dirhams.
Weak hadith, reported by Imam Ahmad (24559) and al-Bayhaqi in as-Sunan al-Kubra (16941)
If one steals other than gold and silver, such as trade goods and the like, it is valued by what they are worth, because of the hadith of Ibn Umar (may Allah be pleased with them both) that the Prophet, peace and blessings of Allah be upon him, cut off the hand of a thief who had stolen a shield (turs) from the women's gallery, whose price was three dirhams (Authentic hadith, reported by Abu Dawud 4386 and an-Nasa'i 4909).
Ibn Umar (may Allah be pleased with them both) said:
"The Prophet, peace and blessings of Allah be upon him, ordered amputation for a shield (mijann) whose price was three dirhams."
Reported by al-Bukhari (6795) and Muslim (1686)
This establishes that dirhams are taken into account when they reach this amount; and silver is a fundamental form of wealth taken into account in prices and in the valuation of destroyed property: its theft must therefore be assessed by a quantity intrinsic to it and not assessed by anything other than itself, its principle being gold.
Valuation takes place at the moment of the property's removal from its place of safekeeping, for that is the moment of obligation, the cause being present in it (al-Ishraf ila Naka't Masa'il al-Khilaf 4/452 and 454, no. 1759; see al-Qawanin al-Fiqhiyya, p. 236, at-Taj wa-l-Iklil 5/345 and 346, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/335 and 336, Tahbir 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 and 237, Manar as-Sabil 3/336 and 337).
The Hanbalis, in one report, hold that the principle is that trade goods are valued only in dirhams, because valuation occurred in dirhams and not in gold: what is worth three dirhams entails amputation even without reaching a quarter dinar, and what is not worth three dirhams does not entail it even if it reaches a quarter dinar.
It is reported from Imam Ahmad that if one steals, other than gold and silver, something worth a quarter dinar or three dirhams, one is amputated; on this basis, non-monetary property is valued at the lesser of the two: a quarter dinar or three dirhams (al-Mughni 9/94; see al-Kafi 4/175, Sharh az-Zarkashi 3/122, al-Mubdi' 9/120).
The Shafi'is hold that the minimal nisab of theft, below which one is not amputated, is a quarter dinar of pure gold, because of the hadith of Aisha (may Allah be pleased with her) reporting from the Messenger of Allah, peace and blessings of Allah be upon him:
"The hand of the thief is not cut off except for a quarter dinar or more."
Reported by Muslim (1684)
If one steals other than gold, it is valued against gold, for gold is the principle: even if he steals dirhams or something else, valuation is in gold; if its value in dinars is not known, it is valued in dirhams, and these are then valued in dinars; if there are no dinars in the place of the theft, one moves to the nearest place that has them (al-Bayan 12/436 and 437; see Rawdat at-Talibin 6/541 and 542, an-Najm al-Wahhaj 9/150 and 151, Mughni al-Muhtaj 5/459, Nihayat al-Muhtaj 7/508).
The Hanafis hold that the nisab of theft is ten dirhams, or property worth ten dirhams, taken in a single instance; whether the ten dirhams belong to one owner or to a group, provided they are in a single place of safekeeping free of any doubt, amputation is due, because of what Abdullah ibn Mas'ud (may Allah be pleased with him) reported from the Prophet, peace and blessings of Allah be upon him:
"There is no amputation except from ten dirhams."
Reported by al-Tabarani in al-Awsat (7142); al-Haythami said in Majma' al-Zawa'id (6/422): reported by al-Tabarani in al-Awsat, and its chain is weak
And Ibn Abbas (may Allah be pleased with them both) said:
"The Messenger of Allah, peace and blessings of Allah be upon him, cut off the hand of a man for a shield (mijann) worth a dinar or ten dirhams."
Anomalous (shadh) hadith, reported by Abu Dawud (4389)
The Shafi'is and the Hanbalis stated it expressly, and it is what the words of the Hanafis and the Malikis imply: among the conditions for cutting off the thief's hand is that he know the prohibition of theft. For absence of this knowledge is a doubt, and the fixed penalty is averted by doubt as far as possible, according to what is reported from 'Umar, 'Uthman and 'Ali (may Allah be pleased with them):
"No fixed penalty except upon one who knows it."
Saying reported from 'Umar, 'Uthman and 'Ali (Mughni al-Muhtaj 5/485; see Kashshaf al-Qina' 6/165, Sharh Muntaha al-Iradat 6/233)
However, the claim of ignorance of the prohibition is not accepted from one who grew up among the Muslims. An exhaustive explanation of this point has already been given in the book of fornication, under the third condition.
The jurists required that the person stolen from hold a hand over the property, by being its owner or the owner's deputy, such as his guardian or his agent, for his hand counts as the owner's.
The jurists have, however, differed over the case where the hand of the person stolen from over the stolen property is not valid, as when one steals from a thief or from a usurper: is the thief's hand cut off, or not?
The Hanafis distinguish between the thief who steals from a thief and the thief who steals from a usurper.
On stealing from a thief, they say: if another thief steals from a thief after his right hand has been cut off, or before, he is not amputated, for the first thief's hand is not a valid hand: it is neither the hand of an owner, nor of a trustee, nor of a guarantor; it is a lost, non-guarding hand. Taking from his possession is therefore like taking from the public road; nor is one amputated upon the owner's claim, for the thief held no valid hand over the property.
But if amputation was averted from the thief and another thief then stole it from him, that thief is amputated: once amputation was averted, the guarantee attached to his taking, and the hand of a guarantor is a valid hand, whose removal entails amputation; the first thief becomes like the usurper.
It is also said: if he stole before the first thief's amputation, or after it was averted on account of a doubt, then both he and the owner of the property may demand amputation, for the loss of legal valuation is required only by the amputation, which did not occur; but after the amputation, there is no amputation at all.
As for stealing from a usurper, the hand is cut off, for his hand is a hand of guarantee, hence a valid hand (al-Mabsut 9/145; see al-'Inaya 7/384, Sharh Fath al-Qadir 5/404, Tabayin al-Haqa'iq 3/229, al-Bahr al-Raiq 5/69, al-Jawhara an-Nayyira 5/411, ad-Durr al-Mukhtar 4/108).
The Malikis and the Shafi'is, in one view, hold that if one steals from a thief, or from a trustee and the like, one is amputated: he stole a nisab in which he has no doubt, from an equivalent place of safekeeping, so amputation is due upon him as upon the first thief. The Malikis add: the word of the second thief, claiming that he stole it in order to return it to its owner, is not accepted (the hashiya of ad-Dasuqi with ash-Sharh al-Kabir 6/339; see al-Hawi al-Kabir 13/312, al-Bayan 12/477 and 478).
The Shafi'is according to the position of their school, and the Hanbalis, hold that if the thief steals a nisab from an equivalent place of safekeeping, stores it in a place of safekeeping of his own, and another thief then steals it from that place: the first thief has already incurred amputation for his theft; as for the second thief, the first thief may neither demand the restitution of the nisab from him nor his amputation, for he has no right to it; the owner of the nisab may demand its restitution from the second thief, but amputation is not due upon him, for he did not steal it from its owner or his deputy, and because the owner of the nisab did not approve this place as a safekeeping for his property.
If a man seizes a nisab from another by usurpation, stores it in an equivalent place of safekeeping, and a thief steals it from that place: the usurper is not amputated, and amputation is not due upon the thief of the usurper either, for he did not steal it from its owner or his deputy (al-Hawi al-Kabir 13/312; see al-Bayan 12/477 and 478, Kashshaf al-Qina' 6/165, Sharh Muntaha al-Iradat 6/233, Matalib Uli an-Nuha 6/229).
The minister Ibn Hubayra, may Allah have mercy on him, said: they differed over the case of one who steals the stolen object from the thief, or the usurped object from the usurper. Abu Hanifa said: the thief of the usurped object is amputated; the thief of the stolen object is not, if the first thief has already been amputated for it; if he has not, the second one is amputated. Malik said: both of them are amputated. Al-Shafi'i and Ahmad said: amputation is due upon neither of them, I mean: neither the thief of the thief nor the usurper of the usurper (al-Ifsah 2/280).
The same applies to the cheetah and the dog: the cheetah belongs to the species of hunting beasts and the dog is a hunter; since amputation is not due for stealing the hunted animal, it is all the more not due for stealing the hunter.
The scholars, may Allah have mercy on them, differ plainly over the monetary status of the dog and the lawfulness of its sale; the apparent sense of the Messenger of Allah's prohibition of the price of the dog breeds a doubt (al-Mabsut 9/154 and 155; see Bada'i' al-Sana'i' 7/68, al-Hidaya 2/120, al-Jawhara an-Nayyira 5/387).
The majority of jurists, namely the Malikis, the Shafi'is and Abu Yusuf among the Hanafis, hold that one is amputated for stealing birds: the general purport of the Book and the Sunna establishes that this is a kind of hoardable wealth, so amputation is due for stealing it as for the other kinds (adh-Dhakhira 12/155; see al-Hawi al-Kabir 13/276, al-Mabsut 9/154 and 155, Bada'i' al-Sana'i' 7/68, al-Hidaya 2/120, al-Jawhara an-Nayyira 5/387).
The Malikis qualify this: there is no amputation for one who steals a bird worth three dirhams on account of its song, like the nightingale and the sparrow, for that is a benefit not sanctioned by the Law. Yes, if its meat, after slaughter, is worth the nisab, one is amputated for that; likewise the pigeon renowned for its swiftness of return (Sharh Mukhtasar Khalil 8/95; see ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/336 and 338, Tahbir al-Mukhtasar 5/366).
The jurists required of the stolen property that it be legally valuable property. Whoever steals what has no value in the Law, such as khamr, pork, carrion, instruments of amusement, the cross, the idol or forbidden books, is not amputated, by agreement of the four schools, whether the khamr belongs to a Muslim or to a dhimmi: it is not wealth for us; even if it is wealth in their view, it is not wealth for us; and what is wealth in one respect and not wealth in another has, at the very least, the status of a doubt averting the fixed penalty from its thief, like one who has intercourse with a slavegirl shared between himself and another. Moreover, the Muslim is punishable for possessing khamr and drinking it, and is commanded to turn it into vinegar or pour it away: whoever takes it has only removed a hand from what he was already commanded to remove, so he is not amputated.
He is nevertheless liable for its value to the dhimmi according to the Hanafis and the Malikis. He is not liable for its value to the dhimmi according to the Shafi'is and the Hanbalis, for liability and amputation apply only to what may lawfully be sold (Ahkam al-Quran 4/77 and 78; see al-Mabsut 9/189, al-Mudawwana al-Kubra 16/278, Sharh Mukhtasar Khalil 8/96, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/340, Tahbir al-Mukhtasar 5/638, al-Umm 6/147, Rawdat at-Talibin 6/547, al-Mughni 9/114 and 115, Sharh az-Zarkashi 3/131).
Imam Ibn Qudama, may Allah have mercy on him, said: question. He said: "One is not amputated for a forbidden thing or an instrument of amusement." That is: one is not amputated for stealing a forbidden thing such as khamr, pork, carrion and the like, whether one steals it from a Muslim or a dhimmi. This is the view of al-Shafi'i, Abu Thawr and the partisans of personal opinion. It is transmitted from 'Ata' that the thief of a dhimmi's khamr is amputated even if he is a Muslim, for it is wealth in their view, similar to stealing their dirhams.
Our argument: it is a forbidden substance, so one is not amputated for stealing it, as with pork; and what does not entail amputation when stolen from a Muslim does not entail it when stolen from a dhimmi, like carrion and blood. Their argument is nullified by the case of pork, and it carries no weight: the reference is the ruling of Islam, which applies to them, not their own rulings. Such is likewise the disagreement with him concerning the cross when its value, once assembled, reaches the nisab.
As for instruments of amusement, like the lute (tunbur), the flute (mizmar) and the pipe (shabbaba), there is no amputation for them even if their value, itemized, reaches the nisab; this is the view of Abu Hanifa. The companions of al-Shafi'i said: if its value after the removal of its assembly reaches the nisab, amputation applies, otherwise not, for he stole what is worth a nisab, in which he has no doubt, from an equivalent place of safekeeping, and he belongs to those subject to amputation: it is therefore due, as if it were broken gold.
Our argument: it is, by consensus, an instrument of disobedience, so one is not amputated for stealing it, as with khamr; and he has a right to take it in order to break it, which constitutes a doubt preventing amputation, like his entitlement to his child's wealth. If the instrument carries a gold or silver mounting reaching the nisab, there is likewise no amputation according to the analogical extension of Abu Bakr's view, for it is attached to what carries no amputation, like the wood and the strings. The Judge said: amputation applies, and this is the view of al-Shafi'i, for he stole a nisab from its place of safekeeping, like an unattached item.
Section: if he steals a cross of gold or silver reaching the nisab as a single piece, the Judge said: no amputation, and this is the view of Abu Hanifa; Abu al-Khattab said: its thief is amputated, and this is the view of al-Shafi'i. The argument of the two schools has preceded. The difference between this question and the previous one is that in the previous one he can break it so that no value reaching the nisab remains, whereas here, breaking the gold and silver in any manner whatsoever does not bring its value below the nisab; and because in gold and silver the substance prevails over the forbidden craftsmanship, the workmanship being swallowed up relative to the value of their substance; other materials are the reverse: the workmanship prevails, so that the seller sells the forbidden craftsmanship, and the case resembles the vessel.
If he steals a vessel of gold or silver whose value, when broken, reaches the nisab, he is amputated, for its prohibition is not a matter of consensus, and its value, apart from the disputed workmanship, reaches the nisab. If he steals a vessel prepared for carrying and holding khamr, amputation applies, for the vessel is not forbidden in itself: it becomes forbidden only through his intention and purpose, as if he stole a knife prepared for slaughtering pigs or a sword he prepares for highway robbery.
If he steals a vessel containing khamr reaching the nisab, Abu al-Khattab said: he is amputated, and this is the view of al-Shafi'i, for he stole a nisab from an equivalent place of safekeeping in which he has no doubt; others of our companions said: he is not amputated, for the vessel follows what carries no amputation, as if he stole something shared between himself and another. Abu Ishaq ibn Shaqila said: likewise, if he steals a water-skin or a vessel containing water, there is no amputation.
If he steals a cloth at whose corner a dinar is tied, and he knew of it, he is amputated; if he did not know of it, there is no amputation, for he did not intend to steal it: the case resembles a dinar that caught onto his garment. Al-Shafi'i said: he is amputated, for he stole a nisab, as if he stole something whose value he did not know reached the nisab. The difference between the two is that here he knew the stolen object and intended its theft, unlike the dinar: he did not want it and did not intend to take it; he is therefore not held answerable for it through the imposition of the penalty upon him (al-Mughni 9/114 and 115; see Sharh az-Zarkashi 3/131).
The principle in this is that, since it is established by the agreement of the jurists among the early generations and those after them that amputation is obligatory only for an amount below which it is not obligatory, and since the way such amounts are established is revealed specification or consensus, no revealed specification being established below ten and consensus being established for ten, we affirm ten and do not affirm what is below it, for lack of revealed specification and consensus concerning it.
It is required that the value of the stolen property be ten from the moment of the theft to the moment of the amputation; if the price falls in the interval, there is no amputation.
And if the property is stolen in one town and the parties litigate before a judge in another town, the value of the stolen property must reach the nisab in both towns together (Ahkam al-Quran 4/64 and 65; see al-Ikhtiyar 4/123, al-Jawhara an-Nayyira 5/381 and 383, al-Lubab 2/321).
The place of safekeeping (hirz) is the place where the stolen property is secured: a house, a shop, the back of a riding animal or a ship, among the places where people customarily keep their wealth; this may vary according to people's customs (al-Qawanin al-Fiqhiyya, p. 236).
The jurists of the four schools agreed that it is required of the stolen property, for the fixed penalty to be applied to the thief, that he stole it from a place of safekeeping, because of the hadith of 'Amr ibn Shu'ayb, from his father, from his grandfather:
A man of Muzayna came to the Messenger of Allah, peace and blessings of Allah be upon him, and said: "Messenger of Allah, what is your view concerning the beast pasturing in the mountain?" He replied: "It and its like, together with exemplary punishment. There is no amputation for any livestock, except for what the night enclosure has sheltered and that reaches the price of a shield (mijann): therein lies amputation of the hand; what does not reach the price of the shield entails double compensation and exemplary lashes." He said: "Messenger of Allah, what is your view concerning the fruit still hanging?" He replied: "It and its like with it, together with exemplary punishment. There is no amputation for any hanging fruit, except for what the drying yard has sheltered: what is taken from the drying yard and reaches the price of the shield entails amputation; what does not reach the price of the shield entails double compensation and exemplary lashes."
Good (hasan) hadith, reported by Abu Dawud (1710), at-Tirmidhi (1289), an-Nasa'i (4959), Ibn Majah (2596) and Ahmad (6683)
The Prophet thus waived amputation for livestock except what the night enclosure, the place where the livestock spend the night, sheltered; and he waived it for hanging fruit except what the drying yard sheltered. There is no difference between the two situations except that the thing is secured in one of the two places and not in the other: this establishes that safekeeping is a condition for the obligation of amputation.
And because the pillar of theft is the taking in a manner of concealment, whereas taking outside a place of safekeeping requires no concealment: the pillar of theft is not realized. And because amputation was prescribed to safeguard wealth for its owners by cutting off the covetousness of thieves from people's wealth; yet covetousness inclines only to what has standing in hearts, and what is not secured has none in hearts as a rule: covetousness does not incline to it, and there is no need to safeguard it through amputation. On this basis there is no amputation below the nisab, nor for what is not legally valuable property capable of being stored (Bada'i' al-Sana'i' 7/73; see al-Jawhara an-Nayyira 5/384, al-Hawi al-Kabir 13/280, al-Muhadhdhab 2/277, al-Bayan 12/444).
The Maliki and Shafi'i jurists stated it expressly, and it is what the words of the Hanafis and the Hanbalis imply: it is required, for the amputation of the thief's hand, that he intended the theft, and that what he took is not his: it is property owned by another, which he took without the knowledge and will of its owner. There is no amputation for one who takes property believing it to be freely disposable or abandoned (al-Qawanin al-Fiqhiyya, p. 236; see al-Bayan 12/434, Kashshaf al-Qina' 6/165).
The generality of jurists, Hanafis, Malikis and Shafi'is, with details of their own, as well as the Hanbalis, expressly laid down among the conditions for cutting off the thief's hand that he not be driven to theft by hunger.
Ibn Juzayy, may Allah have mercy on him, said: that he not be driven to theft by hunger (al-Qawanin al-Fiqhiyya, p. 235; see Sharh az-Zarqani 4/192).
The Hanafis say: there is no amputation under necessity, nor in the year of scarcity, that is, the time of drought, for necessity permits taking from another's wealth according to the need, which prevents the obligation of amputation; and according to what is reported from Makhul, the Prophet, peace and blessings of Allah be upon him, said:
"No amputation in a famine for one who is driven by need."
Cited in al-Mabsut (9/140)
It is reported from al-Hasan, from a man:
"I saw two men bound, and some meat; I went with them to 'Umar (may Allah be pleased with him). The owner of the meat said: we had a she-camel ten months pregnant that we awaited as one awaits spring, and I found these two men had slaughtered it. 'Umar said: would two she-camels ten months pregnant and far gone satisfy you in place of your she-camel? For we do not amputate for the date-cluster nor in the year of scarcity. And that was in the year of scarcity."
Cited in al-Mabsut (9/140)
The she-camel pregnant of ten months is one that has completed ten months and whose delivery is near: she is the most precious thing her owners have, awaiting abundance and plenty from her milk as one awaits spring.
As for his words "we do not amputate for the date-cluster", some transmit "for the meat"; the better known version is "date-cluster", meaning the bunch of dates; the sense is: no amputation in the year of scarcity, because of necessity and famine (al-Mabsut 9/140; see Sharh Fath al-Qadir 5/367, al-Bahr al-Raiq 5/58).
As for the Shafi'is, they say: if a thief steals food in the year of famine, one considers: if the food exists and is merely expensive, amputation is due upon him, for when it exists no one may take it without its owner's permission: it is like food outside the famine.
And if the food does not exist, there is no amputation for one who steals it in order to eat it, according to what is reported from 'Umar (may Allah be pleased with him): "No amputation in the year of famine"; and it is reported from him: "No amputation in the year of scarcity", the year of drought being called the year of scarcity.
It is reported from Marwan that a thief was brought to him and he did not amputate him, saying: "I see him as driven to it by need." And because one driven by necessity to another's food may take it and fight its owner: this thief was driven to it by need, so he was not amputated for his theft (al-Bayan 12/480).
The shaykh Zakariyya al-Ansari, may Allah have mercy on him, said: one is amputated for food, that is, for stealing it, in the time of famine if it is found, even rare and at a high price, and he was able to obtain it; but if it became scarce, that is, of scant availability, and he could not obtain it, he is not amputated, for he is like one driven by necessity; and it is in this sense that what is reported from 'Umar (may Allah be pleased with him) is to be understood: "No amputation in the year of famine", whether he took the amount of his need or more, for he is permitted to violate the safekeeping in order to preserve his life; al-Ruyani stated this expressly (Asna al-Matalib 4/146).
Imam Ibn Qudama, may Allah have mercy on him, said: Ahmad said: no amputation in famine, meaning that the needy person who steals what he eats is not amputated, for he is like one driven by necessity.
Al-Jawzajani reported from 'Umar that he said: "No amputation in a year of scarcity." He said: I asked Ahmad about it, saying: do you hold it? He said: by my life, I shall not amputate him when need has driven him to it and the people are in hardship and famine. The view of al-Awza'i is similar. This applies to one who cannot find food to buy, or cannot find wherewithal to buy it: he has a doubt in taking what he eats, or what he buys his food with. It is reported from 'Umar (may Allah be pleased with him) that the servants of Hatib ibn Abi Balta' slaughtered a she-camel belonging to a man of Muzayna; 'Umar ordered their amputation, then said to Hatib: I see that you starve them, and he averted amputation from them when he supposed that he starved them.
As for one who finds what he eats, or finds wherewithal to buy and the thing to buy, amputation is due upon him even at the high price; this was reported by the Judge, and it is the view of al-Shafi'i (al-Mughni 9/118; see al-Kafi 4/181).
Imam Ibn al-Qayyim, may Allah have mercy on him, said: the third example: 'Umar ibn al-Khattab (may Allah be pleased with him) waived amputation for the thief in the year of famine. As-Sa'di said: Harun ibn Isma'il al-Khazzaz reported to us, from 'Ali ibn al-Mubarak, from Yahya ibn Abi Kathir, who reported to him from Hassan ibn Zahir, that Ibn Hudayr reported to him from 'Umar the saying:
"The hand is not cut off for a date-cluster, nor in a year of scarcity."
Cited by Ibn al-Qayyim in I'lam al-Muwaqqi'in (3/10 and 12)
As-Sa'di said: I asked Ahmad ibn Hanbal about this hadith; he said: the date-cluster is the palm tree, and the year of scarcity is the famine. I said to Ahmad: do you hold it? He said: by my life, yes. I said: if he steals in a famine, you will not amputate him? He said: no, when need has driven him to it and the people are in famine and hardship.
As-Sa'di said: this is on the pattern of 'Umar's judgment concerning the servants of Hatib. Abu an-Nu'man 'Arim reported to us, from Hammad ibn Salama, from Hisham ibn 'Urwa, from his father, from Ibn Hatib:
Servants of Hatib ibn Abi Balta' stole a she-camel belonging to a man of Muzayna. They were brought to 'Umar and confessed. He sent for 'Abd ar-Rahman ibn Hatib, who came, and he said to him: the servants of Hatib have stolen the she-camel of a man of Muzayna and have confessed against themselves. 'Umar said: "Kathir ibn as-Salt, go and cut off their hands." As they were being led away, 'Umar sent them back, then 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 has forbidden him it would be lawful for him, I would cut off their hands. By Allah, if I do not do it, I shall fine you a fine that will pain you." Then he said: "Man of Muzayna, for how much was your she-camel wanted from you?" He said: "For four hundred." 'Umar said: "Go and give him eight hundred."
Reported by Imam Malik in al-Muwatta (2905)
Ahmad adopted 'Umar's position on both points together, in the questions of Isma'il ibn Sa'id al-Shalanji which as-Sa'di explained in a book he called al-Mutarjam. He said: I asked Ahmad ibn Hanbal about the man who carries off fruit from its husks; he said: it carries twice the price and exemplary beating. And he said: everyone from whom we avert the fixed penalty or retaliation, we double the compensation upon him.
Al-Awza'i concurred with Ahmad on the waiver of amputation in famine. And this is pure analogy and what the principles of the Law require: when the year is a year of famine and hardship, need and necessity overwhelm the people, and the thief is scarcely ever free of a necessity driving him to what sustains his fainting breath. It is obligatory upon the owner of the wealth to furnish it to him, either for a price or gratis, according to the difference of opinion on that; the correct view is that it is obligatory to furnish it gratis, because of the obligation of mutual aid and of reviving souls when one has the capacity to do so, and of preferring others with one's surplus in the needy person's necessity. This is a strong doubt averting amputation from the needy, stronger than many of the doubts cited by many jurists.
Abu Yusuf said: he is amputated. His argument: the marriage existing at the time of the theft prevents the obligation of amputation only by consideration of doubt, namely the doubt of absence of safekeeping or the doubt of ownership; were the marriage arising afterwards to be considered as preventive, that would be to uphold a doubt, and doubts are discarded in the chapter of fixed penalties (Bada'i' al-Sana'i' 7/75 and 76; see Tabayin al-Haqa'iq 3/220, al-Jawhara an-Nayyira 5/397 and 398, al-Lubab 2/328).
The jurists required, for the obligation of cutting off the thief's hand, that he have no doubt of ownership or entitlement in the stolen property. From this condition follows the ruling on one who steals from his partner's wealth, from a waqf, from the public treasury of the Muslims, or who takes his due from one indebted to him, and other cases. The explanation follows:
The jurists differed over the ruling of the partner who steals from the partnership's wealth: is he amputated, or not? The Hanafis, the Shafi'is according to the more apparent view, and the Hanbalis hold that the partner is not amputated when he steals from wealth in which he holds a share, however small his portion, such as wealth held jointly between him and his partner: he has a doubt in every part of it, for there is no part that is not held in common between the two of them; the wealth is not secured against him; and if the father is not amputated for stealing his child's wealth because he has a doubt in it, then all the more is he not amputated for stealing from his partner's wealth (al-Jawhara an-Nayyira 5/396; see al-Lubab 2/328, al-Bayan 12/471 and 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, contrary to the more apparent view, hold that he is amputated, for he has no doubt in his partner's wealth (al-Bayan 12/471 and 472; see an-Najm al-Wahhaj 9/158, Mughni al-Muhtaj 5/465).
The Malikis hold that among the conditions of amputation for stolen property is that it be stolen from one whose ownership is complete, with no ownership of the thief in it and no strong doubt in it. Accordingly: the partner who steals from partnership wealth not withheld from him, his hand ranging freely together with his partner's, is not amputated.
The partner is not amputated for stealing from the partnership's wealth except under two conditions. The first: that the partner withheld the partnership wealth from the thief if the latter had no power of disposal over it, by the two of them depositing it under a third party's hand, or its being in the hand of other than the thief of the two, by way of preservation and securing; otherwise it is as though not withheld; or that the two lock it up and deposit the keys with a third party; and depositing the keys with one of the two, when this is by way of preservation and securing, counts as depositing them with a third party.
The second: that he steal, above his right, a nisab from the totality of the partnership's wealth, both what was stolen and what was not, if it is fungible; thus, if the total wealth is twelve dirhams and he steals nine of them, you know that his share of the wealth is six if the two hold it in halves: he has taken, above his right, from the totality of the wealth three dirhams, which is a nisab. This is the text transmitted from Malik, and the apparent sense of the Mudawwana. Ashhab, Ibn al-Majashun and Asbagh said: if he steals six dirhams from the totality of the wealth, he is amputated.
If the property is valued by appraisal, what counts is that there be, in what was stolen, a nisab above his right from what was stolen, not from the totality of the wealth. If the partnership concerns trade goods, such as books whose total is worth twelve, and he steals one particular book worth six, he is amputated, for his right is in half of it only: he has stolen, above his right, a nisab of it.
The difference between the fungible and the appraised, whereby they required for the fungible that the stolen nisab exceed his right in the whole of the shared wealth, stolen and unstolen, and for the appraised that the stolen nisab exceed his right in what was stolen only: the appraised, since one cannot take one's share of it except with the other's consent, because aims differ in appraised property, means that what he stole is partly his share and partly his companion's share, and the remainder likewise; whereas the fungible, since one may take one's share of it even if the other refuses, aims differing in it rarely, entails that what he took of it is necessarily shared between the two, and the remainder likewise.
Accordingly, if it was not withheld from him, or was withheld and he stole below his right, or above it but below a quarter dinar or three dirhams, he is not amputated (at-Taj wa-l-Iklil 5/350; see Sharh Mukhtasar Khalil 8/96 and 97, ash-Sharh al-Kabir with the hashiya of ad-Dasuqi 6/340 and 341, Tahbir al-Mukhtasar 5/369 and 370).
The difference between this doubt and the doubts they mention becomes clear to you: where is the doubt that the stolen property is quick to spoil, or that its origin is freely disposable like water; the doubt of a prior amputation; the doubt of a claim of ownership without proof; the doubt of the property's destruction inside the safekeeping place by eating or milking from the udder; the doubt of the decrease of its value inside the safekeeping place by slaughter or burning and then removal; and the other very weak doubts, next to this strong doubt? All the more so as he is authorized to contend with the owner of the wealth for the taking of what sustains his fainting breath.
In the year of famine, the needy and the driven-by-necessity multiply, and the self-sufficient among them cannot be distinguished from the one who steals without need; the one upon whom the penalty is due has become confounded with the one upon whom it is not: it is therefore averted. Yes, if it becomes plain that the thief has no need and is independent of theft, he is amputated (I'lam al-Muwaqqi'in 3/10 and 12).
The thief may be an ancestor of the person stolen from, or a descendant of the person stolen from; there may be another bond of kinship between them, or a bond of marriage. Each of these has its own ruling; the explanation follows:
The jurists of the four schools, Hanafis, Malikis, Shafi'is and Hanbalis, agreed that there is no amputation for the parent, however far ascending, who steals from his child's wealth, however far descending; the father and mother, or the grandfather and grandmother on the father's or mother's side, are all alike in this.
Imam Ibn Abd al-Barr, may Allah have mercy on him, said: the majority agreed that he is not amputated for what he steals from his child's wealth (al-Istidhkar 7/525).
Imam al-Mawardi, may Allah have mercy on him, said: there is no amputation for one who steals from the wealth of either of his parents, however far they ascend, among the fathers and mothers, grandfathers and grandmothers, nor from the wealth of any of his descendants, however far they descend, among the sons and daughters, sons of sons and sons of daughters; and this is the view of the majority of jurists (al-Hawi al-Kabir 13/347 and 348).
Imam Ibn Rushd, may Allah have mercy on him, said: their consensus is that he is not amputated for what he steals from his child's wealth (Bidayat al-Mujtahid 2/325).
Imam Ibn Hubayra, may Allah have mercy on him, said: they agreed that parents, however far they ascend, are not amputated for what they steal from their children's wealth (al-Ifsah 2/278).
Imam Ibn Qudama, may Allah have mercy on him, said: the parent is not amputated for stealing from his child's wealth, however far descending; the father and mother, the son and daughter, the grandfather and grandmother on the father's and mother's side are all alike in this; and it is the view of the generality of the people of knowledge, among them Malik, ath-Thawri, al-Shafi'i and the partisans of personal opinion (al-Mughni 9/116).
The jurists argued for this with the word of Allah the Most High:
« Do not say to them "uff" and do not repel them. »
Surah al-Isra, 23
Even addressing that word to them is forbidden: cutting off would therefore be graver still, and it is more rightful to avert it.
And with the saying of the Prophet (peace and blessings of Allah be upon him):
« You and your wealth belong to your father. »Authentic hadith, reported by Ibn Majah (2291) and Ibn Hibban in his Sahih (4262)
And with the saying of the Prophet (peace and blessings of Allah be upon him):
« The best of what a man eats is from his earning, and his child is part of his earning. »Authentic hadith, reported by Abu Dawud (3528), at-Tirmidhi (1298), an-Nasa'i (4449), Ibn Majah (2137), Ibn Hibban in his Sahih (2459) and Imam Ahmad in his Musnad (24087)
In another wording: « So eat from the earnings of your children. » It is not permissible to cut off a person's hand for taking what the Prophet (peace and blessings of Allah be upon him) ordered him to take, nor for taking what the Prophet (peace and blessings of Allah be upon him) made into wealth belonging to him.
And because fixed punishments are averted by latent claims (shubha), and the greatest of latent claims is a man's taking from wealth that the Law made his own and ordered him to take and consume (al-Jawhara an-Nayyira 5/397 and 398 ; see al-Ishraf ala Nukat Masa'il al-Khilaf 4/485 and 486, al-Hawi al-Kabir 13/347 and 348, al-Mughni 9/116).
The jurists differed regarding the descendant, the son and however far down the line, when he steals from the ascendant, the father and however far up the line: is his hand cut off for it or not?
The majority of jurists, the Hanafis, the Shafi'is and the Hanbalis in the relied-upon position of their school, are of the view that the son is not cut off, however far down, when he steals from his father, however far up. For each of the parent and the child constitutes a latent claim upon the other's wealth, because maintenance is obligatory upon it ; and because, through the existence of mutual belonging between them, each is treated as his own self: he is not cut off with respect to himself. And because his child is dearer and more precious to him than his wealth: the very meaning of the cutting is absent in him, and it falls away.
And because between them is a kinship that bars the acceptance of the testimony of either for the other: he is therefore not cut off for stealing his wealth, like the father. And because maintenance is obligatory from the father's wealth for his son, to preserve him: it is not permissible to destroy it in order to preserve wealth (al-Jawhara an-Nayyira 5/397 and 398 ; see al-Lubab 2/328, al-Umm 6/151, al-Hawi al-Kabir 13/347 and 349, al-Mughni 9/116, al-Kafi 4/179).
The Malikis, the Hanbalis in one view, Abu Thawr and Ibn al-Mundhir are of the view that he is cut off, because the son has no latent claim upon his father's wealth. The proof is that if he fornicated with his father's slavewoman, the fixed punishment would be applied to him (al-Istidhkar 7/559 ; see al-Ishraf ala Nukat Masa'il al-Khilaf 4/486, al-Ifsah 2/279, al-Mughni 9/116).
The jurists differed regarding relatives, such as brothers, paternal uncles and maternal uncles, that is, all kinship other than that of fathers and sons: if one of them steals from another, is the punishment of theft established upon him and his hand cut off, or not?
The majority of jurists, the Malikis, the Shafi'is and the Hanbalis, are of the view that theft of relatives from one another is not a latent claim that wards off the punishment from the thief: they are therefore cut off when some of them steal from others, whether they inherit from one another, are permanently unmarriageable kin or not, like strangers. For it is a kinship to which the rejection of testimony is not attached: the dropping of the cutting is therefore not attached to it either, like relatives who are not permanently unmarriageable (al-Ishraf ala Nukat Masa'il al-Khilaf 4/485 and 486 ; see al-Ifsah 2/278, al-Umm 6/151, al-Hawi al-Kabir 13/349, al-Mughni 9/117, al-Kafi 4/179).
The Hanafis are of the view that he is not cut off if he steals from an unmarriageable relative, such as the brother or the paternal uncle, meaning one such that, were one of them a man and the other a woman, it would not be permissible for him to marry her because of the kinship between them, according to the word of Allah the Most High:
« There is no blame upon you that you eat from your houses or your fathers' houses... » up to His words: « ...or a house whose keys you possess. »
Surah an-Nur, 61
Allah the Most High lifted the blame from the one who enters the house of brothers and paternal uncles and eats from it: the apparent meaning of this entails permissibility. And the apparent meaning, even if abandoned because of the establishment of proof, remains a latent claim. Do you not see that He coupled the houses of brothers and paternal uncles with the houses of fathers and sons, and that the ruling of what is coupled follows the ruling of what it is coupled to?
As for the relative whose marriage is not forbidden, the one who steals from him is cut off.
And if he steals from a person who became a relative through suckling, with no other kinship with him, Abu Hanifa and Muhammad (may Allah have mercy on them both) said: the one who steals from a person forbidden to him in marriage through suckling, whoever that may be, is cut off, for what suckling establishes is only the permanent prohibition of marriage, and it does not prevent the obligation of the cutting, as when he steals from the mother of his wife. This is why he is cut off for the sister through suckling.
Abu Yusuf said: if he steals from his mother through suckling, he is not cut off, because free access between the two of them is established by custom and usage: a person enters the dwelling of his suckling mother without permission, just as he enters the dwelling of his mother by blood, unlike the sister through suckling.
And if he steals from his father's wife, or his mother's husband, or his son's wife, or his wife's son, or her daughter, or her mother, it is examined: if he stole their wealth from the dwelling of the person to whom the thief is tied, among his father, his mother, his son and his wife, he is not cut off, without disagreement, for he is permitted to enter the dwelling of these persons: the dwelling is therefore not a secured place with respect to him.
And if he stole from another dwelling: if the two of them were in it, he is not cut off, by consensus. If each of them had a separate dwelling, there was disagreement concerning it: Abu Hanifa said that he is not cut off, because there is a latent claim in the secured place, for the right of mutual visits is established between him and his relative: the dwelling's belonging to other than his relative does not cut off the visits, and this begets a latent claim of permissibility of entry for the visit, so that the meaning of the secured place is impaired.
Abu Yusuf and Muhammad said: he is cut off if he steals from a dwelling other than his own, his father's or his son's, for what prevents the cutting is kinship, and there is no kinship between the thief and the victim: each of the two is a stranger to the other, which does not prevent the obligation of the cutting, as if he stole from any other stranger (Ahkam al-Quran 4/81 and 83 ; see al-Mabsut 9/151 and 152, Bada'i' al-Sana'i' 7/75, Tabyin al-Haqa'iq 3/220, al-Jawhara an-Nayyira 5/397 and 398, al-Lubab 2/328).