Q. In the Qur'an 5:38, it states: "As to the thief, male or female, cut off his or her hands: a punishment by way of example, from God, for their crime: and God is Exalted in power."
This is generally interpreted in the Muslim world that amputation is required in any instance of theft. What were the conditions that brought about such a harsh punishment, and how is it applicable in today's society?
A. One of the first things we know about the Qur'anic prescription of punishment is that the emphasis is not on the punishment itself, but rather on the aspect of prevention that knowledge of such harshness will have on would-be perpetrators. This is why multiple witnesses are required or absolute proof that transgression has occurred. This is why too, the jurists who were presumably cognizant of the spirit of the sentence established a minimum of value for which punishment could be imposed, and the conditions under which such theft occurs, etc. Now for the first part of your question as to what were the conditions that merited such legislation. In the Muslim society, wherein the Muslims are a brotherhood, one has the right to expect the maximum of security from others. One of the fundamental values of Islam is that the Muslim should respect the property of others, not coveting, or conspiring to obtain anything by illegal means. The exhortation to zakat and sadaqa also means that everyone is cared for, much the way it is in the modern welfare provisions of the U.S and most developed western nations. Under such a situation, one seeking to steal is indeed doing so solely out of greed.
It is obvious that the ayah cannot be taken literally, since its diction suggests otherwise. In the first place, since there is no value given for which such a penalty must be imposed. Therefore, under the Arab society of that time, either one was known and has not come down to us, since the jurists were not legal anthropologists or historians, or it was left up to the Muslims to come up with a value. In any case, some jurists ruled that the item stolen had to be worth 10 dirhams, others ruled for a quarter of a dinar. Regardless, such worth is useless to us today since inflation and other factors have made it only of historical note. Suffice it to say that the jurists knew that for such a harsh penalty, a value had to be deduced, much like in our society where we have "theft under $200.00, theft over $200.00," etc. Another thing was the circumstances for such theft, was the material secured with lock and key, or was it not? Was it in the open, almost inviting theft, or was it by fraud? The general take is that when the property has been secured with lock and key, and deliberate destruction of such a system of security occurred, then the penalty may be considered.
However, the ayah mentions that such amputation "is the result of what they have earned, as an exemplary punishment from Allah," showing again that such punishment may only be considered when:
(1) All the safeguards against theft are in place. This means the zakat and charity is established, that the people are aware of what will happen in case of theft, that there is no entrapment knowingly or unknowingly -- i.e. there is lock and key, etc.
(2) The perpetrator is mentally healthy.
(3) The perpetrator, being aware of all the rules, and in a place which had all the safeguards against theft, with access to places from where he could have obtained help, and where he did not fall into the category of deserving such help, and wherein the material stolen was not vital to his survival or deemed in a similar category, did with malice aforethought, and with covetousness in mind, commit the crime.
"An exemplary punishment from Allah" -- this is extremely important when considering the last part of your question -- for it shows the intent of the punishment is that the perpetrator be known, and others be made aware of the penalty for his offence. It should be noted that the Qadis have always been extremely wary of hasty imposition of this sentence, and have traditionally preferred other punishments on the perpetrator. Only when the state of repetition has reached such a degree that the criminal now seemingly commits theft as if in total disregard of the possible consequence, or only where such destruction and damage and malicious intent were evident, have the punishments been imposed.
In today's society it is problematic to impose such a sentence, for Islamic law has a time-space factor, and the penalty was the most extreme and functional at the time of revelation. I think the emphasis is on functionality, and not severity, since Islam seeks to downplay this aspect of correction. Is there something that is equivalent without the actual amputation in today's society? I think that society is not monolithic, and this has to be taken into account, which means that different societies may impose different criteria warranting imposition and execution. For example, there are tribal societies in the Middle East living almost the way they did hundreds of years ago. In such a situation, the original may well seem viable. In developed societies like Malaysia, I have seen the ultimate modern approach, where each citizen requires an I.D card, and where the color of such a card carries a symbolism. I think a brown card shows that the person has committed serious offences. I guess some such system takes care of amputation.
Do remember that amputation runs into several problems in today's society, which is ample proof against the immutability of this ruling. Can we reattach the amputated hand, seeing that amputation as prescribed has been done? If one says amputation means permanence, we cannot accept this since in the Prophet's day, this technology did not exist, and comparison is therefore impossible. What about computer and white collar fraud, wherein millions may be stolen and no physical harm done, no hardware broken, as opposed to the theft of $1000.00, the commission of which may have involved the blowing up of safe doors, physical harm to the guards, etc.? Are we to assume that the computer thief should not have his hand amputated although his crime was more detrimental? All these factors, in general, show that in today's society, with the understanding being western developed society, such punishment is not practical, nor did the Qur'an ever design this penalty to be immutable. Additionally, the situations under which it may exist are not present, that is the brotherhood, the welfare system at its ideal, and so on. The cutting of the hand is an extreme measure, and not to be taken as literal for every theft, which is evident from several ahadith. For example, in Bukhari, vol.8, number 786, it shows that the thief's hand was not cut off for something worth less than the price of a shield. And Allah knows best.
Posted September 15, 1999