Theft & Robbery: Specific References from the Shari'ah

Theft has been defined in the following terms:

“the act of taking a property stealthily from its owner or his deputy while the thief is subjected to the Laws of Islam and the stolen property has reached the nisab.[1]”

“a dishonest appropriation of property with an intention to permanently deprive the other of it.[2]”

“illicit usurpation of another’s property[3].

Thus, theft is the act of taking someone else’s property, without the owner’s consent and with the intention to permanently deprive the owner of the property. It encompasses crimes such as embezzlement, fraud, shoplifting, looting and mugging.

On the other hand, robbery generally refers to theft executed forcefully or with the threat to use force[4]. The victim of robbery has to be present, when the crime is committed, to perceive the force, threat or intimidation otherwise it will be simply treated as theft[5]. Hold-up and stick-up are the most prominent varieties of robbery.

Essentially, the world perceives the two crimes as distinct and different from each other with dissimilar penalties or punishments legislated for each crime. Theft is considered a minor crime (misdemeanor) compared to robbery. Robbery is a more aggravated crime (felony) attracting a much more complex and stricter punishment than theft. Possibly because it can lead to injury or death of the victim or third parties.

The main correlation between theft and robbery is the element of unlawful acquisition of someone else’s property rights. Majority, if not all, of contemporary legal systems regard theft as a misdemeanor while robbery a felony. Stealing (through theft or robbery) is impermissible (Haraam) according to the Qur’an, Sunnah and consensus of scholars (Ijmaa). The Shari’ah penal code (hudud[6]) considers both theft and robbery as serious crimes (against Allah).

The Qur’an explicitly prohibits theft (saraqq) and legislates the punishment thereto:

“[As for] the thief, the male and the female, amputate their hands (‘aidiyahuma’) in recompense for what they committed as a deterrent [punishment] from Allah. And Allah is Exalted in Might and Wise. But whoever repents after his wrongdoing and reforms, indeed, Allah will turn to him in forgiveness. Indeed, Allah is Forgiving and Merciful.[7]”

Regarding execution of the punishment, the Prophet said:

"The hand should be cut off for stealing something that is worth a quarter of a Dinar or more.[8]"

The world, in general, perceives Islam as a harsh and cruel religion. On the contrary, the Qur’an only sets the maximum Shari’ah penalty for stealing - amputation of the hand from the wrist joint. If the perpetrator repents and reforms their conduct then Allah will forgive them. Thus, by implication, the penalty should not be executed on them.

Mujtahids (Islamic jurists) have set conditions precedent before amputation, among them the value of the stolen item must be more than five (5) dinars and that stealing must be intentional[9]. The thief must be a sane Muslim (Multazim) who has attained puberty, a Dhimmi[10] and must have freely committed the act. Of course, every case is to be determined on merit (depending on the circumstances, evidence and motive of the crime).

Besides, punishments should be equivalent to the crime committed.

The Qur’an promulgates:

“And if you punish [an enemy, O believers], punish with an equivalent of that with which you were harmed. But if you are patient - it is better for those who are patient.[11]”

Unlike theft, the hadd punishment of robbery (hirabah) is not directly stated in the Qur’an. However, jurists have interpreted the following verse to refer to robbery:

“Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption is none but that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land. That is for them a disgrace in this world; and for them in the Hereafter is a great punishment, Except for those who return [repenting] before you apprehend them. And know that Allah is Forgiving and Merciful.[12]”

Imam Ash-Shafi’i narrated Ibn Abbas said:

“If the highwaymen kill and seize people’s properties, they must be killed and crucified. If they kill but do not seize properties, they must be killed without being crucified. Moreover, if they seize properties without killing, their hands and feet are to be cut off from opposite sides. If they only terrorize people on ways without seizing their properties, they are to be exiled from the land.[13]”

The ultimate rationale behind proscribing theft and robbery, obviously, is not to cause pain nor increase the multitude of the handicapped. Rather, it has a socio-pedagogic objective. It is to serve as a deterrent, restraint, and purification from such sins[14]. It is to satisfy “the Rights of Allah” and to secure the welfare of the society in this world and in the Hereafter. The cutting off of the hand (of a convicted thief) is to serve as a warning to the society and people contemplating to do such crimes.

Proscription is based on maslah (social advantage) enabling the preservation of important universal needs of mankind – life and property (wealth). This is particularly so because robbery usually involves violence that could pose a risk to the victim’s life or any other innocent bystander[15].

Islam is against earning from where there is no sweat. It encourages individuals to sweat for their material needs. The interdiction of these offences discourages parasitical behavior while ensuring that people do not live off the earnings of others. Apparently, theft and robbery without proscription would case social decay and disintegration.

Property owners are entitled to defend their wealth to the extent of killing the aggressor if necessary.

The Prophet (S.A.W) said:

“Whosoever is killed defending his wealth is a martyr.[16]”

The Qur’an legislates:

“And do not consume one another's wealth unjustly...[17]”

In another verse:

“…And do not consume their properties into your own. Indeed, that is ever a great sin.[18]”

Hadith:

“Whosoever unjustly takes any money or the wealth of another Muslim without a due right, Allah will meet such a person in a state of anger.[19]”

All these concrete legislations protect the society by deterring individuals from engaging in (such heinous) crimes. Thus preserving life and property within the society

The Qur’an, further, enunciates:

“And there is for you in legal retribution [saving of] life, O you [people] of understanding, that you may become righteous.[20]”

People will not engage in robberies, or any other crime, knowing very well the gravity of the punishments involved for such crimes. The grave punishments involved also wade off convicts from re-engaging in the crime. The end result is increased security, stability, harmony and better relationships among societies.

References:

1.               A.P. Bhardwaj (1 January 2014), Study Package for Clat and Llb, McGraw Hill Education; Third edition

2.               Beth Walston-Dunham (July 26, 2011), Introduction to Law, Delmar Cengage Learning; 6th edition

3.               Dr Salih Al-Fawzan (2009), A Summary of Islamic Jurisprudence, Al-Maiman Publishing House Saudi Arabia; 2nd edition

4.               Lawrin Armstrong (2016), The Idea of a Moral Economy: Gerard of Siena on Usury, Restitution, and Prescription, University of Toronto Press

5.               Lisa Cherkassky (2013), Course Notes: Criminal Law, Routledge,

6.               Lisa M. Storm (2015), Criminal Law By Storm, Lulu.com

7.               Mischa Allen (2016), Concentrate Questions and Answers Criminal Law, Oxford University Press,

8.               Mohamed S. El-Awa (1993), Punishment In Islamic Law, American Trust Publications, ISBN 978-0892591428, pp. 1-68

9.               Muhammad Ata Alsid Sidahmad (1995), The Hudud: The Hudud are the Seven Specific Crimes in Islamic Criminal Law and Their Mandatory Punishments, Muhammad Ata al Sid Sid Ahmad,

10.          Mushanga, Tibamanya Mwene (2014), Crime and Deviance: An introduction to Criminology, LawAfrica Publishing Ltd,

11.          Thomas Hobbes (1997), A Dialogue Between a Philosopher and a Student of the Common Laws of England, University of Chicago Press,

12.          Philippine Law Dictionary, Rex Bookstore, Inc.

[1] For the purpose of theft, Nisab is defined as the minimum value of the property stolen for the hand to be cut off. Hadith: Nisab for stealing is a quarter of a dinar (1 gram of gold) or more.

[2] Allen (2016); pg. 100

[3] Armstrong (2016); pg. 291

[4] Hobbes (1997); pg. 118

[5] Dunham (2011) pg. 539

[6] Hudud refers to punishments imposed by Allah and have to be carried out strictly as outlined without any deviation.

[7] Qur’an 5:38 - 39

[8] Sahih al-Bukhari, 8:81:780; Sahih al-Bukhari, 8:81:781

[9] Al-Shafi’i, al-Risala, 105

[10] A Dhimmi is a non-Muslim who lives within the jurisdiction of an Islamic state.

[11] Qur’an         16:126

[12] Qur’an 5:33 - 34

[13] Al-Fawzan (2009) pg. 627

[14] Al-Fawzan (2009) pg. 587

[15] Storm (2015) pg. 398

[16] Bukhari no 2348

[17] Qur’an 2:188

[18] Qur’an 4:2

[19] Ahmad no. 3946.

[20] Qur’an 2:179

---