Shielah Mae B.

Baguec
Legal Retribution (FIQH 401) – Fall 2016
Question 2: Theft and robbery are regarded in some spheres as two different
crimes. Do you agree? Substantiate your answer and also discuss in the process the
specific references for these crimes and the legal reason behind the criminalization
of such actions. (1000 to 1200 words)

Introduction

In conventional law, theft is the general term used to refer to any criminal act of
intentionally taking the personal property of another without consent or permission. It
is basically the act of stealing and may be done in the form of petty theft (stealing
something of little value), embezzlement (misappropriation of funds), plunder,
larceny (theft of tangible property), burglary (housebreaking), looting, or robbery
(theft by force). It may even include intellectual property theft and identity theft.
(Rivera, 2016)

While theft is universally understood as stealing in general, its punishment may vary
depending on the damage done. In some countries, for example, the penalty for
simple theft is one to six months of imprisonment while robbery is considered a
heinous crime punishable by permanent imprisonment. It is important to be able to
understand the different forms of theft. But for this essay, we will concentrate only on
theft by stealth and robbery and will examine both from an Islamic legal perspective.

Theft vs. Robbery: The Islamic View

Generally, there are two categories of legal punishment under Islamic Law, namely,
udūd (prescribed punishments) and Ta’zīr (discretionary punishments). In order for
ḥudūd to be executed, a set of conditions are always required to be fulfilled. The
criminal case must undergo due process and all forms of doubt and suspicion should
be eliminated. The severity of a punishment is always dependent on the seriousness
of the crime committed. For this reason, crimes and offences, especially those with
close semblance (as in the case of the three types of murder), are always clearly
defined and so are their respective punishments, if prescribed.
Theft and robbery may be synonymous in word, but they are very different in
practice. Generally, all robbery is theft (stealing), but not all theft is robbery. Different
kinds of robbery, like different kinds of murder, have different forms of punishment,
depending on the gravity of the crime.

In the case of theft, Islamic Law defines it as the act of stealing by stealth. This
means that in order for the ḥadd to be executed, the item must be stolen sneakily
(i.e. with the intention of preventing the thief from being discovered or identified as
he does the stealing). This description is what makes theft distinct from robbery, as
the latter is defined as the act of harassing or harming others and publicly seizing
their properties and wealth. In the case of the latter, it is possible that they conceal
their identities with a mask or disguise. But the important detail to note here is that
theft is done in secret, while robbery is done in the open.

Ruling on Theft and Robbery

The ukm (ruling) for theft is that it is arām (prohibited). The proof for such verdict
lies in the Qur’ān, the Prophet’s ‫ ﷺ‬Sunnah, and the ijmāa’ (consensus) of Islamic
scholars. The same is for robbery—highway robbery, to be precise. Both crimes
have an equitable punishment prescribed in Islamic legal sources. They are a form
of corruption in this world and endanger the safety of people and their properties. As
such, they contravene two of the five foundational purposes of Islamic Shari’ah, i.e.
the protection and preservation of property/wealth and life (in the case of robbery).

The prescribed punishment (ḥadd) for theft is the full amputation of the hand, the cut
being exactly on the wrist joint (Al-Fawzan, 2012, p. 623), and not just parts of the
hand like a few fingers as practiced in some Muslim countries. The strongest proof
for this is from Allah (SWT) Himself where He says in the Qur’ān: “[As for] the thief,
the male and the female, amputate their hands in recompense for what they
committed as a deterrent [punishment] from Allah. And Allah is Exalted in and
Wise.”1

It is interesting to note that the Arabic words used to mean ‘the thief’ (‫)والٌسَارق والسَارقة‬
include the definite article ‘al’ (the), which means that the punishment is to be

1 Sūrat Al-Mā’idah 5:38

executed on ‘the thief’ and not ‘a thief’ (i.e. not just any thief or not all thieves). The
fact that the subject was in its definite form supports the principle of specifying and
categorizing crimes and their equitable punishments rather than imposing a law on
every member of a class for the reason that they share similar attributes.

Moreover, the Prophet Muhammad ‫ ﷺ‬was reported to have said: “The hand should
be cut off for stealing something that is worth more than a quarter of a dinar or
more.”2 This hadith has now specified how much should be stolen by the thief in
order to require amputation.

In another hadith, he expressed his seriousness in this matter. He said, “What

destroyed the nations preceding you, was that if a noble amongst them stole, they
would forgive him, and if a poor person amongst them stole, they would inflict Allah’s
legal punishment on him. By Allah, if Fatimah, the daughter of Muhammad stole, I
would cut off her hand.”3

In order for amputation to be executed on the thief, the thief must have stolen
stealthily. Imām Ibn Al-Qayyim argues that such penalty is to be imposed on the
thief, “rather than on the plunderer and the usurper.” Although the latter have
committed greater crimes, cutting their hand is not applicable as the law specifically
addresses the thief. In addition, “it is impossible to be guarded against him (thief), for
he digs out houses, rips open repositories of properties and breaks the seals.” Ibn
Al-Qayyim points out that if amputation were not legislated, “people would steal one
another, damage would aggravate, and hardship would grow severer.” (Al-Fawzan,
2012, p. 620). Theft is, most of the time, unseen and unknown because the thief’s
objective is to steal without being discovered. Therefore, there is no way to stop him
on the spot.

Furthermore, the stolen property must be inviolable and not from the possession of
an enemy of Muslims. The value of the stolen property must not be less than the
niṣāb (i.e. quarter of a dinar). It must be kept in a repository and the thief and victim
should not be related in a way that one is legally entitled to a portion of the other’s
wealth. The victim must demand for the stolen item to be returned. Above all, the

2 Bukhāri Vol. 8: No.780

3 Bukhāri Vol. 4: No. 681; Muslim Book 17 No. 4177; Abū Dāwūd Book 39 No. 4371
theft must have been proven, either by confession or by witnesses’ testimony. These
are the major conditions to be fulfilled in order for amputation to take place.

Robbery, on the other hand, is a form of irābah, or “unlawful warfare” (Crane,

2006). Unlike theft, it is armed and done in public. Its punishment may vary
depending on the damage done. Allah (SWT) says in the Qur’ān: “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.”4

In the above verse, Allah (SWT) refers to those people who cause and spread harm
and mischief. These robbers harass people while out in the open and aggressively
seize their wealth and properties. It may take place in the road, the highway, the
waters, or in public places like markets and banks.

Robbery in general is much more serious than theft in that it does not only involve
taking others’ property, but also inflicts terror or physical harm, which may result in
homicide. If the robber or terrorist seizes properties without killing, his punishment is
the amputation of his right hand and his left leg and both must be cut in one sitting
and never delayed. This is because the purpose of amputation is to cut off the limbs
and not to inflict pain. If the robber takes property and kills, he is to be killed and
crucified. If the robber terrorizes people while taking little or no property, he is to be
exiled (or imprisoned, if exile may result in him causing trouble elsewhere). But if the
robber simply kills without taking property, the punishment is death without
crucifixion.

In order for the above specified punishments to be executed on the robber/s, the
same conditions as those set for theft must be fulfilled. Otherwise, the penalty will be
discretionary.

4 Sūrat Al-Mā’idah 5:33-34

 Conclusion

Akbar (2002) acknowledges that “the goal of the penal laws of the Quran in the case
of theft is never to create a multitude of the handicapped. On the contrary, it is to
create and make possible a situation wherein nobody is robbed off one's
possessions” (p. 234). Allah (SWT) is indeed Merciful. He has revealed to us the
Qur’ān through which we depend on to achieve a peaceful and fruitful life in this
dunya. Without the laws from the Qur’an and Sunnah, this world will be a chaos for
humanity. Life will be devoid of guidance and the human soul will always be closer to
Hellfire. SubhanAllah.
 References

Akbar, M. M. (2002). The Authenticity of the Qur'an. (B. Abdul Quadir, Trans.) Niche
of Truth. Retrieved December 26, 2016, from
http://www.nicheoftruth.org/pages/robbery.asp
Al-Fawzan, S. (2012). A Summary of Islamic Jurisprudence. Al-Maiman Publishing
House.
Crane, R. D. (2006). Hirabah versus Jihad. Retrieved December 25, 2016, from
IRFI.org (Islamic Research Foundation International, Inc.):
http://www.irfi.org/articles/articles_301_350/hirabah_versus_jihad.htm
Rivera, J. (2016). Types of Theft. Retrieved December 25, 2016, from Legal Match:
http://www.legalmatch.com/law-library/article/types-of-theft.html