Islamic Sharia:

As we previously said, it is the laws that Allah the Almighty laid down and enacted in order to regulate people’s relationship with Allah the Almighty, their relationship with each other and their relationships with their zoological and environmental surroundings. Some of these laws regulate matters of worship, and some others regulate the economic, commercial and social transactions, and some others organize the fundamentals which the country is built on, and they also organize the role of the legislative authority, the judicial power, and the executive power.

Purposes of Islamic Sharia


 

The purposes of Sharia are the goals that the Sharia came to accomplish, they are the complete definitions the Sharia pursued and for which the Sharia laid down the rules and punishments. Some of the examples of the Islamic Sharia purposes are:

1. Protecting the religion:

Protecting the religion is the most important purpose of the Islamic Sharia. Allah the Almighty said:

And your Lord has decreed that you worship none but Him. And that you be dutiful to your parents. If one of them or both of them attain old age in your life, say not to them a word of disrespect, nor shout at them but address them in terms of honor.’’


(Al-Isrâ’ 17:23)

The Sharia mentioned the great reward for those who help people protect their religion whether it is by teaching them the religion, as the Messenger of Allah ((ﷺ said:

The best among you is he who learns and teaches the Qur'an.”


 


Or by constructing mosques so people can learn their religion and worship Allah inside them, as the Messenger of Allah ((ﷺ said:

“Whoever builds a mosque for the sake of Allah, even it is like a sparrow's nest or even smaller, Allah will build for him a house in Paradise.”

(Ibn Hibbân)

2. Protecting the self:

Allah the Almighty created the human soul and prohibited the assault on it, whether the assault is from the individual towards himself in order to destruct it, as Allah said:

O you who believe! Eat not up your property among yourselves unjustly except it be a trade amongst you, by mutual consent. And do not kill yourselves (nor kill one another). Surely, Allâh is Most Merciful to you.”


(An-Nisâ’ 4:29)

Or when an individual assaults another soul whether this soul belongs to a believer or a disbeliever, as Allah said:

“And do not kill anyone whose killing Allâh has forbidden, except for a just cause.”

(Al-Isrâ’ 17:33)

Whoever deliberately kills a soul gets retribution as an order from the judge. The parents of the murdered can forgive and abandon the retribution, as Allah the Almighty said:

“O you who believe! Al-Qisâs (the law of equality between crime and punishment - an eye for an eye and a tooth for a tooth) is prescribed for you in case of murder: the free for the free, the slave for the slave, and the female for the female (i.e. the killer should be killed and not someone else. As in the past when there were conflicts between two tribes and a man was killed, his tribe refused to kill the assassin, and wanted to kill two or three men from the other tribe, saying: ‘a man of us is equivalent to three of you and a slave of us is equivalent to a noble of you and a woman of us is equivalent to a man of you’). But if the killer is forgiven by his brother (i.e. By the head of the family of the killed against blood-money, and reported here as a brother as a reminder that they are brothers in Islam, not enemies), then he should demand the blood-money in a good manner (i.e. without harming the killer), and (the killer) should pay to him in good manner (without postponement or reduction). This is an alleviation and a mercy from your Lord. So after this whoever transgresses the limits (i.e. kills the killer after taking the blood-money), he shall have a painful torment.”

(Al-Bâqarah 2:178)

3. Protecting the mind:

Allah the Almighty differentiated the human from the animals by the bless of the mind, and enacted legislations to guard this bless for humans, so He prohibited whatever causes its damage, and whatever causes the absence of the mind (intoxication) like alcohol and other drugs that ruin the mind and harm it, as Allah the Almighty said:

O you who believe! Intoxicants (all kinds of alcoholic drinks), and gambling, and Al-Ansâb (stone-altars at fixed places or graves, whereon sacrifices were slaughtered on certain occasions in the name of idols), and Al-Azlâm (arrows for seeking luck or decision) are an abomination of Satan’s handiwork. So avoid (strictly all) that (abomination) in order that you may be successful.’’


(Al-Mâ’idah 5:90)

In Islam, it is called the mother of the wicked deeds for its great danger on both the individual himself and the society, as it is the head of evilness and the basis of every crime.

4. Protecting the money:

Money is the base of life. Allah the Almighty made it an essential instrument for guarding the life. Because of money, interests are completed, provisions like food, clothes, education and home, etc. are gradually provided.

Allah the Almighty has clarified the legitimate ways to earn money, the methods to increase it and the methods to spend it. Therefore, He prohibited every act that wrongfully wastes money and causes its loss and He prohibited the exploitation of people and the eating up of their properties by falsehood through usury, bribery, stealing, gambling or betting, as Allah the Almighty said:


“O you who believe! Eat not up your property among yourselves unjustly.”


(An-Nisâ’ 4:29)


He also prohibited spending money on what damages one’s self or another, or wasting it by spending it unnecessarily. He imposed, regarding money, rights for the relatives who are kindred, and for the needy people by charity and beneficence, as Allah the Almighty said:


“And give to the kinsman his due and to the needy and to the wayfarer. But spend not wastefully (your wealth) in the manner of a spendthrift. * Verily, the spendthrifts are brothers of the devils, and the Devil is ever ungrateful to his Lord.”


(Al-Isrâ’ 17:26-27)


 

5. Protecting the offspring:

The Islamic Sharia forbade anything that could be cause of illegal mixing of lineage, like adultery, as Allah said:

“And come not near to unlawful sex. Verily, it is a Fâhishah (i.e. a great sin), and an evil way (that leads one to Hell unless Allâh forgives him).”

Al-Isrâ’ 17:32)


It also prohibited whatever could be the reason for eliminating offspring or stopping it like buggery or lesbianism, as Allah the Almighty said:


“And of mankind there is he whose speech may please you (O Muhammad), in this worldly life, and he calls Allâh to witness as to that which is in his heart, yet he is the most quarrelsome of the opponents. * And when he turns away (from you, O Muhammad), his effort in the land is to make mischief therein and to destroy the crops and the cattle, and Allâh likes not mischief.”


(Al-Bâqarah 204-205)

Hudūd Punishments

Punishments were legislated in the Islamic Sharia in order to guard the laws Allah revealed to regulate the human’s lives. Ιn order to ensure that those laws are applied and respected by people, there should be a law that organizes disciplinary and punitive sanctions to whoever disobeys those laws, therefore, Allah has legislated the Hudūd (punishments), that is the Penal Code, since the Islamic Sharia did not state any punishment, but to protect a right. Non-Muslims are often confused between the definition of Hudūd (punishments) and the Islamic Sharia itself, thinking that the Islamic Sharia is only about punishments and disciplinary and punitive sanctions, such as cutting the hand of a burglar, killing a murderer, etc. This conception is false, as the Hudūd (sanctions) are imposed only against those who violate the laws of the Islamic Sharia in order to protect them and guarantee that they are not being violated. In addition, applying the sanctions on the violators will protect people’s lives, money, honor and minds, and will also guarantee the protection of the human entity, similar to the outer wall that protects the city (which is the Islamic Sharia) from the bandits that want to break in and assault the safe residents in it. Allah Almighty has spoken the truth:

And there is (a saving of) life for you in Al-Qisâs (the Law of Equality in punishment), O men of understanding, that you may become pious.”


(Al-Bâqarah 2:179)

Note that the punishments are not something new in the Islamic Sharia, but Allah the Almighty ordered them in all the divine Sharias, as when Allah ordered the imposition of punishments in the Torah He revealed to Moses, peace be upon him. Allah the Almighty said:

Verily, We did send down the Taurât (Torah) [to Mûsâ (Moses)], therein was guidance and light, by which the Prophets, who submitted themselves to Allâh’s Will, judged between the Jews. And the rabbis and the priests [too judged between the Jews by the Taurât (Torah) after those Prophets], for to them was entrusted the protection of Allâh’s Book, and they were witnesses thereto. Therefore, fear not men but fear Me (O Jews) and sell not My Verses for a miserable price. And whosoever does not judge by what Allâh has revealed, such are the Kâfirûn (i.e. disbelievers - of a lesser degree as they do not act on Allâh’s Laws). * And We ordained therein for them: "Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal." But if anyone remits the retaliation by way of charity, it shall be for him an expiation. And whosoever does not judge by that which Allâh has revealed, such are the Zâlimûn (polytheists and wrong-doers - of a lesser degree).”


(Al-Mâ’idah 5:44-45)

 

Allah also ordered the imposition of punishments in theBible revealed to Jesus, peace be upon him. Allah the Almighty said:

And in their footsteps, We sent ‘Îsâ (Jesus), son of Maryam (Mary), confirming the Taurât (Torah) that had come before him, and We gave him the Injeel (Gospel), in which was guidance and light and confirmation of the Taurât (Torah) that had come before it, a guidance and an admonition for the pious. * Let the people of the Injeel (Gospel) judge by what Allâh has revealed therein. And whosoever does not judge by what Allâh has revealed (then) such (people) are the Fâsiqûn [disobedient to Allâh].”


Al- Mâ’idah 5:46)

Who handles the execution of punishments?

The execution of the punishments on the criminal, is the responsibility of the Muslims’ ruler, or the one who represents him, while the individuals of the society don’t have the right to execute punishments by themselves on the criminal, as Islam is a religion of order, and not a religion of randomness or barbarism. As in the era of Messenger of Allah ((ﷺ that no one carried out punishments unless this was done under his permission. Allah the Almighty said:

And so judge (you O Muhammad) among them by what Allâh has revealed and follow not their vain desires, but beware of them lest they turn you (O Muhammad) far away from some of that which Allâh has sent down to you. And if they turn away, then know that Allâh’s Will is to punish them for some sins of theirs. And truly, many people are Fâsiqûn (rebellious and disobedient to Allâh).”


Al-Mâ’idah 5:49)


 


When can the ḥudūd (punishments) be dropped?

1. Retreating from confession of the crime:

The opinion of the majority of scholars[8] (Abu Hanîfa, Ash-Shâfi‘ei and Ahmad( is that if someone confesses his guilt with his free will, and then before the execution of the punishment, he goes back at his confession, then the punishment is also cancelled. In case he doesn’t go back at his confession, but he escapes during the execution of the punishment, then no one should chase him, may he repent to Allah.

Mâ‘iz bin Mâlik–may Allah be pleased with him- was an orphan in the guardian of Hazzâl Al-Aslami –may Allah be pleased with him-. Mâ’iz sinned as he committed adultery with a female slave from the neighborhood, so Hazzâl told him to go and confess what he has done to the Messenger of Allah ((ﷺ, and after he confessed four times, the Messenger of Allah ((ﷺ ordered them to carry out the punishment on him, but when the punishment was being carried out, he ran away until Abd Allah bin Anis stopped him and then they carried it out. So when the Messenger of Allah ((ﷺ was informed of what happened, he said:

Why did you not leave him to escape! May he repent and Allah accept his repentance. O Hazzâl if you would cover him up with your robe, it would be better than what you did (i.e. if you would tell him to repent to Allah and to conceal his sin, would be better than that you told him to come to confess his guilt).”


âkim)


Al-Baji said: “The phrase ‘If you would cover him up with your robe’ means that Hazzâl should order Mâ‘iz to repent and conceal his sin, the mention of ‘robe’ was used for exaggeration.”

2. Doubt:

udûd (punishments) are suspended by supposition. Ûmar ibn al-Khattâb –may Allah be pleased with him- said:


“To suspend the legal punishments because of doubt, is more beloved to me than applying them by suspicions.”

Shaybah)


Therefore, for whoever steals money thinking that it is his or he has right on it, the punishment is suspended.

3. Repentance:

If the criminals repent before his arrest from the authorities, the punishment is suspended, but if the repentance comes after his arrest from the authorities then it is not suspended, as Allah the Almighty said:

“Except for those who repent before they fall into your power: in that case, know that Allah is Ghafûr (Oft-forgiving), Rahîm (Most Merciful).”

(Al-Mâ’idah 5:34)

The intended repentance here, which suspends punishment before the criminal is arrested is the repentance related to bandits (highwaymen[9] who rode horses and attacked with violence the travellers at their road to kill them or to steal their money and women); this is the consensus of scholars. As for the rest of the hudûd (punishments), like adultery and stealing, there are two opinions. The first opinion: hudûd are suspended by repentance before the criminal is arrested, and the second opinion: that repentance before the criminal is arrested doesn’t suspend the punishment. Regarding the repentance for the slander (defamation against one woman at her chastity), the scholars agreed that the punishment is not suspended whether it is before his arrest or after. This matter has more details, and whoever wants to seek out more information should get back to the books of Islamic jurisprudence.

4. Retreating from testimony:

Retreating of witnesses from their testimony after the ruling and before executing it, is a suspension of the punishment for the criminal.

5. Interference:

If the same crime (such as theft) is repeated several times before the authority catches the criminal and to applies the punishment to him, then after his arrest the punishment will be applied only once for those several times of stealing he committed as long they are the same type of crime.

Conditions of applying the punishment


 

1. Ability to take responsibility for the acts (reason and puberty):

Punishment cannot be carried out on the child, the crazy or the mentally deranged, as the Messenger of Allah, peace be upon him, said:

“The pen has been lifted from three (i.e. their sins are not recorded): From the mentally insane until he comes back to his senses or recovers, from the sleeping person until he awakens, from the child until he reaches puberty.”


 

2. Choice and non-coercion:

Allah the Almighty said:

“Whoever disbelieved in Allah after his belief, except him who is forced thereto and whose heart is at rest with Faith; but such as open their breasts to disbelief, on them is wrath from Allah, and theirs will be a great torment.”

3. Health and ability:

As the punishment cannot be carried out on the sick or the one who has a weak body except after they are healthy.

. Awareness of the prohibition.


 

Desirability of covering the Muslim:

Whoever witnesses a Muslim committing a sin, then he can choose between testifying for the Sake of Allah or covering up his Muslim brother. The latter is better and there are more details in the books of Islamic jurisprudence for whoever wants to seek more information, as the Messenger of Allah ((ﷺ said:

“Whoever covers (the sin or faults of) a Muslim, Allah will cover him (his sin or faults) in this world and in the Hereafter.”

The misconception of cruelty of punishments in Islam:

The Western media coverage transmits that the punishments set by Islam for some crimes (death penalty for the killer, cutting burglar’s hand) are harsh, brutal and savage and they are not suitable for our time!

The answer to this misconception:

Everyone agrees that these crimes (killing, burglary) have a big damage on the society and harm the society very badly, and that they must be fought and confronted through the imposition of sanctions. As for the disagreement, it lies on the type of sanctions! Everyone can ask himself: which are more effective and successful in eliminating the crime and decreasing it, the sanctions set by Islam, or the sanctions set by humans which did nothing but helping the crime to grow and spread more and more


 

• Reasonably, every sanction needs to be a bit harsh in order to deter the criminals; otherwise, its validity is lost.

• Quitting the application of the punishment because of its ruthlessness, would be unfair to the society, because how then would the individual feel safe on himself, his money and honor? As carrying out punishment is a mercy for the society and even for the criminal himself.

The relation between the Islamic Sharia and the man-made laws:

The main rule in Islamic Sharia is that everything is permissible, as Allah the Almighty said:

“See you not (O men) that Allâh has subjected for you whatsoever is in the heavens and whatsoever is in the earth, and has completed and perfected His Graces upon you, (both) apparent (i.e. Islâmic Monotheism, and the lawful pleasures of this world, including health, good looks, etc.) and hidden [i.e. One’s Faith in Allâh (of Islâmic Monotheism), knowledge, wisdom, guidance for doing righteous deeds, and also the pleasures and delights of the Hereafter in Paradise]?”

(Luqmân 31:20)

Except for what a clear text in the Sharia prohibits, as the Messenger of Allah ((ﷺ said:


“‘What is lawful is that which Allah has permitted in His Book, and what is unlawful is that which Allah has forbidden. What He remained silent about is what is pardoned, so accept from Allah forgiveness, as Allah is not forgetful.’ Then he recited this verse: ‘And your Lord is never forgetful’ (Maryam 19:64).”


(Al-Hâkim)


Therefore, the Islamic Sharia didn’t prohibit the man-made laws that regulate the life of humans, but it permitted them as long as they don’t conflict with it, like Maritime Law or Labor Law, etc. Instead, it prohibited the laws that codify crimes or evil deeds that have a negative and visible impact on human’s mental, financial, social, moral, or health aspect. In other words, the prohibition is made for the interest of human himself, since Allah is free of the need of His creations, their sins won’t harm Him, and their obedience won’t benefit Him. Allah the Almighty said:


“Say (O Muhammad): "(But) the things that my Lord has indeed forbidden are Al-Fawâhish (great evil sins and every kind of unlawful sexual intercourse) whether committed openly or secretly, sins (of all kinds), unrighteous oppression, joining partners (in worship) with Allâh for which He has given no authority, and saying things about Allâh of which you have no knowledge."


(Al-A‘râf 7:33)


 

Demand of applying the Islamic Sharia in non-Islamic countries

Courts of Islamic Sharia in non-Muslim countries:

There are media campaigns and press reports that criticize and denounce the presence of councils or courts for the Islamic Sharia in some western non-Muslim countries, even though those countries allowed the Muslims to have such councils and legalized them. The truth is that those courts are not actual courts in the conventional legal sense, but they are councils that help Muslims in marriage, divorce, inheritance matters and others. For example: if someone kills someone else, these councils will not carry out the punishment on him, instead, the police will take him to the ordinary law courts in that country. These media campaigns and press reports want to frighten the citizens in that country against these councils, so they portray them as an invasion of their country, which is ridiculous, meaningless and false speech that is based on ignorance if not hatred towards the Islam and the Muslims. They want to make the people think that the sanctions mentioned in the Islamic Sharia are applied inside these councils away from the police’s authority! While in fact, those councils are exactly the same as the ‘Personal status law for non-Muslims’ which exist in Muslim countries! As the tolerant Islamic Sharia allowed the non-Muslims who live in Muslim countries to be judged based on their own legislations in many matters like marriage, divorce and others, and didn’t impose on them the Islamic laws applied on Muslims in those matters, unless they want the Islamic courts to judge between them according to the Islamic laws. Even the acts that the Islamic Sharia prohibits and condemns are not prohibited for non-Muslims, like for example drinking alcohol and eating pork. That it is because they don’t believe that eating pork and drinking alcohol is prohibited, though these acts were originally prohibited in their doctrine (in their Holy Bible), and there are many proofs of that.

One example of the maliciousness of those media campaigns and press reports, which have political agenda, is that of a presenter on a show on a channel who asked the Muslims who live in his country: “Which come first in your opinion, the Islamic law or the law of this country?” The Muslims spontaneously answered: ‘‘the Islamic law first’’ and this is a very normal answer, because the question itself is meaningless and indicates racism and hatred on the part of the presenter of the show. Because through his answer, the Muslim meant that the Word of Allah comes before the word of humans, and he did not mean that he does not respect the law of the country! Besides, the Islamic law orders him not to kill, steal, or cheat, and this is the same thing the man-made laws order, so there is no contradiction. What the Muslim meant by his answer is that if the man-made law in this non-Muslim country permit having a mistress, drinking alcohol, having abortion or eating pork then he will not follow these legitimate acts, and he will follow the orders of Allah, so he will not drink, have a mistress or kill his fetus by abortion. Therefore, he didn’t mean by his answer that he will violate the law of that country. As for the sanctions, such as the sanction of burglary, or murder, the Muslim will not have the prescribed punishment that the Islamic Sharia would apply on him. This is because of the absence of conditions of applying punishments, since the punishments in Sharia are done by the order of the Muslim ruler or his representative, such as a Muslim judge, and since the Muslim lives in that country according to its regulations and laws, and the Muslim has to respect and to not violate his contracts and charters, too, as long they don’t order him to do something which Allah has forbidden. Note that we are here talking about a Muslim who lives in a non-Muslim country, and not a Muslim country!


The Muslim who lives in a non-Muslim country has to respect and act according to the laws of that country as long as they don’t order him to disobey Allah the Almighty, because if they do, then he has to leave that country that doesn’t respect the freedom of religion and the personal rights. For example, if these laws order a Muslim woman to take off her hijab, then she has to leave immediately so that she can save herself from these absurd laws, and it is Not permissible for her to resist the authorities with violence and so. But if the laws of that country contradict with the rights of the Muslim citizen without ordering him to do something that Allah has forbidden, then he has the right to confront these laws with the peaceful ways through parliaments, press or through any peaceful means in order to show his objection! For example, if the law doesn’t permit constructing a mosque so that Muslims can perform their prayers, or if the law doesn’t permit Muslims to have polygamy, while it is allowed to have girlfriends instead of wives, then in this case a Muslim needs to turn to the judiciary or the legislature like the parliament or to the press so that he can gain his religious rights that Allah the Almighty imposed on him like praying, or what He permitted him like polygamy.


 

Should the non-Muslim countries be required to apply the Islamic Sharia?

There are some Muslim emigrants or new Muslims in some western countries who carry black flags with the two declarations of faith and signs that say for example: “Sharia for England”. So is this act right or wrong?


In order to find out the answer to this, we have to take into consideration the followings:


 • First of all, these people didn’t introduce the Islamic Sharia in the right way for the non-Muslim citizens of that country. Instead, they demanded from them to apply it immediately, while these Muslims know that all what the non-Muslim citizens have in their mind about the Islamic Sharia are its sanctions, like the cutting off the hand of the burglar and others. So, how can it be expected that these citizens would accept the idea of applying the Sharia on them? As by this act, these Muslims are not introducing the Sharia to the non-Muslim citizens, they are making them scared of it!


• These Muslim people are mostly confused between the definition of Sharia and the Islamic religion, as their aim for that act is to invite people to embrace Islam, but through the way they followed, people understood that they wanted to apply the Islamic laws on them, or even that they want to apply the prescribed sanctions of the Islamic Sharia on them.


 • The Islamic Sharia is the Sharia of the Muslim country, so non-Muslim countries should not be required to apply them. The Islamic history since the era of the Messenger of Allah ((ﷺ and the righteous caliphs has not mentioned that anyone of them had demanded from the non-Muslim countries to apply the Sharia of Muslims! Moreover, how could a country that doesn’t embrace Islam and most of its citizens are Christians or Jews and is ruled by a Christian or Jewish ruler, apply a Sharia that isn’t its own!


• The demand for the Islamic Sharia to be applied as laws must be expressed within legal frameworks. For example: this demand should be expressed inside the parliament because that is the only place specialized in the endorsement of laws. If it was expressed through lifting banners in the streets it would provoke the citizens and make them angry, and the effect would be the opposite and would cause damage to the Dawah (efforts of introducing Islam to non-Muslims) itself.


 

Part lll

• Islamic law and the man-made law and achievement of the objective.

 • Sanction of the burglar, cutting off the hand or imprisonment.

 • Sanction of the burglar in the Bible.

 • Self-defense in the Islamic Sharia.

 • Self-defense in the Bible.

• Self-defense in the man-made law.

Part lll

The Islamic law and the man-made law and achievement of the objective

All Penal Laws were not enacted but to achieve two main goals:

 • Deterring: by deterring the mistaken from going back to his mistake, and deterring people from following his example of doing the same mistake.

 • Mercy towards the individual and the society: the mercy towards the individual is achieved by deterring him from committing something that violates others’ rights, and in this way the punishment is not carried out upon him.


Mercy is completed towards the society by protecting the rights of the people from anyone who wants to violate them! Here arises a question: which one is more deterring and at the same time more merciful towards people, the Islamic law or the man-made law?! Let’s take some examples, such as the crime of burglary and the sanction of the burglar in the Islamic law and the man-made law respectively, to see which one is more efficient in achieving the aforementioned objective! 

Sanction of the burglar, cutting off the hand (palm) or imprisonment for many years

First, we need to know that sanctions are not a virtue or something that is good, because if they were so, they would not have been called ‘sanctions’ and they would have lost their main role, which is deterring. Therefore, when we compare the sanction of the burglar between cutting off the hand and imprisonment, we actually compare between two bad things, and that is because both of them are actually ‘sanctions’, but we choose the “best-worst” two and the least harmful ones.

If we look at it from a rational and reasonable perspective, and as an aspiring approach for the future, and away from the emotional perspective, it is clear that the sanction of cutting the hand is more deterring than imprisonment and more effective in eliminating this crime, because when the burglar knows that his hand will be cut off, then it does not make sense to commit the crime, so in this way his hand will be safe, and also people’s money and properties will be safe. As for the sanction of imprisonment, even though it is a sanction, but it doesn’t deter the burglar from committing the crime of burglary as it is a time-bound sanction for a specific time. After that the burglar is released and he will commit more and more burglaries, due to his underestimation of this sanction! Allah the Almighty said:

“As for the male thief and the female thief, cut off (from the wrist joint) their (right) hands as a recompense for that which they committed, a punishment by way of example from Allah. And Allah is ‘Azîz (All-Powerful), Hakîm (All-Wise).”

(Al-Mâ’idah 5:38)

When Allah says “a punishment from Allah”, it is clear that it is from Allah, and not from the creation. His creation should obey Him, because He knows better than them regarding their affairs and what is better for them in this world. Although the sanction of cutting the hand of the burglar off is more deterring for him than imprisonment, it is also more merciful to him and to the whole society as well! That is because by deterring the burglar from committing the crime, safety is spread among people, and in this way they live in a secure society where their hearts are in peace and no one fears for their properties and money. At the same time, it is also more merciful to the burglar himself because it saves him from the damages and the vicious disadvantages of imprisonment, as it is known that prison communities are communities that gather all kinds of criminals who committed all kinds of crimes. These damages and these disadvantages of imprisonment destroy the criminal himself and the society as a whole.

Harms of prisons:

1. Increasing criminality of the criminal:

One of the disadvantages of prison is holding the mistaken, no matter how small his mistake is, in a criminal environment where he learns all arts and kinds of crimes. This is because prison is like a university, where criminals exchange experiences, as the beginner criminal meets high profile criminals, and in this way he learns from them other criminal methods that are more dangerous than his crime which led him to jail. Thus the beginner criminal after his release, will come back to the society as a high profile criminal who has become even more dangerous for the society than before. Another point is that inside jail the criminals make friendships between themselves that last after they are out of prison, thus new criminal networks are formed, networks that include a killer and a drug dealer, along with a pharmacist, a computer programmer and a nuclear scientist. Nothing has gathered them except that they all went to prison to spend some jail time because of different crimes in volume and kind! This dangerous matter regarding the sanction of imprisonment made many lawmakers create the theory of ‘separating prisoners inside prisons’, but of course, this theory failed from the first moments due to the impossibility of applying it in real life. This is because isolating the prisoners would cause them psychological problems, aside from its heavy financial cost that will take lot of money from the good taxpaying citizens in order to build big prisons that are equipped with the facilities needed to provide this isolation between prisoners!

2. Slow death for the criminal, psychologically and spiritually:

Jail time destroys the mental state, and the spiritual life of the prisoner is completely ends just when he enters the prison, as he gets locked inside a cage like a dangerous animal and in complete isolation from the rest of the society outside. After he is done with jail time, he returns to the society more isolated and more dangerous because it has become more difficult for him to adapt to the civilized civil society. He also returns to the society with many psychological problems that can harm the society!

3. Slow death for the criminal economically:

Jail time ruins the economic life of the prisoners and cause it to fall apart immediately after entering prison. If the prisoner is an employee, then he will get discharged from his job. If he has a business or he is a businessman then his business will collapse and his work will be lost, which will lead to the breakdown of the economic life of his family and of all the people who are financially dependent on him, as his employees will lose their jobs and that in return will affect their families and the society as a whole, by causing an economic damage, while they did nothing wrong.

4. Slow death for the criminal socially:

Jail time ends the social life of the prisoner immediately once he enters the jail. What social life can be there for a prisoner who be imprisoned and isolated away from his wife, children, relatives and friends?!

5. Collective punishment for the whole family of the prisoner:

The family of the imprisoned will face psychological and social torment due to his imprisonment away from them. A wife who had her husband taken away from her, a mother whose child is kept away from her and these young children who were deprived of their own father without being guilty at all! How is it possible for a prisoner to take care about the psychological, financial, sexual and social needs of his wife? How can he raise his children and give them his compassion and care which they need? How can he look after his mother and father if they are elderly or ill? Actually, his imprisonment is a prison to all of them! And this is in case the prisoner is a man, but if the prisoner is a woman with infants, then who can take care of them, feed them and watch over their needs? What cruel hearts are these that could separate a mother from her small children and put them in one of the state institutions to take care of them? What care will that institution offer to children whose mother was taken away from them? Yes, it will offer them food, drink, and clothes, but it will never offer them sympathy, tenderness, warmth of the motherhood and good upbringing! And with no doubt this will create a new generation full of complicated psychological and social issues with negative effects that will appear in the future, and the society will not endure that!

 

6. Slow death for the criminal politically:

Jail time is a slow death or even a quick one for the criminal, who actually could be innocent of the charges, as in one of the developed countries, where a charge of financial corruption was fabricated for a supreme political oppositionist of that country. Many developed countries described that charge as invalid and that was due to political reasons to completely remove this oppositionist, who was very influential to his audience, from the political scene. Of course, his government had two choices: either to assassinate him and have him killed, or to assassinate him politically by imprisoning and isolating him from the society and his audience


 

7. Exhausting the state budget and the income of good taxpaying citizens with huge financial burdens:

The costs of building prisons, their maintenance, their guarding, the salaries of the employees like officers and soldiers, let alone the costs of having them armed, the costs of cars used to move prisoners from the jail to the court and vice versa, the costs of movement of the officers from their homes to their work and the costs of feeding and staying of prisoners inside the prisons. All these costs are endured by the honorable citizen who actually has been robbed before! That is because the government increases the taxes of the citizen’s income so that it can bear the expenses of prisoners. In other words, the burglar has stolen from the citizen before he enters the jail, and now he is stealing from him again after he entered jail, but in an indirect way! Through this, the honorable citizen might become a burglar himself because of all this pressure coming from the taxes imposed on him, since instead of spending his money on improving his children’s education and his living conditions, he is forced to spend it on the feeding and staying of the burglar who stole from him before! On the other hand, if the money the country spends on prisoners, their services and the salaries of the officers and employees who work inside prisons, could be spent on improving the conditions of low-income people, then there would be no thieves in the society! Furthermore, the man-made laws created through the sanction of “imprisonment” an army of prisoners, an army of officers and soldiers to guard them, and it made both armies a consumed energy of society instead of making them a productive energy that helps in the growth of society!

These are some of the resultant disadvantages of applying the penalty of imprisonment. Therefore, if a burglar was offered to choose between being punished by having one of his hands cut off or by being imprisoned for several years, may he would choose to have his one hand cut rather than having his life fall apart socially, financially, psychologically, mentally and even politically! The same thing applies to the aforementioned political oppositionist in case he was offered the same deal; he would choose having his one hand cut instead of being imprisoned, thus, the punishment of cutting off his one hand would be a mercy to him and a torture for those who fabricated the charge against him, simply because, he would not disappear from the political scene and he will keep fighting against their financial and moral corruption!!

As a lawyer and an activist in the field of human rights, I invite the organizations of human rights and the United Nations to take a firm stand against that hideous and destructive punishment, which is the imprisonment of the burglar!

The actual applying of the sanction of ‘cutting the hand off’:

Sheikh Saleh Al-fawzân, may Allah protect him, mentioned in one of his lectures that during the last ten years, he only heard of two or three cases of cutting the hand off in Saudi Arabia. Of course, if we compare between this percentage and the thousands who are put in prison on a yearly basis in many developed countries, then we will see how the sanction of cutting one hand is more merciful to the burglar, and to the whole society. Because it kept the safety of society and of the burglar as well, by deterring him from committing a burglary, and in this way, no punishment will be imposed on him.

Conditions of cutting the hand off:

It is not like some people imagines it, that once someone steals, the punishment of cutting his hand off will be immediately applied, as carrying out punishment is not meant to harm him because he stole money, but to stop him from frightening the safe people and break into their homes and steal from them. Also, the punishment is not applied on every thief but in very few cases, and in order to apply the punishment of cutting the hand off, certain conditions need to be fulfilled. These are:


 

1. Breaking the safe:

The term ‘safe’ here means whatever the people use to save their money or products in, such as a safe box, ware house, their homes and what is like them. Simply, the scholars agreed that Just stealing does not require the sanction of cutting off the hand, unless there is a breaking of the safe. For example, when the burglar breaks the locks and enters, or breaks the door or the window, or makes a hole in its roof or wall, or puts his hand in a pocket of someone else to take what is in it, and so on.

2. Taking the stolen money out of the safe:

If the burglar is caught inside the safe before he gets away with what he stole, his hand will not be cut off, but he will be punished with another sanction according to what the judge says. This is a mercy and pushing away the suspicion, as the owner of the safe just by seeing someone inside his safe place he may think that he wants to steal from him, while that person might enter the safe place such as a warehouse or a shop for another purpose, other than stealing.

 


3. If the robbed demands his money:

As if he does not do so then the cutting of the hand would not apply, as the Messenger of Allah ((ﷺ said:

“Pardon matters among yourselves that may deserve a Hadd punishment (i.e. If you want to pardon them then do it before you come to me or to the ruler or to the judge), for whatever is raised to me as a case, then the Hadd punishment becomes binding.”

Sahih Abi Dawûd

When Safwân bin Umayya caught a thief stealing from him, he took him to the Messenger of Allah ((ﷺ, then he wanted to forgive the thief. The Messenger of Allah ((ﷺ said:

“Why didn’t you do it before bringing him to me?”

Sahih Abi Dawûd


 

4. What is stolen needs to reach a prescribed figure of money:

If it is less than that, then the cutting of the hand should not be applied.

5. Robbery is to be proven by the testimony of two just men or by the confession of the burglar twice.

6. The thief has taken the stolen secretly:

If he doesn’t take it in secret, then the cutting of the hand should not be applied. For example, if he steals money by oppression in front of people’s eyes or takes it forcibly, then his hand will not be cut off, because the money owner could call the police or ask for help. Also if the thief steals the money out of betrayal, then his hand will not be cut off, for example, if he was entrusted to keep something by borrowing it or by keeping it as a deposit but instead he took it and pretended it was lost or denied having it. And the reason for that is that he already had the safe, so he was permitted to have access to it, and the Messenger of Allah ((ﷺ said:

“There is no cutting of the hand for the traitor, or the thief who steals money by oppression in front of people’s eyes or takes it forcibly, nor the thief who steals unsaved money at inattention of the owner (like if the owner has put money on the table to pay for something, and then the thief sneak to the money).”

At-Tîrmidhi

The Messenger of Allah was ((ﷺ asked regarding the dates which are still hanging on the palm tree, and he said:

"If a needy person eats some dates, but without taking a supply away in his garment, there is nothing on him, but he who takes away some of it he should be fined twice the value and punished. And he who steals any of it (the dates) after it has been put in the place where it is going to be dried (i.e. the warehouse), and it amounts to the price of a shield, he must have his hand cut off."

Sahih Abi Dawûd

Through this narration, we find out that the punishment of cutting the hand off is the ultimate punishment for stealing, and that it is preceded by other punishments like fines and others


 

7. The burglar needs to be sane and adult:

As this punishment, doesn’t apply on the children and the insane because they are not considered capable of bearing the responsibility of their acts yet.

8. The burglar has stolen with his free will:

There is no cutting off the hand for the one who is forced by others to do so, as he is excused.

 

9. To have knowledge of the prohibition:

As there is no cutting for the one who is ignorant of the stealing prohibition, and this is different from the man-made laws which state: “inadmissibility of excuse due to ignorance”. Since if someone commits a crime and does not know that it is a crime, the man-made laws will apply the punishment on him and will not accept his excuse and his ignorance of not knowing that it is a crime. Many travelers, who visit foreign countries for tourism, work or studying, fall into this trap because of their ignorance of the laws of that country


 

10. The burglar was sure while stealing that he has no right over this money:

As Hudûd (punishments) are suspended by doubt, for example, if someone steals something, of which he has some rights. If a father steals money from his son then his hand will not be cut off, and the same thing applies to the grandmothers and grandfathers if they steal from their grandchildren, also if a son steals money from his father, his hand will not be cut off, because usually the son has the ability or the permission to access his father’s money. Also if a husband or wife steals from each other, their hands will not be cut off. If a Muslim steals from the public treasury, his hand will not be cut off, because every Muslim has a right in the public treasury. If a lender steals money from his debtor provided that the debtor denies the debt or is a dilatory debtor, then his hand will not be cut off and he must not take more than his money. Also, if someone steals out of necessity, to save himself from destruction, for example if someone steals out of severe hunger or thirst, then he will not be punished nor has his hand cut off, but this applies as long as the amount he stole equals the amount that could save him from his severe hunger and thirst.

11. The stealer did not retreat his confession of stealing:

If the proof of stealing was his confession, and he retreats it before his hand is cut off, the punishment is cancelled because taking back his confession creates suspicion.