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The Upper limit

May 27, 2020

  1. Upper limit
  2. The punishment of theft: As to the thief, male or female, cut off his or her hands [fa-ata’u] [aidiyahuma]: a punishment by way of example [nakalan], from God, for their crime—God is exalted in power. But if the thief repents after his crime, and amends his conduct, God turns to him in forgiveness; for God is oft-forgiving, most merciful. (Ma”ida:38–39)

Common wisdom has it that Islam is a harsh religion that forbids leniency in cases of theft and demands extreme cruelty against any convicted thief. The truth is that the two verses of Surat Ma”ida reflect the flexible character of Islamic legislation that encourages us to mitigate every single case of theft and thus disproves the unmediated application of harsh penalties.

Most civilizations in the world possess legal systems in which a process of mitigation is a normal procedure. Mitigation means that judges move—by way of deciding each case differently and on its own merits—between the limits that Allah has set. It shows that the proposed type of a Lex liminalis is a universal, human, and civil form of legislation.

The central clue to the existence of a law of limits in verse 38 is given in the accusative noun nakalan, which translates as ‘exemplary punishment’ or ‘punishment as a deterrent’. Allah has set a condition by which the thief ’s hand shall be cut off: its aim should be a warning so that the crime will not be repeated. This means that the punishment has a social pedagogic function; it is not a merciless revenge of a crime. As such, it can only be exercised in the most extreme cases of theft; it is the upper limit of punishments that cannot be transgressed; cutting off the thief ’s hand is the most extreme form of exemplary punishment (thus, thieves cannot be executed).

The existence of limits in the theft-verse (representing an upper limit and no lower limit) is reflected in the fact that theft was differently punished in early Islam. The hadiths tell us that even though Muhammad applied the hadd-punishment, that is, he ‘moved’ to the upper limit, Umar bin. al-Khattab, in his capacity as the second caliph, avoided the upper limit and used his ijtihad to circumvent the most severe form of punishment. It is indeed the responsibility of each mujtahid, following the example of Umar, to determine which type of theft is so severe that it requires the cutting off of hands, and what type does not.

The fact that verse 38 does not want us to show mercy and compassion indicate that it discusses only the most extreme forms of theft, while for normal types of theft we are required to show mercy. In normal cases of theft, the rationale for a punishment is to prevent its repetition, and this can be done in different ways, such that one does not have to come near the upper limit (amputation).

The verb used for ‘to cut off’ is the Arabic term q-t-a‘  which, as the dictionary of Ibn al-Faris shows, has more meanings than the physical amputation of hands. In phrases like ‘to cut a corner’, ‘to cut a long story short’, ‘to cut off a relationship, or ‘to cut down expenses’, the verb ‘to cut’ is used both literally and metaphorically; and it does not always require a knife or a sword to cut something off. ‘amputation’ (for which, incidentally, the Arabic language has an entirely different term, which is al-batr).

The common understanding that q-t-a‘ means ‘to cut off ’ the left hand of a thief (bizarrely not his right hand!), contradicts the quoted verse, which clearly uses the plural ‘hands’: (‘his or her hands [aidiyahuma]’), indicating that the best way to keep a thief ’s hands(!) off society is to send him or her to prison. Surely, to cut off both hands of a thief would be a barbarity that not even the most scrupulous  fuqaha” have ever contemplated.

A clear mistake by the jurists was to associate q-t-a‘ with a complete amputation (batr) of the entire (one) hand.  the expression ‘to cut the thief ’s hand’ cannot be interpreted as ‘amputation by knife or sword’. Instead, we must consider alternative forms of punishments, such as imprisonment, which equally deters convicted thieves to ‘put their hands’ on items that they might steal. Imprisonment also allows society to release fully rehabilitated criminals back into society unharmed, thus fulfilling God’s command to forgive and show mercy in the face of a thief ’s repentance and remorse:

But if the thief repents after his crime, and amends his conduct, God turns to him in forgiveness; for God is oft-forgiving, most merciful. (Ma”ida:39) Unlike a merciless, indiscriminate revenge for theft by corporal punishment, the possibility of imprisonment permits judges to impose different penalties that take the seriousness of each act of theft into consideration. In serious cases, such as stealing intelligence through espionage or embezzling money on the corporate or state level, the judge might interpret this as a serious threat to national security and our economy and impose the maximum sentence.

But if the theft is of a much smaller scale, a lesser sentence will be more appropriate, and convicted criminals could be released from prison on parole if they no longer pose a threat to their community and society as a whole. None of this flexibility is, however, possible if sentences stipulate an indiscriminate amputation of the thief ’s hand, regardless of how serious the crime is and regardless of the circumstances in which it takes place. It has become the norm in most legal systems today that one should not go to the extreme and cut off the thief ’s hand.

Given that, in referring to a thief, the Book always uses the active participle sariq (‘the one who steals’), referring to someone who is still actively engaged in criminal activities in contrast to someone who has profoundly repented of his crime, we should seriously reconsider our current understanding of theft and adopt a more flexible stance towards it (which, we believe, a well-organized prison system can clearly provide).

  1. The punishment for ‘corruption in the land’ and ‘war against God’:

Those who wage war against God and His Messenger and strive to spread corruption in the land should be punished by death, crucifixion, the amputation of an alternate hand and foot, or banishment from the land… (Ma”ida:33) Except for those who repent before they fall into your power: in that case, know that God is oft-forgiving, most merciful. (Ma”ida:34) Clearly, Allah provides us with the most extreme forms of punishment that determine the upper limit of what judges can impose on the enemies of God and His Messenger.

But in light of what we said, that we must not criminalize those ‘who cut off their ties with God’, as they enjoy their human right to do so, we cannot interpret the phrase ‘those who wage war against God and His Messenger’ as a reference to atheists and freethinkers, and ‘corruption in the land’ is not a reference to peaceful opposition to despotic regimes or, for that matter, to any political authority.

Instead, those who wage war against God are those who disrespect freedom of opinion, freedom of expression, and freedom of religion, while ‘corruption in the land’ is a reference to the corruptive practices in the political administrations of this world, to vandalism and anti-social behavior by thugs and street gangs, and to the pollution of the environment by irresponsible big business tycoons.

Note, however, that He also provides several options, and it is up to the mujtahids to decide, in the concrete historical context, which penalty is the most appropriate for each crime. Note also that in 5:34, following the list of possible punishments in 5:33, God wants to open the ‘gate of forgiveness’ by stressing the possibility of repentance for the sinners ‘before they fall into your power’. Such a condition implies that the sinner’s repentance should occur before any arrest or other forms of intimidation (e.g., torture) take place, allowing time and opportunity for forgiveness on the part of those who prosecute the offender.

Since there are three types of punishment mentioned in the verse it indicates that God leaves the decision to human legislators, and since imprisonment is currently the most applied form of punishment, we should accept this as the most sensible way to punish criminals. It is not a sin to stay below the application of the upper limit. Only in the most severe cases of ‘war against God’ and ‘corruption in the lands should judges consider the application of the upper limit.

  1. Homicide and physical harm:

Nor take life—which God has made sacred—except for just cause. And if anyone is slain wrongfully, we have given his heir authority (to demand qisas or to forgive): but let him not exceed bounds in the matter of taking life; for he is helped (by the law). (Isra”:33). O you who believe! The law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, the woman for the woman. But if any remission is made by the brother of the slain then grant any reasonable demand and compensate him with handsome gratitude; this is a concession and a mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty. (Baqara:178).

Once again, the Book only mentions the upper limit: the most extreme punishment for taking a human life. Verse 33 of Surat al-Isra” refers to the punishment of ‘wrongful killing’, defined as an unjust act of unprovoked aggression and disproportionate brutality, but warns ‘not to exceed bounds in this matter’. It is thus forbidden to punish, in addition to the killer, his or her family, clan, and tribe, since excessive, revengeful punishment violates the principle of Lex talionis and means that those who impose a penalty have overstepped the upper limit. Mujtahids will be required to clarify the degree of aggression, brutality, and premeditation that would justify the maximum penalty (death), and to distinguish this type of murder from unintentional killing or killing in self-defense for which life-long imprisonment might be the most appropriate punishment.

We notice again the possibility of repentance that is built into verse 178 of Surat Baqara: ‘but if any remission is made by the brother of the slain, then grant any reasonable demand, and compensate him with handsome gratitude’. As for the crime of killing a person by mistake, several different punitive actions are possible, depending on the social, ethnic, and geographical identity of the victim. Verse 92 of Surat Nisa” mentions a lower limit, consisting of ‘a fast for two consecutive months’ or the ‘freeing of a slave’, but one may free more than just one slave (or the equivalent of money through personal accident insurance policies):

in (Nisa”:92) Two types of penalties should be distinguished: the first is with regard to the family of the victim, to which the convicted killer must pay a certain amount of ‘blood money’. The second is with regard to the killer himself, whose atonement must consist of freeing a slave or, if he or she cannot afford this, of fasting for two consecutive months.

Note that ‘freeing a slave’ has a wider meaning and does not just mean slavery in the conventional sense. It encompasses all forms of (modern) slavery. If a convicted killer liberates someone from the bondage of his or her financial debts, this would be accepted as a modern equivalent to ‘freeing a slave’. This idea is supported by verse 60 of Surat Tawba, which identifies ‘those in slavery’ as those who receive charity (alsadaqa), and verse 177 of Surat Baqara which mentions financial help for the ‘enslaved’ even before it mentions the duties of prayer and zak§h. In sum, the lower limit of atonement is freeing at least one ‘financially enslaved person’. If one can afford it, one should release more than one. If one cannot afford to free even one, a two-month fast is the absolute minimum for the reparation of the crime.