I mentioned last week that bill drafters aiming at implementing Islamic laws faced a number of problems. One of these was to determine what stolen property qualifies for the implementation of the mandatory punishment, defined in the Qur’anic verse: “As for the man or the woman who is guilty of stealing, cut off their hands in requital for what they have wrought, as an exemplary punishment ordained by God. God is Almighty, Wise.” (5: 38) The problem facing the bill drafters focused on finding answers to two basic questions:
1. Is it necessary for implementing the mandatory punishment that the stolen property should be safely kept in a particular place at the time when it is stolen? This is known as ‘property security’.
2. Should the stolen property have a minimum value for the punishment to be enforced? In other words, should the punishment apply in any case of theft, no matter how small the value of the stolen property may be? This question determines whether there is a threshold for the specified punishment to apply.
The first question is based on people’s tradition which ensures that they keep their property in a suitable and safe place, according to the nature of the property. The place is given the name hirz by scholars, particularly when they speak of the suitability of the place where a particular item is kept. It should be a place where people normally keep such property.
Certain authentic Hadiths distinguish between theft offenses on the basis of where the stolen property is kept, and whether it was, at the time of stealing, where it is normally kept, or in a different place. Scholars differ widely in their views with regard to what may be considered a safe place for keeping a certain property. The correct view is that common practice in a particular time and community determines whether a place is suitable for the safe keeping of a particular property or not. It is on this basis that we may accept a particular view on any of the questions subject to disagreement among scholars with regard to keeping property, such as theft from the public treasury, public places, mosques, etc. In each one of these questions we should uphold what tradition and common practice accept as a safe place for keeping a particular type of property. Thus, legislation and legal provisions must follow common practice, not a particular legal view.
When we speak of tradition, we mean what is commonly accepted. An individual’s habit, consistent as it may be, is immaterial, even though it is the habit of the owner of the stolen property.
The laws and the bills we mentioned last week as having been enacted or drafted in some Arab countries were found liable to objection in certain aspects. One of the most important of these was that they followed some old views barring the administration of the theft punishment on a person who steals from the public treasury or public places, if he works there or has a special permission to enter them. But the opposite view is the correct one here: a thief who steals public property is no less liable to punishment than one who steals from other individuals. Indeed the former may be more deserving of punishment than the latter. A person who works in a public office or has permission of entry is in a position of trust which requires him to safeguard the property of the state or the public in that office. To steal such property adds to the crime of theft another crime of being untrue to the trust placed in an employee or in a good citizen. As such, it requires an even stronger punishment, not a lighter one.
Let us now look at the threshold required for the crime of theft to be deemed committed. This establishes a minimum value for the stolen property. If this value is exceeded, then the punishment of theft may, or must, be inflicted, provided that other conditions for the establishment of guilt are met. Differences on this point arise from how scholars have understood certain Hadiths and practices by the Prophet, or from whether certain other Hadiths are classified as authentic or not.
What is authentically established is that the Prophet did not allow that the mandatory punishment specified in the Qur’an for theft be applied in every case of theft. He made it clear that certain conditions must apply, including that the value of what is stolen should be no less than one quarter of one dinar, or three dirhams. (A dinar was the gold currency at the time, while the dirham was the silver currency. The two sums are more or less equal.)
A careful consideration of these Hadiths and the differences of scholars in this regard confirms that they aim to prevent the application of the mandatory punishment when the stolen property is too small to deserve it. Hence, all schools of Islamic Fiqh agree that the punishment may not be applied for stealing something of little value, which normally people forgo.
When we take into account that the money value differs from time to time and place to place, we realize that the value of what is too small to merit the mandatory punishment similarly differs. It is subject to the prevailing economic and social conditions on the one hand and people’s traditions applicable at the time on the other. Imam Ibn Al-Qayyim considers that the value of a quarter of one dinar was set by the Prophet on the basis that it was at the time sufficient to provide food for an average family for one whole day. People normally do not forgo such an amount.
This is a correct understanding which requires that the level of the threshold of theft should be revised from time to time, according to changes in money value and economic and social conditions. It is not right to take what was established long time ago by Islamic scholars without considering whether it is suitable for our times or not. Hence, we criticized the two Egyptian bills, one drafted by Al-Azhar and the other by the late Dr Ismaeel Ma’atooq, a former member of the Egyptian parliament. Our criticism was based on several considerations:
1. They uphold a view which is not well supported by authentic Sunnah;
2. Despite adhering to the same school of Islamic Fiqh, they differed in fixing the minimum value of the stolen property to qualify for the mandatory punishment. One of them considers this amount to be 2 grams of pure gold, while the other fixes it at 4.457 grams of pure gold. Both consider that these two amounts are equivalent to 10 dirhams according to the Hanafi school of law.
3. Both seek to fix the minimum value according to a metal whose value is likely to fluctuate. Not all stolen property consists of gold. Indeed the vast majority of theft cases involve other types of property, which the two bills require to be evaluated in relation to the value of the stated amount of gold, which is subject to daily fluctuations. This involves too many difficulties.
It is more appropriate for legislators who seek to implement Islamic law that they should look, in such questions, to the purpose behind any Islamic ruling. They must not limit themselves to the views of earlier scholars, which might have been highly suitable in their own times, but may not suit our time. Indeed, these views were not binding on them; otherwise they would not have differed. Similarly, they are not binding on us.