Is the claim or demand by the owner necessary for the application of the cutting penalty for theft?
Chapter on Amputation in Theft
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The claim or demand by the owner is not required for the application of the cutting penalty. This position is held by Abu Hanifa, Al-Shafi'i, Abu Bakr, Malik, Abu Thawr, and Ibn al-Mundhir. The evidence cited is the general nature of the relevant Quranic verse, and the reasoning is that the cause necessitating the cutting penalty has been established, so it must be applied without a specific demand, similar to the penalty for Zina (adultery/fornication). Furthermore, the stolen property may have been permitted (mubah) by the owner through expression of allowance (bathl), or dedication to the Muslims, or to a specific group of thieves, or the owner may have permitted entry into the secured area; therefore, a demand is required to remove this ambiguity. This contrasts with Zina, which is not invalidated by such permission.
Supporting text
The opposing view mandates a claim because the property may have been permitted by the owner, or dedicated to the Muslims, or the owner may have authorized entry into the security, thus the claim is necessary to eliminate this doubt. Moreover, the cutting penalty is more easily waived (as seen when one steals from one's father, the penalty is waived, whereas Zina is penalized even if committed with one's own maidservant), and since the cutting penalty is legislated for the protection of a private individual's wealth, the claimant has a connection to it, so it cannot be fully executed without the claimant present to demand it. Zina, conversely, is purely a right of God (Haqq Allah) and does not require a specific demand.