Tafsir of Al-Ma'idah 5:38

This is the beginning of the exposition of the ruling on minor theft, following the exposition of the rulings on major theft. The state of affairs necessitated the introduction of the discourse that was placed between them. According to Sibawayh, the statement consists of two clauses, as the implied meaning is: "Regarding what is recited to you [about] the male thief and the female thief—that is, their ruling." According to al-Mubarrad, it is a single clause. Isa ibn Umar read it with the accusative case (nasb), and Sibawayh preferred it over the reading of the masses due to the command, as "Zayd, strike him" (Zaydan fadribhu) is better than "Zayd, strike him" (Zaydun fadribhu). Al-Zamakhshari said this, and those who followed him, including Ibn al-Hajib, followed suit.

The scholar Ahmad commented on this in al-Intisaf with discourse entirely filled with merits, so there is no harm in quoting it in its entirety. We say: What is gathered from the facets of the recitations is that the masses never agree upon abandoning the most eloquent form, and it is fitting for the Quran to secure the most eloquent forms and not be devoid of what is most eloquent, encompassing the speech of the Arabs whose eloquence none could reach or even touch the fringes of. Sibawayh is far removed from believing that the Quran is devoid of the most eloquent or that it contains irregular readings (shadhdh) that are not considered part of the Quran. We cite a passage from Sibawayh’s speech on this verse so that the listener may perceive Sibawayh’s innocence from the burden of this attribution. Sibawayh said in the chapter on command and prohibition, after mentioning the positions where the accusative is chosen and summarizing them: That whenever the noun is based on the imperative verb, that is a position where the accusative is chosen. Then he said—as if clarifying the distinction of this verse from those where he chose the accusative: "As for His saying, Mighty and Majestic: 'The male thief and the female thief, cut off their hands' and His saying: 'The adulteress and the adulterer, lash each of them,' this was not based on the verb, but it came as an example of His saying: 'An example of the Paradise which the righteous have been promised—in it are rivers...'."

Sibawayh intends to distinguish these verses from the positions where he clarified the choice of the accusative. The aspect of the distinction is that in speech where the accusative is chosen, the noun therein is based on the verb, whereas in these verses, it is not based on it; thus, choosing the accusative is not necessary. He then said: "The example was placed for the narrative mentioned after it." He cited reports and stories, as if he said: "And among the stories is an example of Paradise." It is carried upon this implied meaning, and Allah, may He be exalted, knows best. Likewise, 'The adulteress and the adulterer': When He, whose praise is mighty, said: 'A Surah which We have sent down and which We have ordained,' He said, may He be exalted, among the ordinances: 'The adulteress and the adulterer,' then He came with 'Lash' after the nominative had already passed for them. Sibawayh means the noun was not based on the verb mentioned after it, but rather it was based on an implied preceding [term], and the verb came subsequently. He then said: "Just as it came [in the poetry]: 'And a woman saying: Khawlan, then marry their maiden,' for he brought the verb after the implied [element] had acted upon it." Likewise, "As for the male thief and the female thief," regarding what was ordained for you: "the male thief and the female thief." These nouns only entered after stories and accounts. People have recited "the male thief and the female thief" with the accusative, and it is in Arabic, as I have mentioned to you, of [great] strength. But the masses refused anything but the nominative. He means that the accusative reading arrived with the noun based on the verb, not relying on a predecessor; thus, the accusative was strong relative to the nominative where the noun is based on the verb, not on a predecessor. He does not mean it is strong relative to the nominative where the noun relies on the implied preceding [element], for he has already clarified that this removes it from the category where the accusative is chosen. How then can one understand him as preferring it over [the nominative]? The category and the contexts are different. Preference only occurs after equality in the category. The accusative is preferred over the nominative where the noun is based on the verb, and the nominative is mandatory—I do not say preferred—where the noun is based on preceding speech. Al-Zamakhshari became confused by Sibawayh’s speech because he believed it was a single category for him. Do you not see his saying: "Because 'Zaydan fadribhu' is better than 'Zaydun fadribhu'," how he preferred the accusative over the nominative when the speech in both aspects is based on the verb? Sibawayh has explicitly stated that the speech in the verse with the nominative is based on preceding speech. He then verified this amount by stating that the speech occurs after stories and accounts. Had it been as al-Zamakhshari thought, Sibawayh would not have needed an implication, but rather would have raised it as an initial nominative (ibtida') and made the imperative its predicate, as al-Zamakhshari parsed it. The summary of this is that the accusative is on one aspect: the noun being based on the imperative verb. The nominative is on two aspects: one is weak—the initial nominative—and basing the speech on the verb. The other is highly strong, like the aspect of the accusative, which is raising it as the predicate of an implied initial subject indicated by the context. When two aspects of the nominative contradict each other, one strong and one weak, it is mandatory to carry the recitation on the strong one, as Sibawayh—may Allah have mercy on him and be pleased with him—parsed it.

The fa (particle), if the speech is based on two clauses, is causative, not connective. It is also said to be pleonastic (za'ida), as it is on the weak aspect, for the initial subject (mubtada') entails the meaning of the condition, as the meaning is: "Whoever has stolen, male or female, then cut off..." Some investigators claimed that such a structure is not valid except by one of two things: the addition of the fa—as narrated from al-Akhfash—or the implication of "as for" (amma), because the entry of the fa into the predicate of the initial subject is either for its entailment of the meaning of the condition, or for the occurrence of the initial subject after "as for." Since the first was not [the case], the second became necessary, and what is in that is not hidden. According to the reading of Isa ibn Umar, the accusative is based on the implication of a verb that the explicit [term] explains, and the fa is also—as Ibn Jinni said—due to the meaning of the condition in the speech. Therefore, it was made acceptable with the imperative because it is of its meaning. Do you not see that its response is made jussive for that reason? For the meaning of "Submit, and you will enter Paradise" is "If you submit, you will enter Paradise." The intended meaning—as some commentaries on al-Kashshaf indicate—is: "If you desire the ruling on the male thief and the female thief, then cut off..." This is why it is not permitted to say Zaydan fadarabtuhu ("Zayd, so I struck him"), because the fa does not enter the response to a condition if it is in the past tense. Its implication, "If you desire the knowledge of...", is better than the implication "If you cut off...", because it does not indicate the required obligation. Abu Hayyan said that the fa is in the response to an implied command; meaning: "Be attentive to their ruling, then cut off." It is also said that the fa entered because the right of the explained [item] is to be mentioned immediately after the explanation, like the detailed after the general in His saying, Exalted is He: "So repent to your Creator, and kill yourselves." This is baseless. By what the author of al-Intisaf mentioned, one knows the corruption of what was said: that the reason for the aforementioned disagreement in such a structure is that Sibawayh and al-Khalil require for the entry of the fa into the predicate that the initial subject be a relative pronoun (mawsul) capable of directly accepting the condition particle, while others do not require that. It is apparent that the reason for this is not grasping the intent, so let this be preserved.

Theft is taking the property of another in secret. It only necessitates amputation if the taking is from a place of safekeeping (hirz) and what is taken is equal to ten dirhams or more, along with conditions whose exposition is handled by the branches of jurisprudence. The view of al-Shafi’i, al-Awza’i, Abu Thawr, and the Imami [scholars]—may Allah be pleased with them all—is that the amputation is for what equals a quarter of a dinar or more. Some said: "The hand is not cut except for [the value of] five dirhams," a view chosen by Abu Ali al-Jubba’i. It is said: Amputation is mandatory for small or large amounts, and the Khawarij held this view.

The intent by "hands" is the right hands, as narrated from Ibn Abbas, al-Hasan, al-Suddi, and the generality of the successors—may Allah be pleased with them all. This is supported by the reading of Ibn Mas’ud—may Allah be pleased with him—"their right hands." For this reason, it was acceptable to use the plural in place of the dual, as in His saying: "Your hearts have deviated" (faqad saghat qulubukuma), being content with the dualization of the noun to which it is attached. Thus they said. Al-Zajjaj said: The reality of this category is that that which has only one of it in an object is not pluralized; the term is used in the plural because the possessive connection clarifies it. So if you say, "I satisfied their bellies," it is known that the two have only two bellies. Al-Tibi derived from this the lack of correctness in comparing what is in this verse to what is in the other verse [regarding the hearts], because each thief has two hands, so the plural is permissible, and all the hands could be cut off according to the literal language. Abu Hayyan said the same, but there is contemplation in this, because the evidence has shown that the intended meaning of "the hand" is a specific hand, which is the right one, so it proceeded in the manner of "the heart" and "the back." "Hand" is the name for the entire limb. For this reason, the Khawarij held that the cutting point is the shoulder, while the Imamis hold that it is cut from the base of the fingers, leaving the thumb and the palm, and it is narrated from Ali—may the countenance of Allah be honored—that they also used as evidence His saying, Exalted is He: "Woe to those who write the Book with their hands," for there is no doubt they write it with their fingers. But know that this does not complete the argument for that claim, and the state of their narration is more evident than to be hidden. The majority hold that the cutting point is the wrist. Al-Baghawi and Abu Nu'aym narrated in Ma'rifat al-Sahaba from the hadith of al-Harith ibn Abi Abdullah ibn Abi Rabi'ah that the Prophet—peace and blessings of Allah be upon him—was brought a thief, and he ordered the amputation of his right hand from it.

The addressee by His saying, Exalted is He, "then cut off"—according to what is in al-Bahr—is the Messenger (peace and blessings of Allah be upon him), or the authorities like the Sultan and those permitted to establish the hadd (punishment), or the judges and rulers, or the believers. These are four opinions. The female thief was not included in the male thief by way of dominance (taghlib), as is known in such examples, for the sake of greater care in exposition and exaggeration in deterrence.

"As a recompense" (jazaan): It is in the accusative as a "reason for the act" (maf'ul lahu), i.e., "Cut off as a recompense," as it is a verbal noun, not [a verb] iqta'u from its meaning, or for an implied verb from its root. It is permitted that it be a circumstantial qualifier (hal) from the doer of "cut off," meaning they are recompensed for them.

"For what they earned": On account of their earning, or what they both earned from the theft which is performed by the hands.

His saying, Exalted is He: "As a deterrent" (nakalan): It is also a "reason for the act," as most of the grammarians said. Al-Samin said: It is in the accusative just as jazaan was in the accusative. The first aspect was objected to by saying it is not sound because the "reason for the act" does not multiply without a conjunction, because it is in the meaning of the lam (preposition "for"), so it would be like two prepositions of the same meaning attaching to one agent, which is forbidden. This was defended by saying that the nakal (deterrence) is a type of jaza' (recompense), so it is a substitute for it. Al-Halabi and some investigators said: It was only left without a conjunction to signal that the cutting is for recompense, and the recompense is for deterrence and the prevention of repetition. Upon this, it would be an overlapping reason, like an overlapping circumstantial qualifier, and by this, the objection is also repelled. It is sound. Isam al-Milla said: It was not conjoined because the cause is the combination of both, as in "This vinegar is sour." Jaza' indicates that there is in it a right of the servant, and nakal indicates that there is in it a right of Allah, Exalted is He. What is in this is not hidden, so contemplate it. It is narrated from some grammarians that they permitted the multiplication of the "reason for the act" without a conjunction, and in that case, the question does not arise fundamentally.

His saying, Exalted is He: "From Allah" is attached to an implied [element] that is an adjective for nakalan, meaning: "a deterrence occurring from Him, Exalted is He."

"And Allah is Exalted in Might" in the legislation of deterrence, "All-Wise" in His ordinances and limits. The use of the explicit noun in place of the pronoun is for what has passed more than once.

It is strange that it is reported from Ubayy—may Allah be pleased with him—that he read: wa-l-saraq wa-l-saraqa by omitting the alif and shadda on the ra'. Ibn Atiyyah said that this reading is a misspelling, because al-sariq and al-sariqa were written in the mushaf without the alif. It is said in justifying them that they are the plural of sariq and sariqa, but it is said that this pluralization was not reported in the feminine plural. If it were said that they are forms of exaggeration (sighat mubalagha), it would be closer.

The heretic al-Ma'arri objected to the necessity of cutting the hand for stealing a small amount, saying: "A hand worth five hundred gold pieces—how is it cut for a quarter of a dinar? This is injustice." We have nothing but silence for him, and to seek refuge with our Master from the Fire. Alam al-Din al-Sakhawi answered him—and may his merit be praised—saying: "The majesty of the trust made it precious, and the abasement of betrayal made it cheap; so understand the wisdom of the Creator."

In al-Ahkam by Ibn Arabi, it is mentioned that the recompense for the thief in the law of those before us was enslavement. It is said this was until the time of Musa, peace be upon him, and it was abrogated. According to the first [view], our law abrogates what came before it; according to the second, it confirms the abrogation.