Al-Ma'idah (The Table Spread): Verse 33

Commentary

After mentioning the severity of the sin of unjust killing in the previous verse, the Almighty follows it by clarifying which type of corruption in the land necessitates the death penalty, as some forms of corruption do not warrant it. This is why He states: {Indeed, the recompense of those who wage war against Allah and His Messenger...}

There are several issues concerning this verse:

The Question: Waging war against Allah (God) is impossible. Therefore, the term must be interpreted metaphorically as waging war against the allies of Allah. Waging war against the Messenger (Prophet) is possible, so the term muḥārabah is literal when attributed to the Messenger. If the word is applied to both Allah and His Messenger in the same phrase, it must be either entirely metaphorical or entirely literal, which is impossible. This is the core of the question.

The Answer (Two Views):

1. We interpret muḥārabah as opposition to divine command and legislation. The meaning is: "The recompense for those who oppose the rulings of Allah and His Messenger and spread corruption in the land is such and such."
2. The intended meaning is: "Indeed, the recompense for those who wage war against the allies of Allah and the allies of His Messenger is such and such." It is reported that Allah Almighty said: (Whoever insults one of My saints (awliyā'), he has declared war against Me.)

Some scholars hold that this threat is specific to disbelievers (Kuffār), while others say it applies to sinful believers (Fussāq).

Arguments for Specificity to Disbelievers:

1. The Incident of the 'Uranah Tribe: The verse was revealed concerning a group from the 'Uranah tribe who came to Madinah professing Islam. They fell ill, and the Prophet (PBUH) sent them to the charity camels to drink their milk and urine for recovery. Once healthy, they killed the shepherds, seized the camels, and apostatized. The Prophet (PBUH) sent men after them, and upon capture, their hands and feet were cut off from opposite sides, their eyes were gouged out, and they were left to die. This verse then descended, abrogating the Prophet's action, making that Sunnah superseded by this Qur'anic ruling. (Al-Shafi'i noted that since the Sunnah cannot be abrogated by the Qur'an, this Qur'anic ruling must have corresponded to a subsequent abrogating Sunnah.)
2. The Incident of Abū Barzah al-Aslamī's Companions: The verse was revealed concerning people related to Abū Barzah al-Aslamī, who had pledged allegiance to the Prophet (PBUH). Some people from the Kinānah tribe, intending to embrace Islam, passed by while Abū Barzah was absent. They killed them and took their wealth.
3. Reference to Israelites: The verse refers to those Israelites whom Allah recounted as being excessive in aggressive killing and spreading corruption on earth, even after the severe punishment of capital punishment was prescribed for intentional homicide.

Arguments for Application to Muslims (The Majority View of Jurists):

1. Apostasy (Riddah) Penalty: The penalty for an apostate does not depend on "waging war" or openly spreading corruption in the Abode of Islam, whereas the verse implies these conditions.
2. Incompleteness of Penalty: The penalty for an apostate cannot be limited only to cutting the hand/foot or exile; the verse implies these limited options are sufficient.
3. Repentance Clause: The verse mentions exemption through repentance before being apprehended: {Except for those who repent before you have power over them} (Al-Ma'idah: 34). An apostate's penalty is dropped by repentance both before and after apprehension, indicating this verse is not solely about apostates.
4. Crucifixion: Crucifixion is not legislated for an apostate, but it is prescribed here.
5. Generality of Wording: The description {those who wage war against Allah and His Messenger and strive after corruption in the land} encompasses everyone described by these attributes, whether a disbeliever or a Muslim. Even if the verse was revealed concerning disbelievers, the ruling is derived from the generality of the wording, not the specificity of the occasion.

The "wagers of war" mentioned here are those who gather together and possess strength/power (man'ah), meaning they protect each other and target Muslims' lives and blood.

The consideration of strength and power distinguishes the highwayman (qāṭi' al-ṭarīq) from the common thief.

• Consensus: If this activity occurs in the open desert, they are highwaymen.
• Dispute over Urban Areas:
  • Al-Shafi'i: If this occurs within a city, they are still spreading corruption and receive this prescribed penalty. He argues that their crime in the city is at least equal to, if not greater than, in the desert.
  • Abū Ḥanīfah and Muḥammad: If this occurs within a city, this specific penalty is not applied.

Arguments:

• Shafi'i's Proof: (1) The general text of the verse covers this situation wherever it occurs. (2) By analogy (qiyās), this is a fixed penalty (ḥadd), and fixed penalties do not differ between urban and non-urban settings, unlike other penalties.
• Abū Ḥanīfah's Proof: Those inside a city usually receive aid quickly, preventing sustained fighting, thus reducing their status to that of a common thief.

Scholars have two main views regarding the word {or} in the listing of penalties:

1. Discretionary Choice (Takhyeer): This is the view of Ibn 'Abbās (in one narration), Al-Ḥasan, Sa'īd ibn al-Musayyab, and Mujāhid. It means the Imām (ruler) has the choice: kill them, or crucify them, or cut their hands/feet, or exile them.
2. Specification Based on the Crime (Bayān al-Ikhtilāf): This is the view of the majority of scholars, including Al-Shafi'i. The word aw clarifies that the penalty varies according to the specific transgression committed:
   • If they only killed, they are killed.
   • If they killed and seized wealth, they are killed and crucified.
   • If they only seized wealth (while intimidating), their hands and feet are cut off from opposite sides.
   • If they only intimidated travelers without taking wealth, they are exiled from the land.

Evidence Weakening the First View (Discretionary Choice):

1. If the intent was pure discretion, the Imām should be permitted to apply only exile. However, there is consensus that he cannot limit the punishment to exile alone.
2. If the highwayman neither killed nor took wealth, he merely intended the sin without committing it. This intention alone does not warrant death, just as intending other sins does not warrant capital punishment. Therefore, the verse cannot mean pure discretion.

Conclusion: The implied structure is: they are killed if they kill; they are crucified if they combine killing and seizing wealth; their hands/feet are cut off if they limit themselves to seizing wealth; or they are exiled if they only intimidate travelers.

This aligns with analogy: Intentional aggressive killing warrants killing. For highwaymen, this is intensified, making killing mandatory (no pardon). Seizing wealth normally entails cutting the hand; for highwaymen, it is intensified to cutting both limbs. If they combine killing and seizing wealth, they receive both killing and crucifixion. Keeping the body crucified in the public way serves as a deterrent. If they only intimidate, the punishment is light: exile.

• Abū Ḥanīfah: If they kill and seize wealth, the Imām has a choice among three options: (1) Kill them only; (2) Kill them and cut their hands/feet before killing; or (3) Kill them and crucify them.
• Al-Shafi'i (and Abū Yūsuf): Crucifixion is mandatory.

Shafi'i's Proof: Allah explicitly mentioned crucifixion just as He mentioned killing; therefore, dropping crucifixion is not permissible, just as dropping killing is not permissible.

• Difference in Crucifixion Method: Some say they are crucified alive and then pierced with a spear until death. Al-Shafi'i said: They are killed first, then crucified (as a form of display/shame).

• Al-Shafi'i, Aḥmad, and Isḥāq: If these highwaymen are found, they are killed, crucified, and have their limbs cut off. If they are not found, they are sought perpetually until apprehended, at which point the prescribed penalty is executed.
• Abū Ḥanīfah (and most linguists): Exile means imprisonment (Ḥabs).

Arguments for Imprisonment:

1. Exiling them from all the earth while keeping them alive is impossible.
2. Exiling them to another town is impermissible, as the goal is to remove their harm from Muslims; moving them only harms the Muslims in the new location.
3. Exiling them to the Abode of Disbelief is impermissible, as it exposes a Muslim to the risk of apostasy.
4. Since the other options are invalid, "exile from the land" must mean confinement to a place of imprisonment. A prisoner is considered "exiled from the land" because he is deprived of the world's pleasures and cannot see his loved ones, thus being exiled from all delights and desires—a true state of exile. (Poetry cited regarding a prisoner's feeling of separation from the world.)

Shafi'i's View on Exile: This exile has two aspects:

1. If they kill and seize wealth, and are apprehended, the ḥadd is applied. If not apprehended, they are sought perpetually; their state of being fugitives, moving from place to place, is the intended exile.
2. For those who participate by intimidating but neither kill nor steal wealth: If apprehended, the Imām applies the prescribed penalty (which Shafi'i interprets as ta'zīr [discretionary punishment], imprisonment, and confinement). In this case, their "exile from the land" means this imprisonment and no more.

The Almighty states that this penalty is a khizy (disgrace/humiliation) in this world, and they have a great punishment in the Hereafter.

The Mu'tazilah Argument: This verse proves that sinful Muslims (those who pray) are definitively subject to divine threat (wa'īd). It also proves that their killing (if they are executed under this ruling) nullifies their previous rewards, because Allah decreed that this outcome is disgrace in both worlds, indicating they deserve blame now. Deserving blame in the present prevents them from deserving praise and veneration, as that would mean combining two opposites. Thus, the doctrine of definitive threat against sinful believers and the nullification of their deeds is established.

The Response (Refutation): There is no dispute that this penalty is inflicted as disgrace and humiliation if repentance does not occur. However, if repentance occurs, this penalty is not inflicted as disgrace but as a test/trial (imtiḥān). If you (Mu'tazilah) are permitted to stipulate the condition of non-repentance for this worldly disgrace based on textual evidence, then we also stipulate the condition of non-forgiveness (i.e., no repentance). The debate then reduces to whether the evidence indicates that Allah forgives sinful believers or not, a matter we have discussed exhaustively in Sūrat Al-Baqarah regarding the verse: {Yes, whoever earns an evil and is encompassed by his sin—those are the companions of the Fire, they will abide therein eternally.} (Al-Baqarah: 81).