Tafsir of Al-Ma'idah 5:38

Tafsir of Surah Al-Ma'idah (5:38)

Verse: وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِّنَ اللَّهِ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ

Translation: "As for the thief, male or female, cut off their hands as a recompense for what they have earned, an exemplary punishment from Allah. And Allah is All-Mighty, All-Wise."

There are two main views regarding the connection of this verse to the preceding one:

1. First View: Since the preceding verse mandated cutting off hands and feet for those who wage war (commit hirabah), this verse clarifies that theft also necessitates the cutting off of hands and feet.
2. Second View: After mentioning the gravity of murder (where saving one life is like saving all humanity), Allah follows this by mentioning other grave offenses that permit severe punishment:
   • First: Highway robbery (hirabah).
   • Second: Theft (sariqah).

Issue 1: Grammatical Status of "The Thief and the Thief" (السَّارِقُ وَالسَّارِقَةُ)

Grammarians differed on the case marking (nominative/accusative) of these words:

• View 1 (Sibawayh and Al-Akhfash): They are in the nominative case (Raf' - مرفوع), functioning as the subject (mubtada'). The predicate (khabar) is omitted, with the implied meaning being: "Regarding what is recited to you, the thief and the female thief—their ruling is thus." This same structure applies to verses like "The adulteress and the adulterer, flog each of them" (24:2) and "Those two [men] who commit it among you, then punish them" (4:16).
  • Note: 'Isa ibn 'Umar recited them in the accusative case (Nasb - منصوب), similar to how Sibawayh preferred the accusative in "Zaidan, strike him!" over "Zaidun, strike him!" Sibawayh argued that the fa' (in faqṭa‘ū) cannot be the predicate of the subject (mubtada').

• View 2 (Al-Farra', Al-Zajjaj): The nominative case (Raf') is preferable to the accusative. The definite article al- (in al-sāriq) acts like the relative pronoun alladhī (who/that). The implied meaning becomes: "Whoever steals, cut off his hand." In this structure, adding the fa' to the predicate (faqṭa‘ū) is appropriate because it becomes the consequence (jazā') of the condition. Furthermore, the accusative case is only suitable if referring to a specific thief, whereas the nominative case is used to establish this ruling generally for everyone who commits the act. This view is adopted by Al-Zajjaj and is considered the authoritative one.

Evidence that the verse implies Condition and Consequence:

1. Allah explicitly states: "as a recompense for what they have earned" (jazā'an bimā kasabā). This proves cutting is a consequence (jazā') for the act of theft, so the consequence must be general because the condition (theft) is general.
2. Theft is a crime, and cutting is a punishment. Linking punishment to crime is appropriate, and mentioning the ruling immediately after the description implies the description is the effective cause ('illah).
3. If we interpret it as applying to a specific thief, the verse becomes vague and uninformative. Interpreting it generally makes the verse beneficial, so the general interpretation is preferred.

Refutation of Sibawayh's View (favoring the Accusative):

1. It contradicts the established, continuously transmitted reading (tawātur) from the Prophet (PBUH) and the entire Ummah. Even if one argues the nominative reading is permissible but the accusative is better, preferring a reading not transmitted by 'Isa ibn 'Umar over the reading of the Prophet and the Companions is unacceptable.
2. If the accusative reading were superior, some reciters would have read "Those two [men] who commit it among you..." (4:16) in the accusative, but no one did, proving this view is flawed.
3. If we assume the nominative words are the subject and the predicate is the omitted phrase ("their ruling is thus"), what does the fa' in faqṭa‘ū relate to? If they say the fa' relates to the implied verb ("If he steals, then cut off his hand"), then they should have stated the condition first ("Whoever steals...") instead of using the implied structure.
4. The accusative reading does not clearly indicate that theft is the cause for cutting, whereas the nominative reading does, a meaning reinforced by jazā'an bimā kasabā.
5. Sibawayh argued that importance dictates order. The nominative reading prioritizes mentioning the thief's status first, suggesting the primary focus is on the thief's condition. However, the main purpose of the verse is to condemn theft and strongly deter it. Therefore, the nominative reading, which emphasizes the act leading to the consequence, is definitively required.

Issue 2: Ambiguity (Ijmāl) in the Verse

Many exegetes and Usulists argue this verse is ambiguous (mujmal) in several ways:

1. The Amount Stolen: The ruling is tied to theft, but theft in general does not mandate cutting. A specific minimum amount (niṣāb) must be stolen, but this amount is not mentioned in the verse.
2. Which Hand(s): The verse mandates cutting the hands (al-aydi - plural), but it doesn't specify which hand (right or left). Consensus holds that both hands are not cut simultaneously.
3. Definition of "Hand": The word yad (hand) can refer only to the fingers, or fingers plus the palm, or up to the elbow, or up to the shoulder. Since the specific extent is not mentioned, the verse is ambiguous.
4. Who Executes the Punishment: The command faqṭa‘ū (cut off) is addressed to a group. It could mean the entire community, a specific faction, or the ruler of the time (as the majority holds). Since the specific executor is not named, the verse is ambiguous.

Counter-Argument (The Verse is Not Ambiguous):

Those who hold the verse is not ambiguous argue:

• As established, al-sāriq implies alladhī sarq (whoever steals), and the fa' implies consequence (jazā'), confirmed by jazā'an bimā kasabā. This means the essence of theft is the basis for the ruling, which must apply generally unless a separate proof restricts it.
• Regarding "hands" (al-aydi): While the term is general, the consensus that both hands are not cut, nor is the left hand cut first, restricts this generality.
• Regarding the definition of "hand": We assert that yad linguistically refers to the limb up to the shoulder. Evidence is Allah's command in the verse on ablution: "wash your faces and your hands up to the elbows" (5:6). If the term yad did not include the forearm, specifying "up to the elbows" would be unnecessary. Therefore, the apparent meaning suggests cutting from the shoulder (as the Khawarij believe), but this is abandoned due to separate evidence.
• Regarding who executes: The apparent meaning is that the command is addressed to everyone, but separate evidence restricts its application to the Imam/ruler, leaving it applicable in all other contexts.

Conclusion: The verse is general, restricted by separate proofs in specific cases, which is preferable to declaring it entirely ambiguous and thus useless.

Issue 3: Conditions for Cutting (The Niṣāb and Ḥirz)

The majority of jurists state cutting is required only under two conditions:

1. The value stolen reaches the niṣāb (prescribed minimum amount).
2. The theft occurred from a ḥirz (a secure place where valuables are normally kept).

Opposing View (Ibn 'Abbas, Ibn al-Zubayr, Al-Hasan al-Basri, Dawud al-Isfahani, Khawarij): The amount (niṣāb) and the ḥirz are irrelevant. Cutting is mandatory for stealing a small or large amount, whether taken from a secure place or not, based on the generality of the verse.

Argument for Restriction (Majority View): If we were to restrict the general meaning of the Quran based on a single, uncorroborated report (khabar wāḥid) or analogy (qiyās), it would be impermissible. The majority argues that the term "theft" (sariqah) is a linguistic term, and by necessity, native speakers do not call the taking of a single grain or a small crumb "stealing one's wealth." Theft implies secretly taking something the owner values highly enough to guard it jealously. This necessity leads to requiring the taking from a ḥirz, as items not secured do not require stealth to take.

Dawud's Response: He agrees that cutting is not required for a single grain, but only for the smallest item over which people feel possessiveness (shuhḥ). Since the measure of "small" vs. "large" is subjective (a rich man might value a large sum little, while a poor man values a small coin highly), the ruling must be based on the minimum item considered property. He argues that if we accept the cutting for a small amount (like a single coin, ṭusūjah), we must accept it for all amounts, even if critics claim it is disproportionate to the value of the hand (500 dinars). The answer is that the punishment is for the baseness of the act, not the value stolen. Since this justification works for all amounts, it should work for the small ones too. He further argues that the conflicting reports regarding the niṣāb (quarter dinar, ten dirhams, three dirhams) invalidate using khabar wāḥid to restrict the Quran's generality, forcing a return to the apparent meaning of the Quran.

The Majority Jurists' Positions on Niṣāb:

• Al-Shafi'i: Cutting applies from a quarter dinar upwards; other items are valued against this standard.
• Abu Hanifa & Al-Thawri: Cutting applies for less than ten struck dirhams; other items are valued against this standard.
• Malik & Ahmad & Ishaq: Three dirhams or a quarter dinar.
• Ibn Abi Layla: Five dirhams.

Shafi'i's Proof: The verse implies cutting for small and large amounts. Since jurists agree cutting is not required below a quarter dinar, it must apply from a quarter dinar upwards, supported by the report: "No cutting except for a quarter dinar."

Critique of Abu Hanifa's Proof (based on "price of a shield"): This is weak because (1) the price of a shield is unknown, so restricting the Quran with an unknown report is impermissible. (2) If the shield's price equals ten dirhams, this restriction covers a larger portion of potential thefts than the restriction based on a quarter dinar, making the latter preferable.

Issue 4: Repetition of Theft and Subsequent Punishments

• Al-Shafi'i: For the first theft, the right hand is cut. For the second, the left foot. For the third, the left hand. For the fourth, the right foot.
• Abu Hanifa & Al-Thawri: Cutting is not performed for the third or fourth offenses.

Shafi'i's Proof:

1. Theft is the cause ('illah) for cutting, as indicated by the fa' in faqṭa‘ū (implying consequence). Since the cause (theft) exists in the third instance, the consequence must follow. The first cutting was due to the first theft, so the third theft must necessitate a new cutting.
2. Allah said, "cut off their hands" (aydi-himā), which is a plural form, minimally implying three hands. Since this general meaning was initially restricted (by cutting only one hand first), the remainder of the plural meaning should apply upon the third offense.

Rebuttal to the reading "cut off their right hands" (aymānahumā): This reading (attributed to Ibn Mas'ud) is an anomalous reading (qirā'ah shādhdhah) and is treated like a single uncorroborated report, which cannot invalidate a continuously transmitted (mutawatir) reading. Furthermore, anomalous readings are not considered Quranic text because if they were, they would have been transmitted by tawātur.

Issue 5: Combining Cutting and Restitution (Dhamān)

• Al-Shafi'i: The thief must both have his hand cut and pay restitution for what he stole.
• Abu Hanifa, Al-Thawri, Ahmad, Ishaq: Cutting and restitution are mutually exclusive. If he pays restitution, there is no cutting; if he is cut, there is no restitution.
• Malik: He is cut in all cases. Restitution is required if he is wealthy, but not if he is poor.

Shafi'i's Proof: The verse mandates cutting due to theft, and the Hadith "(The hand is responsible for) what it takes until it is returned" mandates restitution. Since both obligations arise from this single act of theft, both must be enforced. Furthermore, a Divine punishment (ḥadd) does not negate the rights of individuals (ḥuqūq al-'ibād), evidenced by the combination of penalty and compensation in hunting game owned by others, and by the consensus that if the stolen item still exists, it must be returned.

Abu Hanifa's Proof: Allah described the cutting as **"a recompense" (jazā')**, implying it is sufficient for the crime of theft. If it is sufficient, restitution should not be added.

Rebuttal: If this were true, returning the item when it still exists would not be required, which contradicts consensus.

Issue 6: Execution of the Punishment on Slaves

• Al-Shafi'i: The master (sayyid) has the right to execute the ḥadd penalty on his slaves.
• Abu Hanifa: The master does not have this right.

Shafi'i's Proof: The command "cut off their hands" is general and includes everyone, as there is no indication it is restricted to certain people. Since the command is general, it applies to the master as well. If the ruling is restricted for the general populace (requiring the Imam), it should remain applicable to the master, who is not explicitly excluded.

Issue 7: Necessity of Appointing an Imam

The Theologians use this verse to argue that the Ummah must appoint a specific Imam:

1. Allah mandated establishing the ḥudūd (prescribed punishments) for thieves and adulterers in this verse.
2. Someone must be addressed by this command.
3. The Ummah has reached consensus that individual subjects cannot execute ḥudūd on free criminals; only the Imam can.
4. Since this is a binding obligation that cannot be fulfilled except through the existence of an Imam, and since the obligated act is within the capacity of the responsible party, the existence of the Imam becomes obligatory.

Issue 8: The Mu'tazila View on Punishment and Deeds

The Mu'tazila argue that Allah's statement "an exemplary punishment from Allah" (nakālan min Allāh) implies the punishment is inflicted for the purpose of humiliation and degradation. If this is the case, the thief deserves humiliation and blame. Consequently, it becomes impossible for him to still deserve praise and honor for his good deeds, as these are opposites. This implies that punishment for major sins nullifies the reward for good deeds (the doctrine of iḥbāṭ).

Response: We have already provided extensive proofs against the doctrine of nullification in Surah Al-Baqarah (2:264). Furthermore, we agree that the punishment being an exemplary deterrent is conditional upon the person not repenting. If evidence shows Allah has granted pardon, then the execution of the ḥadd is not for deterrence but for examination/trial. We have already established proofs for the possibility of pardon.

Issue 9: Causality in Divine Rulings

The Mu'tazila argue that "as a recompense for what they have earned" explicitly indicates that the cutting is caused by the theft (i.e., Divine rulings are based on effective causality).

Response: This is addressed by what we previously discussed in this Surah regarding the verse: "For that reason We decreed upon the Children of Israel that whoever kills a soul..." (5:32).

Issue 10: Grammatical Analysis of "Recompense" and "Exemplary Punishment"

• Al-Zajjaj: Jazā'an (recompense) is in the accusative case because it is an object of purpose (maf'ūl lah), meaning: "Cut off their hands for the recompense of their deed." Similarly, nakālan (exemplary punishment) can be accusative as an infinitive derived from the command faqṭa‘ū (Cut off and deter them as a recompense...).
• "And Allah is All-Mighty, All-Wise" (Wa-Allāhu ‘Azīzun Ḥakīm): He is Mighty in His vengeance and Wise in His laws and obligations.
  • Anecdote: Al-Asma'i recounted that while reciting Surah Al-Ma'idah to a Bedouin, he mistakenly recited, "And Allah is Forgiving, Merciful." The Bedouin asked, "Whose speech is this?" When told it was Allah's, he asked him to repeat. Upon repeating the mistake, Al-Asma'i corrected himself to "And Allah is All-Mighty, All-Wise." The Bedouin replied, "Now you are correct. Because He is All-Mighty and Wise, He commanded cutting. If He were Forgiving and Merciful [only], He would not have commanded cutting."

Verse: فَمَن تَابَ مِن بَعْدِ ظُلْمِهِ وَأَصْلَحَ فَإِنَّ اللَّهَ يَتُوبُ عَلَيْهِ ۚ إِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ

Translation: "But whoever repents after his wrongdoing and corrects himself, indeed, Allah will turn to him in forgiveness. Indeed, Allah is Forgiving and Merciful."