By: Allamah Sayyid Muhammad Husayn at-Tabataba’i
Why does Islam order the hand of the thief to be cut?
In examining the Islamic penalty for theft, which is to sever four fingers of the thief’s hand, two aspects should be distinguished: first, that in committing a wrong the thief deserves to be punished and, second, that this punishment should be the severing of the hand. Considering the first aspect, we know that Islamic law is not alone in setting a penalty for theft.
Human societies, as far back as history sheds light on, have invariably condemned theft and punished thieves; this includes primitive human communities, tribal societies, feudal societies, monarchies, theocracies, and finally democracies. This universal consensus is based on the belief that the most valuable asset that human beings possess is life and that the foremost responsibility of the individual is to pursue a felicitous life.
To this end, people work collectively as a society to acquire wealth and secure their welfare. In this way, people expend one half of their life—an invaluable price—to secure the well-being of the other half.14 As the importance of safekeeping a goods increases in proportion to its value, it should go without saying that to keep our possessions—for which we have expended one half of our life—safe is of utmost importance.
Thus, to leave the possessions of the individuals of a society unprotected is tantamount to destroying one half of the collective life of that society just as leaving the lives of the constituent individuals of a society unprotected is tantamount to destroying the entire collective life of that society: “…whoever kills a soul, without its being guilty of manslaughter or corruption on the earth, is as though he had killed all mankind…” Surah al-Ma’idah 5:32.
In this light, thieves as enemies of the financial security of the society must be dealt a severe punishment that would also serve as a deterrent.
As to the second aspect of the question, that is, the punishment that Islam designates for this crime, one can infer on examining the entire body of the Islamic penal code that the rationale that Islam pursues in the punishments it establishes is to inflict upon the criminal the like of which the victim has suffered so that, first, he would receive the justice he deserves and, second, it would make a lesson for other potential criminals.
Obviously, it is not possible to recompense for a wrong that ruins one half of an individual’s productive life by monetary fine, whether small or large, or imprisonment. The strongest proof for this is the failure of such measures to achieve their purpose in the so-called advanced countries. Heeding this realistic analysis, Islam orders the hand of the thief, which is more or less equal to one half of his life’s work, to be severed.
Unfortunately, the objections that our so-called enlightened thinkers make against Islam’s penal code—which have these days become as ubiquitous and ruinous as theft in our country—shows that they do not realize this very clear logic. Their argument is, why should a man’s hand—which God has bestowed to him for the pursuance of his wellbeing and which he has the right to utilize throughout his life for resolving his problems—be severed as the result of a mistake he committed under financial pressure?
What this argument does is in essence to justify the wrong perpetrated by the thief and then to evoke our sense of pity to feel sorry for him. The error in this line of reasoning is very clear. Although it is a virtue in personal issues to be clement and forgiving in treating those who have wronged us (as Islam strongly encourages the victim to relinquish his right to punish the offender), to be sentimental in dealing with social issues is wrong. To be lenient toward criminals is a ruthless injustice toward the society at large; in leaving the thief free and respecting his “human rights” we would be harassing and disrespecting the innocent individuals of the society. In the words of Rumi: “To pity the sharp-toothed leopard is to oppress the sheep.”
So the issue is that in the legal code, the legislator must ensure the interests of the society at large, not merely the individual welfare of the thief or even the victim for that matter.
Let us now turn to another objection that is closely related to what has thus fur been elucidated. The objection is that there should be a difference between a thief who is driven to commit a petty theft out of need and desperation and one who has made this crime his vocation, continually offending the public, everyday ruining the happiness of a family.
Why, then, does Islam treat both cases similarly? The answer is, when Islam establishes a certain punishment for a crime, it is enforceable when the judicial authority of the Islamic state has confirmed the commission of the crime. If one commits theft once and is thereafter apprehended and proven guilty he receives the punishment of the severance of four fingers of the right hand; one will receive the same punishment if he is apprehended after having committed theft more than once without being punished.
Furthermore, the Islamic penal code treats all instances of theft, whether grand or petit, equally, for both cases are violations against one of the fundamental elements of the society—namely, financial security. The conditions and circumstances that lead up to the commission of theft make no difference in the execution of punishment.
The detractors of Islam’s penal code further argue that by cutting the four fingers of the thief we render him a public burden as he can no longer care for himself, not to mention that one potentially productive member of the society is incapacitated.
These gentlemen should be reminded that in a country with a diverse population with multifarious needs, there will definitely be work for someone missing four fingers; he would not constitute a burden for the society. It is precisely for this reason that the next punishment Islam assigns for one who repeats the crime of theft is not the severance of the other hand but the severance of his left foot.
Moreover, assuming that the incapacitation of a thief does constitute a burden for the society, is this burden not incomparably lighter than the financial insecurity that his offense brings on the society? What a ridiculous argument! Is the incapacitation of a thief more burdensome on the society than leaving him unrestrained or than imposing on the society the heavy costs of keeping him imprisoned?
Are the ever-increasing number of thieves and burglars in our country not a public liability? They continue their evil work unrestricted, preying on the efforts of others. And this is not to mention the murders and other shameful crimes that they naturally inflict on their victims in the process of theft, the accounts of which abound in our newspapers.
Thieves caught under the present law are crowded in prisons. Does imprisonment yield any benefits other than the leisure it affords the criminals at the expense of the society and the opportunity it provides for criminals to enhance their expertise in the company of their more experienced colleagues.
The detractors in turn make the point that such cruel punishments are incapable of advancing the deterrent function that is expected of them. This is clearly demonstrated, in their opinion, by the failure of the American movies depicting the life and fate of criminals in decreasing the crime rate; such movies have only helped to increase the crime rate.
But how could they expect such exciting and sexually provocative movies, which more often than not exonerate criminals and portray as libertinism the happy way of life, to help in reducing the crime rate? The example of such movies should in no way be compared with the punishments established by Islam. Sound judgment definitely rules in favor of such criminal punishments as measures that dissuade those who are tempted to violate the law. Of course, social factors, like natural factors, are not absolute. Thus the advocates of the Islamic penal code do not claim that such punishments would absolutely uproot crime; they would however reduce crime rate to a minimum.
By: Allamah Sayyid Muhammad Husayn at-Tabataba’i