Author Topic: Amputation: the Penalty for Theft?  (Read 5729 times)

uq

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Amputation: the Penalty for Theft?
« on: January 23, 2016, 04:06:48 PM »
The traditional understanding of 5:38 is that the penalty for theft is amputation of the hand.

In this post I present arguments that take a different view.

I have categorised my arguments into two categories: semantics and pragmatics.

Semantics concerns the grammatical and lexical implications of the text of the verse.

Pragmatics concerns the interpretational and cultural implications of the verse.

Finally, for the sake of a balanced assessment, I give a couple of counter-arguments to my view at the end.

Semantics

(1) The key to a firm understanding of 5:38 is to deconstruct the word أَيۡدِيَهُمَا their hands and its place in the verse, for this word reveals more than we would initially suspect. Let us first look at the traditional translation of 5:38: ?The male thief and the female thief, cut their hands as a reprimand from God. God is mighty, wise.? In Arabic, there are 5 different 3rd person pronouns depending on the number of objects and their gender. The following table gives all 5 pronouns:

http://1drv.ms/1QllyAO (Click on link to see table)

As can be seen from the table, Arabic does not distinguish the gender of pronouns in the dual number. These pronouns are suffixed to nouns and verbs. As an example, let us now suffix these pronouns to the noun كِتَاب book:

http://1drv.ms/1KwUmdE (Click on link to see table)

In 5:38, the word in question (أَيۡدِيَهُمَا their hands) has the noun in the plural and the pronoun in the dual. That is to say, the word يَد hand is used in the plural to signify 3 or more hands and the pronoun signifies 2 people. Therefore, according to the traditional understanding, we are instructed by God in this verse to cut off 3 or more hands from 2 people. This is nonsensical because the supposed command to sever the hand should be applicable to a single individual, not to two individuals at the same time; that is to say, this command can only be applicable if a man AND a woman commit theft at the same time, and is therefore not applicable if two men commit theft or if two women commit theft etc. As such, أَيۡدِى in this verse cannot be referring to hands.

(2) Furthermore, the word يَد in Arabic can refer to any part of the human arm; up to and including the shoulder joint. Therefore, it can refer to the hand from the fingertips up to the wrist, or up to the elbow, or up to the shoulder joint. Why do we not see a specification in the verse as to the point at which the thief?s hand should be severed?

(3) The word يَد in Arabic can also refer to sustenance. But it only carries the meaning of sustenance when it is in the plural, not in the singular. As such, re-interpreting the word أَيۡدِى to mean sustenance instead of hands we re-read the verse as: ?The male thief and the female thief, discontinue their sustenance as a reprimand from God. God is mighty, wise.? The sustenance to which I refer here is the sustenance provided by the state to its citizens. We read in several verses of the Quran that the giving of wealth to the needy is a paramount characteristic of the believers, and if the state were to administer this distribution, then it would be in the position to discontinue the sustenance of those who steal.

(4) The word قَطَعَ used in 5:38 can mean in Arabic one of a number of things, of which are to cut, to cut off, and to disconnect. The first meaning is used in 12:50 in which the women who were present at the gathering of Joseph?s master?s wife are reported to have cut their hands out of astonishment of Joseph?s beauty. It is reasonable to think that this cutting of theirs was not amputation, but an accidental cutting of their hands in the sense of slash or graze. The second meaning has traditionally been thought to be intended in 5:38. And finally the third meaning is expressed in 6:45 where the word is used in an expression to mean disconnected.

Pragmatics

(1) If 5:38 were meant to be interpreted as amputation of the hand, then it is anomalous in that it is the only verse in the Quran for which amputation is the punishment for a sin. Not even رِبَا or زِنَى have been given corporeal punishments as severe as theft; not to mention the greatest sin of them all: شِرۡك , which receives absolutely no corporeal punishment whatsoever. I should mention here that although 5:33 does mention a severing of the hands and feet, it is stated in the impersonal 3rd person sense and is stated as a passive statement meant to be taken as a factitive declaration, not as a command that is to be implemented by the believers.

(2) As briefly mentioned above, there is a lack of provision of specifics of the execution of the command of amputation, namely, from what point of the anatomy should the hand be amputated? why are we given specifics in 5:6 for ablution but not in something as important as amputation? why is amputation the sole punishment of theft and not of more serious crimes?

(3) The after-effects of amputation will quite likely create more problems than it was meant to solve. The thief concerned will undoubtedly suffer emotional distress at the loss of his/her hand and this will give way to mental disorders such as depression and anxiety in view of their place in society. They will effectively be marked out among the population in which they live on account of being identified as a thief. And of course, not having a hand, their mobility will be affected. Are these factors that are deserving of theft? Furthermore, how is the thief to be redeemed in society with an amputated hand in light of the verse following 5:38 which states that God forgives those thieves who repent?

(4) Sunni Islam lays down conditional rules for the execution of the command of amputation in 5:38, as: 1) people living in a community must not be living in a state of poverty which might increase their likelihood of theft, if this is not the case, then amputation cannot take place 2) the thief must be a repeating offender 3) the item stolen must be of a given value 4) the thief must be a sane adult with no history of insanity. All these conditional requirements are admirable, for they hinder the execution of amputation. However, we, as a people who use the Quran only as a guide in life, cannot rely on extra-Quranic sources for the implementation or interpretation of religious guidance. And it is the idea itself of having amputation as a punishment for theft that should be analysed for its merits and faults. I argue the latter to be prevailing.

Counter-arguments

(1) In Classical Arabic, it is permissible for the plural to be used in place of the dual when appended to a pronoun. Example, it is permissible to use the plural أَيۡدِى in reference to the dual يَدَانِ as it is considered a liberality in usage. Another example is found in the Quran in 66:4 where we read قُلُوبُكُمَا where قَلۡبُكُمَا would have otherwise been used. This means that the argument given above about the incomprehension of the plurality of the noun being prefixed to a dual pronoun is invalid only on the grounds that the Author intended أَيۡدِيهُمَا to be an instance of liberality in usage.

(2) A similar argument can be levelled against the interpretation of the word أَيۡدِى as sustenance as that levelled against its interpretation as hands in terms of the lack of the provision of specification of the duration during which the thief?s sustenance should be suspended.
uq

Wakas

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Re: Amputation: the Penalty for Theft?
« Reply #1 on: January 24, 2016, 06:51:34 AM »
peace uq,

Thanks for sharing your analysis. These are the kinds of posts I much prefer to read. Also it is commendable citing some counter-arguments - as it is rare for authors to do this.

A few points:

Let's say Quran did command to cut off a thief's hand, how would you expect the Arabic to be phrased?

When you said it means sustenance it is always the plural. Is this also true for its other meanings of power/means, or just sustenance? I have not checked Quran with regard to this point, but could be interesting.

Re: counter-arguments

1)
In 66:4 perhaps the perceived liberality of usage could be due to the addressees being female and pregnant, hence the reference to more than two hearts. Of course this interpretation may result in asking why is the unborn baby's heart being involved into the discussion. Just something I thought of. It would be interesting if there were other examples of liberality of usage elsewhere in Quran that were clear cases of such.

2)
I think one obvious response to that would be to say it cannot be defined because the value of the theft will vary, thus the suspension (or whatever) would vary.

You may also like to read this, as it brings up some other points:
http://misconceptions-about-islam.com/cut-off-hands-theft.htm

e.g.

Quote
Also, when lashes are given as punishment for proven adultery, The Quran states not to let pity/compassion prevent you from carrying out such a punishment [24:2], but it says no such thing for the alleged hand cutting-off verse, when many consider this punishment to be worse. This adds to the possibility that it should not be taken to mean this.
All information in my posts is correct to the best of my knowledge only and thus should not be taken as a fact. One should seek knowledge and verify: 17:36, 20:114, 35:28, 49:6, 58:11. My articles

www.studyQuran.org

good logic

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Re: Amputation: the Penalty for Theft?
« Reply #2 on: January 24, 2016, 09:27:34 AM »
Peace  uq.
Very interesting.

Will require digesting, but so far it makes sense, what you presented.

I agree with Wakas, these kinds of posts are a good example to all of us.

GOD bless you.
Peace.
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Jafar

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Re: Amputation: the Penalty for Theft?
« Reply #3 on: January 24, 2016, 11:44:05 AM »
Regardless of whatever any "holy book" say..

Along with other gruesome punishment found in the holy books, ie. crucifixion, stoning..
The punishment of hand amputation for thief is not a good punishment and MUST not be applied.

Amputating the hands of somebody will render the man useless and impaired for the society.
It's also "irreversible" in case the convicted man later proved to be not guilty.

I'm truly sorry we convicted the wrong man.. here let me return your hand back..

Any punishment should be applied based on the following motivation:
- Beneficial to the society as a whole.
- Reforming the offender.

The main objective is not to "Punish" but to create better society.

Limitation on movement (e.g. Prison) to protect the society and/or "Pro Bono" services (ie making license plate, cleaning the street etc..) is a better punishment for thieves compared to hand amputation.

Amputating the hands will turn a thief into a beggar..

HP_TECH

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Re: Amputation: the Penalty for Theft?
« Reply #4 on: January 24, 2016, 11:50:46 AM »
@ Uq
Excellent post I just wanted to highlight some issues and propose some ideas

I think the issue with the mainstream-like interpretation is also of the punishment serving as a means to deter from further future offenses and simultaneously permanently label/mark/stigmatize the offender.
This may have seemed wise to those who interpreted it as such because of the benefit of eliminating the threat of theft by avoiding past offenders upon recognition and obviously the benefit of impeding their abilities.

Punishments although are not mean to permanently mutilate and stigmatize individuals because God is The Forgiver and  always gives individuals an opportunity to repent.
In fact, let us look at the following ayaah:
5:39
But whoever repents after his wrongdoing and reforms (his ways), then indeed, Allah will turn towards him in forgiveness. Indeed, Allah is Oft-Forgiving, Most Merciful.

An individual cannot have a chance to repent be forgiven if the punishment is immediate, permanent and stigmatizing.

Taking the command as a mutilating punishment would contradict the above ayaah. There are no contradictions in the Quraan.

I am interested  in the semantics you presented. However, I believe that for your translation in the ayaah, one could make an argument that it is conveying severing from the sustenance of the offenders. As in severing a set amount from their means. Instead of completely cutting them off from the resources.
The family who the individual might be responsible for should not have to suffer because of the individuals actions.

That is why I am against the theory of imprisonment or severing the individual from his/her ability to commit the crime by taking away their freedom.
One in such a condition would be left incomeless and his/her family would suffer terribly from such a set back.

I gather that you see the sustenance provided by the state as an even equal redistribution among the citizens of funds raised from the citizens incomes?

I take it to mean that it serves for the less fortunate exclusively, or at the least they are the sole priority in my understanding.
In my opinion we can see an example of such priority in
Surah 59:7
Whatever Allah restored to His Messenger from the people of the towns,it is for Allah and His Messenger and the kindred and the orphans and the needy and the wayfarer, so that it may not become a perpetual circulation between the rich among you. And whatever the Messenger gives you, take it; and whatever he forbids you from, refrain. And fear Allah. Indeed, Allah is severe in penalty.

However you define the sustenance I think the command is to sever a portion, as a fine.
Since I see the sustenance provided by the state as a welfare aid I would exclude the idea of wealthy people recovering the aid. There are however all sorts of thiefs among poor and rich and if one interpreted the punishment as cutting off completely a person's sustenance or resources or wealth then imagine for example a wealthy individual who steals a meal, should he lose his entire estate and wealth over a meal?

If your interpretation is that all citizens receive equal aid from the state, then you have to consider how the aid is funded as well.

I think the sustenance provided by the state is funded by all income receiving individuals. Whatever they have of excess after all their obligatory expenses is for the state welfare.
OR
1/5 ~20% of whatever they have of excess after their obligatory expenses.

I think what is most unsure about right now is weather the wealth is meant to eventually be redistributed evenly to all citizens once needy are well established or it is meant solely to aid the most needy.
I tend to believe the redistribution targets the most needy individuals on their specific needs.
It does not get redistributed evenly or to all the needy indivuals at once, I would propose it is more of a thought out case by case process.
If someone neediest person is in dire need of an apple will you divide the apple in equal fractions and distribute it evenly so that the one that had an excess receives a fraction he does not need and the needy is deprived of what he was in need of?
It wouldn't be fair. You would ensure that the most needy has what is essential first before even thinking about even redistribution.

See the ayaahs below

58. And among them are some who criticize you concerning the (distribution of) charities. If they are given from it, they are pleased; but if they are not given from it then they are enraged.
59. And if they were satisfied with what Allah and His Messenger gave them, and had said, “Sufficient for us is Allah, Allah will give us of His Bounty and (so will) His Messenger. Indeed, we turn our hopes to Allah."

If one stole it would be insensitive to cut them completely from the welfare if they are poor and if one is rich he was probably not ever in need of the welfare.
So the punishment according to interpreting it as a complete cut off from sustenance is not balanced.
The set punishment would penalize poor individuals exceedingly more than their wealthy counterparts.


There are a lot of components surrounding this to consider.


That is why when you take all these in to consideration it would seem that cutting in the sense of slicing (like the women at Joseph's masters's wife's gathering) their sustenance or resources would make more sense. Slicing to let blood drip from their hands as an offering of admiration in the case of the women. Hence slicing from the thief's resources to let some of the sustenance drain out, in proportion to the crime committed or value of the item stolen. The which needs not to be immediate and all at once but just like cutting/slicing is a GRADUAL incision or the blood from the cut therefrom drips gradually.
The penalty should then be a fine in proportion to what was stolen and extracted from the offender in proportion to the offender's means. This way the ones who are maintained by the thief's oaths do not have to suffer.

Salaam
إِنَّنِي مِنَ الْمُسْلِمِي

My Lord I repent to you for anything I uttered concerning You for which I have no knowledge of. Indeed You are the Oft-Forgiving, Most Merciful

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Re: Amputation: the Penalty for Theft?
« Reply #5 on: January 24, 2016, 12:51:41 PM »
Excellent post uq, informative and thought provoking, pragmatics in my
opinion supercedes semantics and pragmatics #2 and 3 are on point.  A farmer with
children who loses a hand for an unspecified theft would be a detriment to his/her family
and society.



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uq

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Re: Amputation: the Penalty for Theft?
« Reply #6 on: January 25, 2016, 04:38:21 PM »
Peace all,

Peace Wakas,

In terms of the wording of the verse, if the verse was meant to be taken as an amputation of the hand, I would expect the command to use no uncertain terms and be very specific, much like the verse commanding the lashing of the fornicators, something along the lines of السارق والسارقة فاقطعوا من كل واحد منهما يدا من الرسغ or من المرفق or من الكتف The male thief and the female thief, cut off, from each of them two, a hand from the wrist or from the elbow or from the shoulder.

Note how the inclusion of the words wrist or elbow or shoulder should leave no doubt in one's mind that the يد that is spoken of is referring to the arm or hand and therefore the word cannot be taken to mean anything else, in this particular context. Note also how I used the word يد in the singular, not the plural. Note also how I used the phrase من كل واحد منهما which should leave no doubt that the amputation is applicable to both the male and female thief individually, thereby precluding concomitant duality.

The signification of يد as sustenance is used in the plural, however, other meanings of the word, as power and means can occur in the singular.

Regarding 66:4, I find it unlikely that the foetus is being involved in the discussion as God is expecting the hearts of the two women concerned to "take heed" and reform their mistake. I think it is most likely a liberality in usage.

Regarding the second counter-argument, I agree with your point.

Thank you for your link, I agreed with what you wrote in your article.

Peace HP_TECH,

You raise some very important points, my brother.

As you point out, the matter is not straightforward. All your questions and comments deserve further consideration in the application of this law.

As far as I see it, the generality of the law is fixed, i.e. that the thief must be punished by means of subsistence or finance, the specifics of the law are variable, i.e. how the state is structured and how it will go about in the implementation of the law.

I see this as a liberality from God.
uq

huruf

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Re: Amputation: the Penalty for Theft?
« Reply #7 on: January 26, 2016, 02:45:11 AM »
Peace all,

Peace Wakas,

In terms of the wording of the verse, if the verse was meant to be taken as an amputation of the hand, I would expect the command to use no uncertain terms and be very specific, much like the verse commanding the lashing of the fornicators, something along the lines of السارق والسارقة فاقطعوا من كل واحد منهما يدا من الرسغ or من المرفق or من الكتف The male thief and the female thief, cut off, from each of them two, a hand from the wrist or from the elbow or from the shoulder.

Note how the inclusion of the words wrist or elbow or shoulder should leave no doubt in one's mind that the يد that is spoken of is referring to the arm or hand and therefore the word cannot be taken to mean anything else, in this particular context. Note also how I used the word يد in the singular, not the plural. Note also how I used the phrase من كل واحد منهما which should leave no doubt that the amputation is applicable to both the male and female thief individually, thereby precluding concomitant duality.

The signification of يد as sustenance is used in the plural, however, other meanings of the word, as power and means can occur in the singular.

Regarding 66:4, I find it unlikely that the foetus is being involved in the discussion as God is expecting the hearts of the two women concerned to "take heed" and reform their mistake. I think it is most likely a liberality in usage.

Regarding the second counter-argument, I agree with your point.

Thank you for your link, I agreed with what you wrote in your article.

Peace HP_TECH,

You raise some very important points, my brother.

As you point out, the matter is not straightforward. All your questions and comments deserve further consideration in the application of this law.

As far as I see it, the generality of the law is fixed, i.e. that the thief must be punished by means of subsistence or finance, the specifics of the law are variable, i.e. how the state is structured and how it will go about in the implementation of the law.

I see this as a liberality from God.


The word hand or hands in plural is, as far as I know,used in many languages with the meaning of power, capacity, ability, authority. Like we say, at least i Sanish, to leave something in the hands of God. God obviously has no hands, the menaing is clearly we cknowledge that we are powerless or not have enough power or knowledge to assume full responsiblity for something. Likewise, we leave things in many peoples hands, that is not putting somethign material into some material hads, but to entrust and empower somebody to do somethig for us.


Exressions of that kind are may, many, and so is in the Qur'an too, where most expressions in which the word appears are idioms and do not refer to the physical hands and even in some of them like those about writing the book with their own hands, are wider and than writing with the physical hands and include responsibility or rather prime the responsibility in that expression rather than the material deed. 

Cut the hands off is such a crude and unjudicial expression for meaning a physical hand and a physical cutting that I find it improper of the qur?an as uq has very aptly stated.

Even if you cut the hans what will prevent the author of such a crime to become the "brain" of new thefts? And this time even justified since without hands he will have lost most of his or her ability to earn a living.

Also, how many hands for each thief? Even taken to mean a dual, it leaves us in the dark as to haw many. Both hands each one, both hands one and one hand the other one han and one hand the hands of all potential thisves and thievesses.

Te Qur'an, which uses ver liberally "hands" in idiomatic expressions, is suddenly forbidden by the authority of some readers to continue using hands as idiom?

As to the exression itself in the aya I amnnot convinced by "sustenance" i would think it rather referss to ability or capacity.

In fact there is good reason to use an expression as wide as possible to fit each case because if it is to prevent the thief fromm repeating the exploit, we should cut fromhim or her precisely those factors that enable him or her to steal. Which are those? well, we will have to see in eachcase. It may be the person steals because of need, we must ten solve the problem fromm the social side, the ability comes from need. If it is because of some compulsion, then a psychological handling ight be aproriate. If it is because of greed, then forbid him or her to become rich, prohibit to enjoy this or that that he might greed for.

That is, the hands are a generla expression as to the foundation of what should be done, but do not poit to a particular kind of punishment, although there clearly a punishmet since it is a reward for what he did. That is, any curtailment in his rights after that would not be arbitrary but matching what he did.

And of course, as pointed out by uq, is the vagueness of the punishment, no number of hands, no precision a to how or how much, not whether severe off or just a little...

So, so, we would then need hadith or scholars to solve all those conundrums?

As to the deterrence... I m doubtful. Whe people do those things, the same s when eople murder, they think they are not going to be caught.

May be it does deter a little, but I am doubtful. Prison is really bad. I do nto know why it has such a good ppress,
but I should think it is bad enough.

And also, there is the irrversibility of the fact. If there is a mistake or if there is forgiveness, who is going to return to the person the severed hands? To speak of forgiveness in that sense is a joke. If the repentant thief could accept it The family of the thief and society at large would might have plety of trouble accepting it.

Salaam

uq

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Re: Amputation: the Penalty for Theft?
« Reply #8 on: January 26, 2016, 11:03:02 AM »
Peace huruf,

I agree with the points you have contributed.

I am also prepare to entertain the possibility that يد could signify power or ability and thereby the implication of the verse would be to hinder the thief's ability to do things or to restrict their mobility.
uq

Wakas

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Re: Amputation: the Penalty for Theft?
« Reply #9 on: January 26, 2016, 02:55:23 PM »
peace uq, all,

Quote
The signification of يد as sustenance is used in the plural, however, other meanings of the word, as power and means can occur in the singular.

I think seeing how the plural is used in Quran could be helpful.

In any case, I think the answer could be staring us in the face - what if all we need to do is reconcile the phrase in 5:38 with the example of theft given in Quran, which Joseph oversaw.

Is there a match?

All information in my posts is correct to the best of my knowledge only and thus should not be taken as a fact. One should seek knowledge and verify: 17:36, 20:114, 35:28, 49:6, 58:11. My articles

www.studyQuran.org