Comparative Criminal Law and Enforcement: Islam

The hadd punishment for theft is the amputation of a hand. To be guilty of theft, one must be a competent adult and have the mental intention to steal. The act must consist of the removal by stealth of a certain kind of item of a minimum value that is owned by another person.

Stealth. The item taken must be in a place of safekeeping (hirz), such as a private residence, or a storehouse where goods are kept under guard. Invited guests cannot be charged with theft, nor can pickpockets, nor even one who enters a hirz stealthily but has not yet departed when apprehended or has left the place openly. An accessory who receives the stolen good is not normally subject to the hadd.

Minimum value (n_ihab). Unless the value of stolen goods meets or exceeds a certain value, the hadd penalty may not be applied. The jurists of the different schools set varying minimum values, but for all, the minimum was not negligible, and roughly corresponds with the common law offense of grand as opposed to petty theft.

Type of good (mal). The crime of theft applies only to chattels that are capable of being owned by a Muslim. Thus, the stealing of wine or pork does not incur the hadd. Nor do items of idle amusement, such as games or pets. Holy items are also exempt, as is real and intellectual property.

Property of another. Taking a piece of property in which one, knowingly or not, has a part interest, does not constitute theft. Thus, embezzlement or stealing from the public treasury is not theft, because every Muslim has a part interest in the fisc. The taking of the property of a near relative will not make one subject to the penalty nor things in a wild state, such as game.

If one is convicted of theft, the right hand is amputated and the wound cauterized. Demonstrating that much of the law on crimes in the shari'a came from jurists' speculations rather than actual practice, the rule requires that if there are subsequent thefts, amputation of the left foot, left hand, and right foot will proceed respectively.