(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Amir of Hizb ut-Tahrir, to the Questions of the Visitors to his Facebook Page "Fiqhi")
Answer to Question: No Amputation for Theft during a Desperate Famine To: Umm Ibrahim
Question:
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuh, our virtuous Sheikh, may Allah increase you in knowledge and grace. I would like to ask a question, trusting your Excellency for the answer. We learned that Umar ibn al-Khattab (ra) did not cut the hand of the thief during the Year of al-Ramadah (the Year of Ash). Was the suspension of the ruling in that case due to a legal cause ('illah) that ceased to exist, thereby causing the ruling of amputation to cease? If so, what is the 'illah of the ruling for amputation? Do punishments in principle have 'ilal that they follow wherever they go? May Allah bless you.
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuh,
1- Regarding what Umar (ra) did, he applied the Shari'ah ruling as it was revealed in Islam; meaning, he did not suspend the application of the ruling, but rather applied it as it ought to be. There are cases where amputation is not permissible, and among them is the state of famine. Amputation is not allowed in such a case. I will mention some of the evidence for the impermissibility of amputation during a year of famine:
- Al-Sarakhsi mentioned in al-Mabsut that it was narrated from Makhul (ra) that the Prophet (saw) said:
لَا قَطْعَ فِي مَجَاعَةِ مُضْطَرٍّ
"There is no cutting (of the hand) in the famine of one in desperate need."
It was also stated in al-Mabsut by Al-Sarakhsi, on the authority of Al-Hasan, from a man who said: "I saw two men bound and some meat, so I went with them to Umar (ra). The owner of the meat said: 'We had a pregnant camel (ushara’) that we were waiting for, just as one waits for the spring, but I found that these two had slaughtered it.' Umar (ra) said: 'Would two pregnant camels that are in their fourth year satisfy you for your camel? For we do not cut for the idhaq (property), nor in the year of drought (‘am al-sanah).'" The ushara’ is a pregnant camel that has reached ten months and is close to giving birth; it is the most precious thing to its owners, as they wait for fertility and abundance through its milk, just as they wait for the spring. His saying: "We do not cut for the idhaq," some narrate it as al-irq, which is meat, but the more famous version is al-idhaq. Its meaning is that there is no amputation in the year of drought due to necessity and makhmasah, i.e., hunger and famine.
Ibn Abi Shaybah extracted in his Musannaf from Ma’mar, who said that Yahya ibn Abi Kathir said that Umar said:
لَا يُقْطَعُ فِي عِذْقٍ، وَلَا فِي عَامِ سَنَةٍ
"There is no cutting (of the hand) for property (idhaq), nor in the year of drought (‘am al-sanah)."
2- Accordingly, the non-imposition of the hadd (prescribed punishment) for theft during the Year of al-Ramadah (the Year of Famine) is due to the Shari'ah ruling regarding the non-imposition of the hadd for theft during a year of famine. That is, Umar (ra) did nothing more than act according to the Shari'ah ruling by not imposing the hadd for theft on someone who stole during a year of famine, because this is the Shari'ah ruling for this situation.
3- As for your question about the legal causes ('ilal) in punishments ('uqubat), then yes, punishments can be subject to 'ilal and analogy (qiyas). However, the Hudud carry the meaning of "punishment" ('uqubah) and the meaning of being "prescribed/fixed" (haddiyyah). As for the meaning of haddiyyah—that is, the amount and type of the hadd—this is not subject to 'illah. Thus, a hadd is neither increased nor decreased, whether in the amount of the punishment or the number of punishments, as they are limited to the Shari'ah evidences. As for the meaning of "punishment" in the hadd, what applies to punishments in terms of 'illah and qiyas applies to it.
To clarify the matter, we provide some examples:
For example: It is narrated that Umar (ra) was in doubt about the qawd (retaliation) for a slain person if seven people participated in the killing. Ali (ra) said to him: "O Amir al-Mu'mineen, what if a group of people participated in a theft, would you cut their hands?" He said, "Yes." Ali said, "Then it is the same." Here, he analogized the killing of seven who participated in a murder to the cutting of the hands of all thieves if they participated in a theft. Here, the 'illah was "participation in the act necessitating punishment," which is in punishments, and it was used in the analogy of killing partners in the punishment for murder based on the amputation of partners in the hadd for theft.
Another example: the Messenger (saw) said:
ألا إن قتيل الخطأ شبه العمد قتيل السوط والعصا فيه مئة من الإبل أربعون في بطونها أولادها
"Behold, the one killed by mistake that resembles intent is the one killed by the whip or the stick; for it, there is one hundred camels, forty of which are pregnant."
Here, a legal cause ('illah) was derived from intentional killing with a whip or a stick, which is "intentional killing with something that does not usually kill," known as shibh al-amd (quasi-intentional homicide). This was used in the analogy of intentional killing with a small stone or repeated striking, i.e., with anything that does not usually kill. Thus, killing with such things does not result in qawd (retaliation) but rather in a heavy diyah (blood money). The ruling was not limited to the whip and the stick but was extended to everything that does not usually kill. However, if one kills with something that usually kills, like a knife or a gun, then this is intentional murder (amd) that requires the killing of the murderer.
Analogy (qiyas) was used here: in the first example, we analogized the killing of partners in intentional murder to the amputation of partners in theft based on the 'illah of "participation in the act necessitating punishment." In the second example, we analogized the consideration of killing with a small stone as quasi-intentional to the consideration of killing with a stick as quasi-intentional, as mentioned in the Hadith, based on the 'illah of "killing with a tool that does not usually kill."
I hope the answer has become clear.
Your brother, Ata Bin Khalil Abu Al-Rashtah
10 Jumada al-Akhirah 1437 AH 19/03/2016 CE
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