Section
If, however, he has killed, he must be put to death. The ruler may not choose amputation or banishment; his choice is limited to execution or crucifixion. If he has taken property without killing, the ruler may not choose banishment, but may choose execution, crucifixion, or amputation of a hand and foot on opposite sides. This summarizes Mālik’s position, may Allah have mercy on him. Some transmitted versions of al-Mudawwanah state that if a brigand has become firmly established, or has grown powerful and persisted for a long time, the ruler must execute him and has no choice in the matter. This means that the ruler should impose nothing short of execution in such a case, since independent legal judgment identifies it as the appropriate punishment for someone of this description. On this interpretation, therefore, this report does not contradict the principle we have related from him.
Section
Al-Shāfi‘ī, Abū Hanīfah, and a number of scholars held that “or” in this verse does not indicate a choice, but rather an ordered sequence and succession, and that the punishments Allah prescribed for brigands vary according to their crimes. They argued that whenever Allah mentions different punishments and intends an ordered sequence, He begins with the most severe and proceeds to the less severe; when He intends a choice, He begins with the lightest and proceeds to the more severe.
Examples of the former are the expiations for declaring one’s wife as forbidden as one’s mother and for homicide.
Examples of the latter are the expiation for breaking an oath and the compensation for relief from an ailment during pilgrimage.
Since Allah begins, in the case of the brigand, with execution, followed by crucifixion, then amputation, then banishment, they argued that we know He intended an ordered sequence rather than a choice. This, however, is an unsupported claim. Indeed, the evidence establishes its invalidity. One example is the saying of Allah, Almighty and Majestic:
“That they be killed or crucified” [al-Mā’idah: 33].
He begins with execution, which is less severe than crucifixion. According to their reasoning, this would require a choice between execution and crucifixion, yet they do not accept such a choice. Furthermore, Allah says concerning compensation for hunting:
“As an offering brought to the Ka‘bah, or an expiation by feeding the poor, or its equivalent in fasting” [al-Mā’idah: 95].
He begins with the sacrificial offering, which is more burdensome than feeding the poor or fasting, yet this was