Book of Theft

This Book examines the following matters: the ḥadd prescribed for theft; the conditions that must be met in the stolen property for that ḥadd to become obligatory; the qualities of the thief upon whom the ḥadd is imposed; the punishment itself; and the kinds of evidence by which the offense is proven.

Theft is the clandestine taking of another person’s wealth without having been entrusted with it. We define it in this way because the jurists unanimously agree that no amputation is incurred for betrayal of trust or for open snatching—save for the opinion of Iyās ibn Muʿāwiyah, who ruled that the hand is to be cut off for furtive snatching, a position he traces to the Prophet—may Allah bless him and grant him peace.

Some scholars have likewise deemed amputation obligatory for anyone who borrows jewelry or other goods and then denies it, relying on the famous ḥadīth of the Makhzūmī woman: “She used to borrow jewelry, and the Messenger of Allah—may Allah bless him and grant him peace—cut off her hand because she denied it.” This view was adopted by Aḥmad and Isḥāq.

The report, related by ʿĀʾishah, reads:

“A woman of the Banū Makhzūm used to borrow articles and then deny them. The Prophet—may Allah bless him and grant him peace—ordered that her hand be cut off. Her family went to Usāmah and spoke to him, so Usāmah interceded with the Prophet—may Allah bless him and grant him peace. He said, ‘Usāmah, do I see you pleading concerning one of the limits set by Allah?’ He then stood and addressed the people, saying:

‘What destroyed those who came before you is that if a noble person among them stole, they let him go, but if a weak person stole, they cut his hand. By Him in whose hand is my soul, were Fāṭimah daughter of Muḥammad to steal, I would cut off her hand.’”

The majority of scholars reject this ḥadīth because it conflicts with established legal principles: an item on loan is held in trust, and she did not take it without permission, much less from a secure place. They say the report is abridged—that she both stole and denied it—and this is indicated by his—may Allah bless him and grant him peace—statement: “What destroyed those before you …”

They add that al-Layth ibn Saʿd transmitted the report from al-Zuhrī with his chain, explicitly stating: “The Makhzūmī woman stole.” This shows that she was guilty of both denial and actual theft.

Likewise, the scholars concur that neither a usurper nor one who seizes property by force is subject to amputation—unless he