Chapter Two: The Legal Standing of the Highway Robber
A muḥārib is anyone whose blood was sacrosanct before he committed the act of ḥirābah—that is, any Muslim or any dhimmī living under Muslim protection.
Chapter Three: Penalties Incurred by the Highway Robber
The jurists agree that the highway robber incurs two kinds of liability: a right owed to God and a right owed to human beings. They likewise concur that God’s right—explicitly stated in the verse on ḥirābah—comprises execution, crucifixion, amputation of the hands, amputation of the feet on opposite sides, and banishment.
They differed, however, on whether these punishments are left to the ruler’s discretion or are to be graded in proportion to the robber’s crime.
• Mālik said:
– If the robber has killed, he must be killed; the imam has no discretion regarding amputation or banishment—his only choice is between execution and crucifixion.
– If he has taken property without killing, banishment is not an option; the imam may choose among execution, crucifixion, or cross-wise amputation.
– If he merely terrorized travellers, the imam may choose execution, crucifixion, amputation, or banishment.
Discretion, in Mālik’s view, means recourse to the imam’s ijtihād: should the robber possess intellect and strategic ability, the proper course is to kill or crucify him, for amputation will not eliminate his danger. If he lacks such cunning and is merely strong and aggressive, the imam amputates him cross-wise. If he has neither trait, the lightest measure—beating and banishment—suffices.
• Al-Shāfiʿī, Abū Ḥanīfah, and a number of other scholars maintained that the punishments are fixed according to the specific offenses detailed by the Sharīʿah: only the robber who murders is put to death; only the one who seizes property is amputated; and only the one who neither kills nor takes property is banished.
• Another group held that the imam has unrestricted discretion, regardless of whether the robber killed or did not kill, took property or left it.
The root of the dispute lies in the particle “or” (aw) in the verse: does it signify free choice, or does it divide the penalties according to the various crimes? Mālik applied both readings—detailing the punishment for some categories of robbers and allowing discretion for others.
They also disagreed over the meaning of the phrase “or be crucified.” Some said it means that the robber is left on the cross until he starves to death. Others said it means that he is both executed and crucified: among them, Ashhab held that he is killed first and then crucified, whereas Ibn al-Qāsim and Ibn al-Mājishūn contended that he is crucified alive and slain while fixed to the stake.
Those who require execution before crucifixion perform the funeral prayer for him prior to raising him on the cross. Those who say he is killed while on the cross differ: some omit the prayer as an added deterrent; others stand behind the stake and perform it.
Sahnūn said: if he is killed on the cross, he is taken down and the funeral prayer is performed over him; whether he is then returned to the cross is the subject of two opinions related from him.
Abū Ḥanīfah and his colleagues held that the body may remain on the cross for no more than three days.