al-Hukm bi-Qat yad al-Sariq fi al-Sharia al-Islamiyya
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al-Hukm bi-Qatʿ Yad al-Sāriq fī al-Sharīʿah al-Islāmiyyah (The Ruling on Amputating the Hand of the Thief in Islamic Law) is a legal treatise by Iraqi jurist and scholar Ahmad Ubayd al-Kubaysi, written while serving as a lecturer of Islamic law at the University of Baghdad . The work examines the penal sanction (ḥadd) for theft in Islamic jurisprudence, analyzing its legislative wisdom, philosophical rationale, and immutability under legal rulings .
Scope and Philosophy of the Punishment
The treatise opens by classifying theft among crimes whose prohibition and punishment are definitively fixed by the Quran and the Sunnah as a right of God (ḥaqq Allāh), leaving no discretion for increase, reduction, or substitution by any human authority . Al-Kubaysi argues that the divine lawgiver determined the specific penalty of hand amputation rather than leaving it to subjective human reasoning or judicial discretion to avoid contradictions and injustice .
Analyzing the Quranic phrasing جَزَاءً بِمَا كَسَبَا نَكَالًا مِنَ اللَّهِ ("as a recompense for what they committed, a deterrent from Allah"), the author explains the twofold rationale of the penalty:
- Jazāʾ (Recompense): The punishment is proportionate not merely to the material sum stolen, but to the terror, insecurity, and disruption the thief causes in society by acting in secret . For this reason, amputation is mandated for theft rather than open usurpation (ghaṣb) or snatching (intihāb), where social alarm is less severe and evidence is easier to establish .
- Nakāl (Exemplary Deterrence): The severity of the penalty serves as a visible warning that discourages others from committing the crime, effectively protecting both property and life .
Al-Kubaysi addresses why the hand specifically is amputated: as the physical instrument of the crime, its removal serves as a direct counterweight to the thief's psychological motivation of illicit gain by diminishing their future earning capacity . Drawing on classic jurists like Ibn al-Qayyim, al-Nasafi, and al-Qurtubi, he clarifies why this principle does not extend to amputating the organ of fornication (zinā), noting that fornication involves the entire body—which is thus subject to lashing or stoning—and that cutting the reproductive organ would disrupt human procreation and lack the open visibility that constitutes public deterrence .
Refutation of Modernist Arguments
A central focus of the work is refuting modern legal theorists and writers—such as Ma'ruf al-Dawalibi, Mustafa Zayd, and Ali Hasaballah—who suggested that prescribed punishments could be modified, suspended, or replaced with alternative penalties based on changing times and public interest (maṣlaḥah) .
Al-Kubaysi categorizes their arguments into four main proofs and systematically critiques them:
- Abrogation (Naskh): Modernists argued that divine abrogation proves the mutability of rulings. Al-Kubaysi responds that abrogation is restricted to successive divine revelation during the Prophet's lifetime and cannot be executed post-prophecy by human reasoning or consensus .
- The Share of al-Muʾallafah Qulūbuhum: The claim that Caliph Umar ibn al-Khattab abolished their Quranic share of zakat out of public interest is refuted by demonstrating that Umar acted upon the absence of the legal condition (ʿillah) rather than altering the text .
- Ibn al-Qayyim's Rule on Changing Legal Rulings: Al-Kubaysi clarifies that Ibn al-Qayyim referred to discretionary edicts (fatwā) and customary practices, not categorical, definitive statutory punishments (ḥudūd) .
- Umar's Suspension in the Year of Famine: The argument that Umar suspended the theft penalty during the famine is rebutted by demonstrating that severe hunger creates a state of necessity (ḍarūrah) and legal doubt (shubhah), which exempts the individual from the legal definition of a thief rather than altering the prescribed text .
Publication and Reception
The study was published in serial format and articles in regional Islamic journals, notably appearing in Kuwait's Majallat al-Arabi and the journal of the Islamic University of Madinah in Rajab 1392 AH (September 1972 CE) . It prompted scholarly engagement and debate regarding jurisprudence and public interest, including responses and rejoinders between al-Kubaysi and Ma'ruf al-Dawalibi .
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