Surah Al-Mâ’idah 5:38

وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِّنَ اللَّهِ

5:38 Al-Sâriq السَّارِقُ is a noun of intensiveness of sâriq سارق. It is derived from the root saraqa سَرَق meaning, “To steal”. Sâriq is the one who steals. Al ال before the noun gives the sense of intensiveness and perfection. Such a noun is called ism mubâlaghah إسم المبالغة. Thus Al-Sâriq السَّارِقُ is not just an ordinary thief or a person who commits an act of theft, but a professional, habitual thief. Al-Sâriqah السَّارِقَةُ is the female counterpart of such a habitual thief. The word Aqta‘ûاقْطَعُو literally means, “to cut” and faqta‘û aidî-huma فَاقْطَعُوا أَيْدِيَهُمَا means, “cut the hand of the two”. However, the punishment prescribed in the verse is not for a simple act of theft (saraqa), or for an ordinary thief (sâriq) but for Al-Sâriqa, the addicted, habitual thief, whether man or woman.

In order to correctly understand the nature of this punishment, it is necessary to know the metaphorical meaning of faqta‘û aidî-huma فَاقْطَعُوا أَيْدِيَهُمَا or “cut the hand of the two”. The Arabic expression for silencing someone is qat‘a lisâna-hu قطع لسانه - “cut off his tongue”. However, qata‘a-hu bil-hijjati قطَعه بالحجٌة means, “he silenced him with argument” (Lisân). We read in the chapter of Joseph, qata‘na aidîyahunna قطعنَ إيديهُنٌ meaning “cut their hands”: “when they (the women of the township) saw him (Joseph) they began to cut (off) their hands” (12:31). This does not mean that the women of the township where Joseph lived literally cut their hands off when they saw Joseph, but his appearance made them fall silent this way. Therefore, faqta‘û aidî-humaفَاقْطَعُوا أَيْدِيَهُمَا (“cut the hand of the two) has to be read metaphorically. It means that the Al-Sâriq (or Al-Sâriqa the female counterpart) must be deprived of the power and means to continue stealing and to prevent them from committing repeated thefts. This could be done by imprisonment or other means. This punishment must be compared with the minimum punishment for those who "make war" and “create disorder in land" such as bandits and murderers, as mentioned in verse 33 of this chapter. As stated there (5:33), for such people the minimum punishment is imprisonment, yet theft is a less serious crime than "creating disorder in land" and "making war". The minimum punishment for theft should therefore not be more severe than the minimum punishment these more sever crimes.

There is also another argument that faqta‘û aidî-humaفَاقْطَعُوا أَيْدِيَهُمَا - “cut the two hands” is to be taken metaphorically and not literally, and that is by looking at the practice of the Holy Prophet (pbuh). According to a saying of the Holy Prophet (pbuh), a hand was not to be cut off when a theft was committed in the course of a journey (Da’ûd 37.19); a further saying is that a hand was not to be cut off for stealing fruit from a tree (Da’ûd 37:19). Another tradition (hadîth) states that at the time of the Holy Prophet (pbuh) when a person stole another’s belongings. The rightful owner was invited to sell it to the person who had stolen it, and the Holy Prophet (pbuh) approved of this arrangement (Dâ‘ûd). ‘Umar(rz), the second caliph did not cut off the hands of Ibn Abî Batta and his companions who stole a camel because they were hungry. Therefore, without a system of social security this punishment cannot be imposed as every citizen is entitled to a share in the community’s economic resources. It is therefore against the background of such a system of social security that the Holy Qur’ân imposes this punishment. In a state in which security, social justice, and the basic needs of all are assured, theft represents an attack against the system as a whole. Thieves should be stopped and confined if peace is to be maintained in such a society. In a state where this social security does not exist, such a punishment should not be imposed and state law must confine itself to milder forms of punishment. It was based on this principle that ‘Umar(rz) waived the hadd (limit) of hand cutting in the case of Ibn Abi Batta during a period of famine that afflicted the nation during his reign. This punishment therefore is not a required punishment under all circumstances as it is often misunderstood, but rather the absolute maximum punishment that can be imposed if certain strict conditions are met. Another aspect that should be remembered is that theft in those times often resulted in severe consequences and even death of the victim of such crimes, for example if a riding camel or water and food provisions were stolen in the desert. Even if taken literally, it should be noted that this punishment, by imposing a maximal limit on the punishment for theft abolished the death penalty for this crime, which in that day and age was commonly imposed.