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LARCENY OFFENSES IN ISLAMIC LAW

Hisham M. Ramadan*

2006MICH.ST.L.REV.1609

TABLE OF CONTENTS

INTRODUCTION .........................................................................................1610 I. PRIMARY PROCEDURAL MATTERS .....................................................1611

A. Standing in Criminal Trials ........................................................1611B. STANDARD OF PROOF IN LARCENY OFFENSES ...................................1612 II. SIMPLE THEFT .....................................................................................1612

A. The Mental Element in Islamic Criminal Law, Generally .........1613B. The Mental Element of Theft .....................................................1614

1. Intention Elements (1 & 2): the Intent to Deprive and the Intent

to Own.................................................................................16142. Knowledge Elements (3, 4, and 5): Knowledge that His Act

Constitutes a Crime, Knowledge That the Property is Owned

by Another and Knowledge That He is Not

Permitted/Authorized to Own The Property. ......................1616C. Physical Element: Taking Secretly............................................1616

III. ALTERING THE CONDITION OF A PROPERTY......................................1618 A. Conditions Related to the Property Stolen .................................1618

1. The Property must be Moveable...........................................16182. Impermissible Taking of a Protected Property.....................1619

a. Protecting Property by Placing it in a Protected Place ..1620b. Property Protected by Association................................1623c. Perfect Invasion of the Protected Place Theory ............1625d. Impact of Perfect Invasion Theory on Multiple Offenders

Cases.............................................................................1625 3. The Property Stolen Must Have Monetary Value under Islamic

Law...................................................................................... 16274. The Value of the Property Stolen Must Equal or Exceed a

Certain Amount...................................................................16275. Property Owned by Another................................................1629

B. Accomplice Liability..................................................................1631C. Attempt.......................................................................................1631D. Punishment.................................................................................1633

1. The Original Punishment (Hadd Punishment) ....................16332. Discretionary Punishment (Tazeer)..................................... 1634

IV. PETTY THEFT .....................................................................................1634


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1610 Michigan State Law Review [Vol. 2006:1609

V. FORCIBLE THEFT (HIRABA) .................................................................1634A. The Offense................................................................................1634B. Punishment.................................................................................1637C. Liability Mitigation ....................................................................1638

VI. EMBEZZLEMENT/FRAUDULENT LARCENY .......................................1639 CONCLUSION ............................................................................................1640

INTRODUCTION

Islamic law distinguishes between three categories of crimes: hudud,1

qusas,2 and tazeer.3 Crimes ofhududand qusas are well defined and their

punishments are fixed. In contrast, tazeercrimes were not defined exclu-

sively in Islamic law and were left to the Islamic legislature, in a given era,

to define according to social needs.Offenses can be classified according to the nature of the harm caused

by the norm violation. The zone of harm created by qusas offenses covers

social interests as well as individual interests. However, in this class of

offenses, the individuals interest that is violated greatly outweighs any so-

cial interest violation. On the contrary, hududcrimes may harm individ-

ual(s) and impinge upon social interests, causing the greatest harm to soci-

ety. Of all classes of offenses, the social interests violated by hududcrimes

greatly outweigh the individual victims interest that is violated.

Simple theft and forcible robberycomprise a particular class or cate-

gory ofhududcrimes, a class which causes a great negative impact on the

social and economic life of a community. The impact is much greater than

mere loss of propertyit creates feelings of insecurity, guardedness, and ageneral state of alarm in an individual. To a degree, this general state of

alarm is due to crimes typically associated with larceny, such as homicide

* Visiting Professor, Michigan State University College of Law. L.L.B. AinShams University (Cairo, Egypt), L.L.M. Auckland University (Auckland, New Zealand),L.L.M. (Criminal Law) State University of New York at Buffalo, S.J.D. University of Wis-

consin. Thanks to Nichole Jongsma Derks for wonderful research assistance.1. Hudud means a specific punishment prescribed by God for crimes that trans-

gress upon God/social rights. Hudud crimes are: slander, zena (fornication or adultery),apostasy, baghee (unlawful rebellious acts), voluntary intoxication, hiraba (major crimesagainst public order and safety typically exemplified in terms of armed highway robbery),

and theft. The crime of apostasy is debatable. See MOHAMED S.EL-AWA, PUNISHMENT INISLAMIC LAW 53-56 (2000).2. Qusas means just and proportionate retribution. Qusas crimes encompass homi-

cide and bodily injury offenses.3. Tazeermeans discretionary punishment. Tazeercrimes are the largest category

of crimes, including any crimes not listed as hududor qusas.


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Special] Larceny Offenses in Islamic Law 1611and assault.4 In this context, the punishment ought to be proportionate to

the harm that occurred, both just and severe. The rationale underlying the

severity of the punishment is straightforward: when a legislature is con-

fronted with the option of either lessening the punishment for the offense,

which may increase the incidents of larceny and generate a general state of

alarm on one hand, or increasing the severity of the punishment for larceny,

which sacrifices the interest of the offender in obtaining a lesser, more mod-

erate punishment while generating a peaceful and healthy economic envi-

ronment on the other, the legislature ought to impose the more severe pun-

ishment.

However, the proportionality doctrine remains the controlling factor in

determining liability. Simple theft ought not to be punished as armed rob-

bery because of the greater harmful impact of the latter. Nor should theft be

punished as petty theft in which the offenders harmful conduct is minimal

in comparison to theft.

Part I of this Article explains the standard of proof in larceny offenses

and standing in criminal trials. Part II discusses the simple theft offense,

which encompasses the general requirements of larceny offenses. Parts III,

IV, and V discuss the distinctive features of other larceny offenses. The

Articles purpose is not limited to educating the reader of the law of larceny

in Islamic law, but to also give the western world a taste of in-depth analysis

of Islamic jurisprudence. Finally, it should be noted that this Article is

guided by the opinions of the four prominent Islamic jurisprudence scholars,

Abu Hanifa, Malek, Ahmed Ibn Hanbel, and Al-Shafee.

I. PRIMARY PROCEDURAL MATTERS

A. Standing in Criminal Trials

Standing is dependent on the nature of the crime committed. When

one commits a crime violating social rights (e.g., voluntary intoxication), 5

any individual may report it to the proper authorities. In contrast, when one

commits crimes infringing upon an individuals rights (e.g., homicide, will-

ful physical harm), only the victim or his heirs (in case of the victims

death) have the power to trigger criminal charges against the offender.

In a number of offenses, the harm caused infringes upon both social

and individual rights. In such cases, standing is given to the most harmed

right. Accordingly, because larceny offenses infringe upon social as well as

individual rights, but most offenses harm the individual victim, the majority

of scholars concede that the individual victim has the sole right to report the

4. MOHAMMED ABU ZAHRA, EL-AKOBA [THE PUNISHMENT] 66 (1950).5. This is, of course, providing that the number of witnesses requested is present.


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offense to the authorities in order to trigger criminal charges. Once it is

reported, the crime becomes a public affair; thereupon the victim cannot

withdraw the charge. It should be noted that it is strongly encouraged for

the victim to forgive and not to report the offense to the authorities.6

B. STANDARD OF PROOF IN LARCENY OFFENSES

The standard of proof in hudud crimes, including theft and forcible

theft, is that all elements of the offense must be proven beyond all doubts.7

Furthermore, defenses have to be negated beyond all doubt.8 No lesser

standard of proof is acceptable in hududoffenses. Proving a larceny offense

under a lesser standard of proof (e.g., beyond reasonable doubt) may result

in a conviction of a lesser included larceny offense. These offenses were

left to the Islamic legislature to adopt, according to the social and economi-

cal needs, providing that the punishment must be less than the one pre-

scribed for hududtheft offenses (e.g., hand amputation, capital punishment,etc.).9

II. SIMPLE THEFT

Simple theft can be defined as trespassory taking of property of an-

other secretly with intent to own it.10 Trespassory taking of property se-

cretly by the non-possessor is the distinctive characteristic of simple theft

that distinguishes it from other larceny offenses. If the taking occurred in

the presence of the owner, against his will and without using force, the

crime committed is embezzlement rather than theft.11 If the taking occurred

in the presence of the owner, against his will and with force or threat of

force, the crime committed is armed robbery.12

6. See The Holy Quran, Sura Al-Baqarah 2:237.7. See Hadith doubt precludes applying Hudud punishments. The Hadith is

quoted from ABED EL-RAHMAN AL SAYOTEE, AL-ASHBAH WA AL-NAZAAR 122 (1983)

(translated by author); see also Hadith avoid inflicting the fixed punishment of Hadd onMuslims as much as you can; for it is better for the judge to make a mistake in releasing anoffender rather than committing a mistake in convicting an innocent. SUNAN AL-TIRMIDHI, BOOK OF AL-HUDUD,HadithNo.1424 (translated by author).

8. See IBN MAJAH, BOOK OF AL-HUDUD, Hadith No. 2545 (Withdraw Hudud

wherever you can find a plea.) (translated by author).9. ABED EL-RAHMAN AL SAYOTEE,AL-ASHBAH WA AL-NAZAAR 123-24 (1983).10. IBN ROSHED EL-KORTOBY, 2 BEDAYAT AL-MOGTAHED WA-NAHYAT AL-

MOKSTASED 662 (translated by author).11. Id.12. Id.


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Special] Larceny Offenses in Islamic Law 1613A.The Mental Element in Islamic Criminal Law, Generally

Perhaps the cornerstone of Islamic criminal law is knowledge.13 No

punishment is given for committing a prohibited act unless the actor is

aware of the prohibition, the nature of his conduct, the possible conse-

quences, and any circumstances that may affect the definition of the crime.

In contrast to common law, Islamic jurisprudence does not contain traces of

the irrebuttable presumptions of knowledge typically existing in common

law negligence offenses. The contrast between Islamic law and common

law arises from the weight given to the moral dimension of the punishment.

Punishment is warranted under Islamic law only if the actor had knowledge

of his conduct, the prohibition that has been violated, the consequences of

his conduct, and the circumstances. Common law recognizes the same

principle, but to a lesser degree. There is a wide range of common law neg-

ligence offenses that presume the existence of knowledge. Additionally, the

number of strict liability offenseswhich require no state of mind whatso-

everis constantly increasing.

Sole intention, not accompanied by an overt action that constitutes a

prohibited conduct, is not a punishable offense. Law enforcement agencies

are prohibited from investigating or drawing conclusions about an individ-

uals intentions, so long as they are not manifested by prohibited overt con-

duct. Moreover, law enforcement agencies are prohibited from spying or

invading an individuals expected zone of privacy to investigate crime.

Accordingly, law enforcement is restricted to explicit criminal behaviors

only andwithin the expected limits of an individuals privacy.14

13. Several verses in The Holy Quran repeatedly emphasize the necessity of knowl-edge as a basis for punishment. See The Holy Quran, Sura Al-Israa 17:15 (Whoever ac-cepts guidance does so for his own good; whoever strays does so at his own peril. No soulwill bear anothers burden, nor do We punish until We have sent a messenger [to give warn-

ing].) (translated by author); see also The Holy Quran, Sura Fatir 35:24 (We have sentyou with the Truth as a bearer of good news and warning - every community has been sent awarner [in the past].) (translated by author); The Holy Quran, Sura Al-Qasas 28:59 (YourLord would never destroy towns without first raising a messenger in their capital to recite

Our messages to them, nor would We destroy towns unless their inhabitants were evildo-ers.) (translated by author); The Holy Quran, Sura An-Nissa 4:164-65 ([T]o other mes-sengers We have already mentioned to you, and also to some We have not to Moses Godspoke directly messengers bearing good news and warning, so that mankind would have noexcuse before God, once the messengers had been sent: God is almighty and all wise.)

(translated by author).14. See The Holy Quran, Sura Al-Hujurat 49:12 (Believers, do not indulge manyof your suspicions some suspicions are sinful and do not spy on one another or speak ill

of people behind their backs: would any of you like to eat the flesh of your dead brother?No, you would hate it. So be mindful of God: God is ever relenting, most merciful.)(translated by author).


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Intention may take several forms. The actor may intend not only the

act but also a specific result. The actor may intend the act but no specific

result (such as shooting at a person not intending to kill or even to hurt

them). The actor may intend the act and a specific result with awareness

that another result might occur (shooting to harm with an awareness that

death might result). In this context, so long as the intention to harm is ac-

companied by an overt act, the conduct is culpable.15 However, the degree

and nature of the culpable intention has been subject to interpretation.

Some scholars concede that an offender is liable for the complete offense

when the offender intends to do the act with knowledge of its natural conse-

quences or that the natural consequences are, objectively measured, possi-

ble.16 The Malkee scholars suggested that the cornerstone in criminal liabil-

ity is the intent to harm, not intending the result.17 Therefore, the foresee-

ability of causing a result, whether objectively or subjectively measured, is

irrelevant to criminal responsibility. The majority of scholars suggest that

intention to cause the prohibited consequences is the determining factor for

culpability. Obviously, because such intent is difficult to ascertain, we

should rely upon the circumstances to infer such intent.

B. The Mental Element of Theft

Two mental states must be present, intent and knowledge. They are

satisfied when an actor: (1) intended to deprive the owner of his property;(2) intended to own the property; (3) knew that his acts constituted a crime;

(4) knew that the property was owned by another; and (5) knew that he was

not permitted to own the property.18

1. Intention Elements (1 & 2): the Intent to Deprive and the Intent toOwn

Absent malicious intent, an actor is not liable for theft.19 For example,

one could not be held liable if he believed that the owner had relinquished

ownership, or if he had intended only the unauthorized use of the property.

Therefore, in a number of incidents an actor, although intending to deprive

15. ABU ZAHRA, supra note 4, at 288-89.16. Id.17. Id.18. See infra Part II.B.1.

19. See Narrated Umar bin Al-Khattab: The Prophet said, I heard Allahs Apos-tle saying, The reward of deeds depends upon the intentions and every person will get thereward according to what he has intended. So whoever emigrated for worldly benefits or for

a woman to marry, his emigration was for what he emigrated for. Sahih Bukhari, Vol. 1,Bk. 1, No. 1, available at http://www.usc.edu/dept/MSA/fundamentals/hadithsu-nnah/bukhari/001.sbt.html#001.001.001 (last visited Sept. 12, 2007).


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Special] Larceny Offenses in Islamic Law 1615an owner of his property, is not culpable of theft because he lacks the inten-

tion to own the property or to absorb its value. This may occur by destroy-

ing the property or by consuming it. The actor, in this case, is liable for

unauthorized destruction of property rather than theft. Similarly, the owner

of a share of property who sells the entire shared property is not liable for

theft if he did not intend to deprive the remaining owners of the value of

their shares. Equally, the agent who exceeds his duties by selling the prop-

erty subject of the agency is also not liable for theft so long as he did not

intend to deprive the owner of the value of his property.20

The initial step of intending to own stolen property involves inten-

tional transfer of possession of the stolen property from its legal possessor

to the actor. However, the issue of transferring possession raises a number

of controversies. The prominent scholar Abu Hanifa suggested that if the

actors possession of the stolen property was interrupted by intervening

factors, simple theft offense requirements, punishable by hadd,21 are not

satisfied. This proposition is an application of the obstructing hand the-

ory, which suggests that intervening circumstances beyond the actors con-

trol that prevents the actor from continuing to take possession of the stolen

property diminishes the actors culpability.22 For example, an actor removes

a motor vehicle from the owners garage, but shortly before taking full pos-

session, another actor steals the vehicle. In this case, the intervening hand

of the later actor who took possession of the stolen property diminishes the

former actors liability, exempting him from the original punishment of

simple theft by hadd. However, the former actor remains liable for a crimi-

nal offense punishable by discretionary punishment tazeer. In contrast,

renowned scholars Malek, Al-Shafee, and Ahmed suggest that the stolen

property enters the actors possession once the lawful possessor has lost

possession of the property.23 Accordingly, if an actor stole a motor vehicle

whereby another thief stole it from him, the property effectively entered

possession of the first actor, rendering him liable for simple theft offense

punishable by hadd.

20. Id.21. ALAAAL-DEEN AL-KASSANY, 7 BADAAL SANAFE-TAKREEB AL-SHARA 66

(translated by author). The term hadddenotes the original punishment for hududoffenses.The original punishment for the simple theft offense is cutting the right hand. The punish-

ment for the simple theft offense will be elaborated in detail in subsequent pages.22. Id.23. MANSOOR AL-BAHWATEE, 4 KASHAF AL-QANAHALA-MOTON AL-EQNAH 80

(translated by author); IBN KODAMAH AL-MAKDISI, 10 AL MOGHNEE WA-AL SHARAH ALKABEER 259 (translated by author); AL-SHERAZEE, 2 AL-MOHAZAB 297 (translated by au-thor).


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2. Knowledge Elements (3, 4, and 5): Knowledge that His Act Consti-

tutes a Crime, Knowledge That the Property is Owned by Another

and Knowledge That He is Not Permitted/Authorized to Own The

Property

The main sources of Islamic lawQuran and Sunnaunequivocally

affirm that knowledge of the prohibition, a universal doctrine which domi-

nates Islamic jurisprudence, is a prerequisite to and justification for punish-

ment.24 Other forms of the knowledge element in crimes are equally impor-

tant. The actor who takes the property of another mistakenly believing that

it is his own, or honestly but mistakenly believing that the rightful owner

has transferred ownership to him, is not culpable for larceny because he

lacks the intention to steal. The classic example of imperfect knowledge

precluding liability is taking property subject to multiple claims of owner-

ship by one of the claimants who honestly believes he is the rightful owner.

On the other hand, because the knowledge element in crime is the corner-

stone of liability under Islamic law, it was suggested that an actor who takes

his own property, owned by inheritance or otherwise, but honestly though

mistakenly believing it is owned by another, is guilty of a crime.25 This

proposal may raise the issue of liability on impossible crime under Islamic

law. However, this issue extends far beyond the scope of this Article.

C. Physical Element: Taking Secretly

Taking secretly is the indispensable element of the simple theft of-

fense, distinguishing it from other larcenous acts, including embezzlement,

fraudulent larceny, and debtor/pledge refusal to return the pledge/debt.26

The taking secretly element is straightforward. It obviously means the

24. See The Holy Quran, Sura An-Nissa 4:165 ([M]essengers bearing good newsand warning, so that mankind would have no excuse before God, once the messengers had

been sent: God is almighty and all wise.) (translated by author); The Holy Quran, SuraAl-Israa 17:15 (Whoever accepts guidance does so for his own good; whoever strays doesso at his own peril. No soul will bear anothers burden, nor do We punish until We have senta messenger [to give warning].) (translated by author); The Holy Quran, Sura Al-Qasas

28:59 (Your Lord would never destroy towns without first raising a messenger in theircapital to recite Our messages to them, nor would We destroy towns unless their inhabitantswere evildoers.) (translated by author). Furthermore, the prophet Mohammed never pun-ished for a prohibited conduct until The Holy Quran specified the offense and its penalty.

See AHMED FATAHEY BAHNASI, AL-SYASAH AL-GANAAEYAH FE AL-SHARIA AL-ISLAMIAH

[THE PENAL POLICY IN ISLAMIC LAW] 357 (1988); see also IBN HAZEM, 11 AL-MOHALA BA-ALATHAR 107.25. See ABU ZAHRA, supra note 4, at 280; see also IBN HAZEM, 4 AL-HOKOM FE-

ASOOL AL-AHKAM 117.26. IBN KODAMAH AL-MAKDISI, 10 AL MOGHNEE WA-AL SHARAH AL KABEER 236-

37 (translated by author).


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Special] Larceny Offenses in Islamic Law 1617actor took the stolen property without the legal possessors knowledge.

Accordingly, if delivery of the property occurred knowingly and willingly,

the element of taking secretly required in simple larceny is absent, and the

failure to return the property to its legal possessor might constitute embez-

zlement, forced robbery, or fraudulent larceny.

The element of taking secretly is of two kinds: direct taking, which

occurs by the actor intentionally and physically taking possession of the

stolen property, and indirect taking, which occurs by an indirect act that

results in transferring possession of the property from the lawful possessor

to the actor.27 Using a device that captures property and delivers it to the

actor, or cutting a hole in a bag so that money would fall from it, are in-

stances of indirect taking.

Because the majority of scholarly opinion suggests that a theft offense

requires the actor to take full possession of the stolen property, the distinc-

tion between direct and indirect taking of a possession is useful in determin-

ing the timing of the actors taking full possession of the stolen property

and, therefore, establishing the actors liability. If the offender is caught

while taking possession of the property (e.g., in the process of taking pos-

session by an indirect act), the offense committed is an attempt and, there-

fore, the original punishment for theft is precluded.

The taking secretly element is extraordinarily important with respect

to the definition of the offense and the appropriate punishment. As noted in

the introduction, the severity of the punishment in hududoffenses, including

simple theft and forcible robbery, or hiraba, corresponds to the harm that

occurred. The harm generated by forcible robbery or simple theft is of a

magnitude much higher than that generated by petty theft or embezzlement.

The zone of harm in embezzlement is limited to between the parties (vic-

tim(s) and offender(s)). It is limited to the creation of a sphere of mistrust

between the victim(s) and the offender, in addition to the value of the prop-

erty stolen. Similarly, the harm is limited in the petty theft offense because

the value of the property is trivial. In contrast, forcible robbery or simple

theft results in a zone of harm extending far beyond the value of the prop-

erty stolen and the relationship between the parties. It negatively affects the

entire sphere of social peace and order. Furthermore, stealing property by

means of secret taking or under the threat of force, if it became common,

would promote an environment of guardedness and suspicion which would

deter everyday activities, causing financial losses. On this basis, larceny

that encompasses secret taking or threat of force deserves a more severe

punishment than embezzlement or petty theft.

27. See AHMED FATAHEY BAHNASI, AL AKOUBAH FE AL-FEKAH AL-ISLAMI [THEPUNISHMENT IN ISLAMIC LAW] 105 (1983).


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III. ALTERING THE CONDITION OF A PROPERTY

Most prominent scholars suggest that altering the condition of prop-

erty by consumption, damage, or otherwise, does not constitute theft but

rather criminal damage.28 However, this proposal presumes that the actor

only damages property owned by another before taking full possession. If

an actor obtains full possession of a property and then damages it, the actor

is culpable of theft.

The interesting case of an actor swallowing property before taking full

possession requires drawing a distinction between consumable and non-

consumable property. If the property is consumable (e.g., food or drink),

the offense committed is criminal damage rather than theft. If the property

is non-consumable (e.g., jewelry or money), the scholars presented a num-

ber of propositions. First, swallowing property is considered consumption,

therefore, the crime committed is criminal damage. The merit of this pro-

posal appears in cases where the swallowed property was not retrieved

safely. Second, swallowing property is considered taking secretly.

Therefore, the actor is liable for simple theft if the other elements of the

crime are present. The merit of this opinion appears in the case of retrieving

the property safely. Third, retrieving the property safely after swallowing is

the touchstone for offense classification. If the property is retrieved safely,

the actor has committed theft. If not, then the offense committed is criminal

damage.

A. Conditions Related to the Property Stolen

There are a number of conditions required of the property stolen: (1) it

must be moveable; (2) it must be a protected property; (3) it must havemonetary value under Islamic law; (4) its value must equal or exceed a cer-

tain amount; and (5) it must be owned by another.

1. The Property must be Moveable

This condition is both logical and fundamental. It is logical because a

theft offense is not committed unless the actor removes the protected prop-

erty from its place and takes full possession. Accordingly, immovable

property cannot be subject to removal. This is fundamental because it ex-

plains the limits of the theft offense. An individual cannot steal land, but if

he extracts minerals from this land and thereby takes possession and as-

sumes ownership of the property, he is culpable of theft.

28. Scholars Malek, Al-Al-Shafee, Ahmed, Mohamed, and Abu Hanifa advance thisproposition.


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Special] Larceny Offenses in Islamic Law 16192. Impermissible Taking of a Protected Property

The distinguishing factor between theft and embezzlement is that the

actor in the theft offense took a protected property.29 The distinction be-

tween theft and embezzlement is not a theoretical or inconsequential one;

rather, it has ample impact on the appropriate punishment. The punishment

for theft is much more severe than embezzlement, given that theft represents

a greater threat to public safety and welfare. In this context, theft punish-

ment is hadd, which means amputating the hand of the thief. Alternatively,

the punishment for embezzlement is a discretionary punishment, tazeer,

which could vary from mere blame to any punishment less than hadd.30 The

vast majority of scholars required this condition, according to a number of

authenticated Hadith.31 The protection occurs either by placing the property

in a protected place, or by protecting the property by association.

29. TAKEE AL-DEEN IBN TAYMIA, AL-SAYSAH AL-SHARIA FE ESLAH AL-RAEE WA-AL-RAYA 107.

30. SUNAN AL BAYHAQE, Hadith No. 18075 (Whoever punishes with the punish-ment of a Hadd offense without committing that Hadd is an aggressor.).

31. See this Hadith narrated by Rafi ibn Khadij:Muhammad ibn Yahya ibn Hibban said: A slave stole a plant of a palm-tree from

the orchard of a man and planted it in the orchard of his master. The owner of theplant went out in search of the plant and he found it. He solicited help against the

slave from Marwan ibn al-Hakam who was the Governor of Medina at that time.Marwan confined the slave and intended to cut off his hand. The slaves masterwent to Rafi ibn Khadij and asked him about it. He told him that he had heard theApostle of Allah (peace_be_upon_him) say: The hand is not to be cut off for tak-

ing fruit or the pith of the palm-tree. The man then said: Marwan has seized myslave and wants to cut off his hand. I wish you to go with me to him and tell himthat which you have heard from the Apostle of Allah (peace_be_upon_him). SoRafi ibn Khadij went with him and came to Marwan ibn al-Hakam. Rafi said to

him: I heard the Apostle of Allah (peace_be_upon_him) say: The hand is not tobe cut off for taking fruit or the pith of the palm-tree. So Marwan gave orders torelease the slave and then he was released.

Sunan Abu-Dawud, Bk. 38, No. 4375, available at http://www.usc.edu/dept/MSA/fund-

amentals/hadithsunnah/abudawud/038.sat.html (last visited Sept. 12, 2007). See also thisHadith narrated by Abdullah ibn Amr ibn al-As:

The Apostle of Allah (peace_be_upon_him) was asked about fruit which was bungup and said: If a needy person takes some with his mouth and does not take a sup-ply away in his garment, there is nothing on him, but he who carries any of it is to

be fined twice the value and punished, and he who steals any of it after it has beenput in the place where dates are dried to have his hand cut off if their value reachesthe value of a shield. If he steals a thing less in value than it, he is to be find twice

the value and punished.Sunan Abu-Dawud, Bk. 38, No. 4377, available at http://www.usc.edu/dept/MSA/fund-amentals/hadithsunnah/abudawud/038.sat.html (last visited Sept. 12, 2007).


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a. Protecting Property by Placing it in a Protected Place

Generally, a protected place is any place that was constructed to pro-

tect the property. Examples of protected places are dwellings, stores, ware-

houses, and barns. Abu Hanifa suggests that the protected place is any con-

structed place that is not open to the public except with authorization, and

that it is immaterial whether the place has a door or not.32 Malek suggests

that any place prepared to protect property suffices to satisfy the definition

of protected place. In contrast, the jurists Al-Shafee and Ahmed suggest

that to satisfy the definition, it should be located in a metropolitan area, pre-

pared to protect a property, and it should be closed or sealed.33

Property is no longer considered protected for the purpose of the theft

offense if the place where the property is located is unveiled. This may

occur if a protected place is breached, is not protected adequately, or if the

actor is authorized to enter the protected place where the stolen property is

located.

Regarding the authorization to enter a dwelling, the majority of schol-

ars, including Abu Hanifa, suggest that an implicit or explicit authorization

to enter a dwelling suffices to unveil it as a protecting place.34 Servants in

dwellings, individuals authorized to enter a dwelling to make necessary

repairs, lessees, and the like, are not subject to thefts original punishment,

hadd, but rather to a discretionary punishment, tazeer,if they committed a

theft. As a general rule, theft committed between relatives is not punishable

by hadd, but by tazeer, provided the actor was implicitly or explicitly au-

thorized to enter. Therefore, according to Abu Hanifa, adult children who

steal from their parents, and theft committed between the siblings who live

in the same home, is not punishable by hadd.35 Al-Shafee and Ahmed

reached a similar conclusion, suggesting that theft committed between lin-ear relatives (e.g., parents, grandparents, great-grandparents and their chil-

dren) is not punishable by hadd.36 However, theft committed between sib-

lings who do not reside in the same place is publishable by hadd.37 Malek,

on the other hand, suggested that parents, grandparents, and great-

grandparents who steal from their children are not subject to haddpunish-ment.38 However, theft committed by children is punishable by hadd.39

32. AL-KASSANY, supra note 21, at 73; IBN AL-HOMAM, 4 SHARAH FATAH AL-QUDEER 240-46.

33. AL-BAHWATEE, supra note 23, at 81.34. AL-KASSANY, supra note 21, at 73.

35. Id. at 75.36. AL-MAKDISI, supra note 23, at 284-86.37. Id.38. MOHAMMED AL-ZARQANI, 4 SHARAH AL-ZARQANI ALA MAWTA AL-IMAM

MALEK 153-66. Malek established his opinion on the Hadith: you and your wealth for yourfather MOSNAD AHMED, Hadith No. 6863.


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Special] Larceny Offenses in Islamic Law 1621Malek also suggested, contrary to Abu Hanifas opinion, that theft commit-

ted between spouses is punishable by haddonly if the property stolen was in

a protected place.40 Others suggest that theft committed by a husband is

punishable by hadd,and not vice versa, because the husband is responsible

for the wifes support.

Since authorization to enter is an essential factor in determining an ac-

tors liability, an owner of a place may not be authorized to enter unless

permission from the lawful possessor is granted. For instance, the lessor

may not enter a dwelling he owns without permission from the lessee. A

lessor entering without permission and thereby committing theft is subject

to haddpunishment unless legally justified to enter (i.e., with an eviction

order).

Determining whether a protected place is unveiled raises practical dif-

ficulties. Generally, if the actor is permitted to enter a dwelling in which

the stolen property is located or if the actor has legal possession of the sto-

len property, the property is not protected with respect to that actor. How-

ever, if the door of the dwelling is open or the dwelling is partly demolished

to allow individuals to enter without effort, there are a number of proposals.

Al-Shafee and Ahmed suggest that the dwelling does not fulfill the defini-

tion of a protected place.41 Therefore, when larceny occurs it is best defined

as embezzlement rather than theft. Thus, according to Al-Shafee and Ah-

med, if an actor breaches a dwelling or opens its door, and did not steal any

property, and thereafter another person entered and stole a property, neither

of them committed a theft. The first did not take any property, thus, his

liability is limited to the damages incurred. The second actor also did not

commit theft because he did not take property from a protected place; there-

fore, he is liable only for embezzlement punishable by discretionary pun-

ishment tazeer. Malek and Abu Hanifa suggest otherwise, that the person

who entered the dwelling and took a property is guilty of theft regardless of

the partial demolition of the dwelling or the door being open.42

The Islamic law scholars explained that the acts constituting theft must

occur concurrently. Accordingly, in the Hanblee school of thought, if an

actor breached a dwelling by striking down a wall or damaging the door and

the owner learned of that breach, yet nevertheless ignored it, and thereafter

the actor entered the dwelling and took a property, he is guilty of embez-

zlement rather than theft.43 The actor in the first instance is culpable only of

damaging the dwelling, since he did not take any property. The actor in the

39. Id.40. AL-ZARQANI, supra note 38, at 162.41. AL-BAHWATEE, supra note 23, at 81; AL-KASSANY, supra note 21, at 74; AL-

MAKDISI, supra note 23, at 255.

42. See AL-KASSANY, supra note 21, at 74.43. AL-BAHWATEE, supra note 23, at 81; AL-MAKDISI, supra note 23, at 249-52.


14/32


second instance is only guilty of embezzlement, because the taking pro-

tected property requirement is absent.44 It should be noted that the breach of

the dwelling does not have any legal effect unless the owner of the dwelling

is aware of the breach.

Regarding a series of thefts committed in the same place, Abu Hanifa

suggested that the actor who committed larceny on more than one occasion,

in the same place, and with stolen property valued each time at less than the

minimum amount required in a theft offense is culpable only of petty theft,

even if the aggregated value of the stolen property equals or exceeds the

minimum amount required in theft.45 In contrast, a number of scholars sug-

gested that a judge must aggregate the value of the property stolen. If the

aggregated value equals or exceeds the required amount, the actor is guilty

of theft punishable by hadd.46 The merit of this opinion appears in cases of

actors who attempt to escape haddpunishment, if they get caught, commit-

ting a series of petty thefts.

Taking property from its protected place is a factual inquiry subject to

the nature of the property, the protected place, the circumstances, and the

custom.47 Property does not satisfy the taken secretly requirement if taken

from a room located in an apartment until the actor removes the property to

outside the apartment. Similarly, property does not satisfy the requirement

until it leaves the entire store. However, taking property located in a safe

box in an airport or a hotel satisfies the requirement once it is removed from

the safe box, rather than from the airport or the hotel. In cases of theft of

crops, fruits, and other perishable items, the original punishment for simple

theft offense is precluded and replaced by a discretionary punishment

tazeer.48

Theft committed between husband and wife presents a more difficult

inquiry. Unanimously, scholars suggest that if the property stolen was not

protected, the original punishment of hadd should not apply.49 However,

scholars disagree upon whether the property located in the family residence

is considered protected as to the husband and wife. Abu Hanifa suggested

that the property is not protected from the husband or wife because the sto-

len property is a sort of common property.50 Malek and Ahmed suggest the

opposite view, implying that although the husband and wife live in the same

residency, each one has independent ownership.51 Therefore, stealing from

44. Scholars in the Al-Al-Shafee school of thought reach a similar conclusion.45. AL-KASSANY, supra note 21, at 77-78.

46. AL-SHERAZEE, supra note 23, at 295.47. See EL-AWA, supra note 1, at 7.48. AL-MAKDISI, supra note 23, at 244-45.49. ABU ZAHRA, supra note 4, at 99.50. IBN HAZEM, supra note 24, at 340.51. AL-ZARQANI, supra note 38, at 162.


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Special] Larceny Offenses in Islamic Law 1623the other constitutes a theft punishable by hadd, providing that the property

stolen was in a safe place and meant to be protected.52

The requirement of taking protected property requires taking full pos-

session of the property, without consent of the owner, and assuming owner-

ship of the property.53 When an owner transfers property possession to an

individual as collateral in a pledge contract, or as a subject of a rental con-

tract, or delivers it according to an act of sale where the price of the prop-

erty was not paid, the crime committed is embezzlement rather than theft.

In this context, transferring possession negates the possibility of theft, al-

though the actor may be liable for other crimes. If transferring possession

was made by force, the actor might be liable for forcible theft.

Transferring possession by a lawful owner who does not possess the

capacity to form a contract (i.e., mentally handicapped or under the mini-

mum age of discretion) may also negate the element of taking secretly

because the individual who lacks the contractual capacity may or may not

have sufficient knowledge or understanding that he is giving up property

possession. In this case, the original punishment of theft is precluded and

replaced by discretionary punishment, tazeer, since the delivery of the prop-

erty raises suspicion as to whether the applicability of the taking secretly

element is sufficient to preclude haddpunishment.54

b. Property Protected by Association

Property protected by association is property that is not located in a

protected place, but is protected because of a certain association (e.g., an

individual possesses custody of it, or is guarding it). For example, move-

able property in places of worship is not protected property unless an indi-

vidual guards it, or it is attended to by a lawful possessor. A broken downvehicle in the street is not protected property unless attended to by an indi-

vidual. Failing to satisfy the protected property requirement does not justify

larceny, but precludes the original punishment of theft (i.e., hadud).

Abu Hanifa suggests that if property is located in a protected place, it

is irrelevant whether it is also protected by association.55 Accordingly, if an

actor stole a property located in a dwelling, it is irrelevant whether the prop-

52. Id.53. ABD AL-QADER ODAH, 2 AL TASHRIAL-GANAIAL-ISLAMI [ISLAMIC CRIMINAL

LEGISLATION] 537 (1977).54. See Hadith (doubt precludes applying Hudud punishments.). The Hadith is

quoted from ABED EL-RAHMAN AL SAYOTEE, AL-ASHBAH WA AL-NAZAAR 122 (1983)(translated by author); see also Hadith (avoid inflicting the fixed punishment of Hadd onMuslims as much as you can; for it is better for the judge to make a mistake in releasing an

offender rather than committing a mistake in convicting an innocent.). SUNAN AL-TIRMIDHI, BOOK OF AL-HUDUD,Hadith No.1424 (translated by author).

55. AL-KASSANY, supra note 21, at 73-74.


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erty was attended to or in the custody of another, or if the door of the dwell-

ing was open or nonexistent.56 On the contrary, the majority of scholars,

including Malek, Ahmed Ibn Hanbel, and Al-Shafee, suggest that property

might be protected by association and placed in a protected place simulta-

neously.57 Therefore, if the place where the property is located is no longer

protected, but the property is protected by association (i.e. attended to by a

lawful custodian), an actor who steals the property is liable for theft punish-

able by hadd.

Various opinions presented explain the nature of the association re-

quired to protect a property. Malek and Abu Hanifa require that the person

who assumes protection of a property must be at a visual distance from the

property.58 Whether that person is asleep or awake is irrelevant so long as

his close proximity to the property was intended to protect the property.59

Al-Shafee requires that the person who assumes protection of a property

must be watchful and capable of protecting the property, whether physically

or by requesting external aid.60 Accordingly, if that person is in a remote

place where no help is available if attacked, the property is not considered

protected. The jurist Ahmed adopted a moderate approach, suggesting that

a person who assumes the protection of the property need not be physically

capable of protecting the property so long as he is watchful of the prop-

erty.61

The question arises whether the fixture of a place (e.g., dwelling) that

was prepared to protect a property can be subject to theft. Abu Hanifa sug-

gests it cannot be because theft requires taking possession of property by

removing it from its protected place.62 Therefore, removing part of the pro-

tected place (such as the door or window of a dwelling) cannot be subject to

theft punishable by hadd. In contrast, the majority of the scholars, including

Malek, Ahmed Ibn Hanbel, and Al-Shafee, suggest that by constructing a

place to protect a property, the place, including its fixtures and contents,

become a protected property.63 Therefore, dwelling fixtures can be subject

to theft since the dwelling is normally prepared to protect its contents.

It should be noted that any property attached to or carried by a person

is a protected property subject to theft punishable by hadd, provided that the

theft occurs without the lawful possessors knowledge and consent. If

property is stolen with knowledge but without consent, the offense commit-

56. Id.57. AL-MAKDISI, supra note 23, at 251-53.

58. AL-KASSANY, supra note 21, at 73.59. Id.60. AL-SHAFEE AL-SAGHER, 7 NAHAYAT AL-MOHTAG FE SHARAH AL-MENHAG 429.

61. AL-BAHWATEE, supra note 23, at 81-84.62. AL-KASSANY, supra note 21, at 74.63. AL-MAKDISI, supra note 23, at 250.


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Special] Larceny Offenses in Islamic Law 1625ted is embezzlement rather than theft, provided that no force or threat of

force is used. If property is taken with the use of force or threat of force, the

actor is liable for forcible theft.

c. Perfect Invasion of the Protected Place Theory

The prominent scholar Abu Hanifa suggests that the taking secretly

element requires not only taking protected property from its place, but also

perfect invasion of the protected place.64 Perfect invasion requires taking

full physical possession of the stolen property while invading the protected

place in which it is located. An illustrative example is the actor who intends

to steal property from a dwelling by inserting an instrument that removes

the property from the dwelling is not culpable of theft because the insertion

of the instrument does not constitute perfect invasion of the dwelling. In

contrast, if the property the actor intends to steal is not in a dwelling, but

rather in a box accessible to the public, the invasion of the box would occurby the actors hand entering into the box and gaining possession of the

property. The majority of the scholars do not support the perfect invasiontheory.65

d. Impact of Perfect Invasion Theory on Multiple Offenders Cases

There are a number of possibilities where larceny is committed by

more than one offender. The first is that all offenders committed the same

act(s). In this case, the culpability of all offenders is identical unless the

personal characteristics of an offender excuse him from liability (i.e., in-

fancy or insanity).

The second possibility occurs when more than one offender partici-pates in a theft in which one offender enters a dwelling and hands over sto-

len property to another offender waiting outside the dwelling. Abu Hanifa

suggests that neither of them has committed a theft since both actors have

not perfectly invaded the protected place (the dwelling) in which the prop-

erty is located.66 The offender who entered the dwelling did not have pos-

session of the property.67 The other, who waited outside, although he briefly

took possession of the property, did not transfer the possession from the

owner to himself.68 The majority of scholars, including Al-Shafee, Malek,

and Ahmed Ibn Hanbel, disagree with Abu Hanifa regarding the offender

who enters the dwelling and takes possession of the property because by

64. AL-KASSANY, supra note 21, at 66.65. AL-MAKDISI, supra note 23, at 259; AL-SHERAZEE, supra note 23, at 297.

66. AL-KASSANY, supra note 21, at 65-72.67. Id.68. Id.


18/32


entering the dwelling and taking full possession of the property, the element

of taking secretly in their opinion is satisfied.69 However, the majority of

scholars agree with Abu Hanifa regarding the offender who waited outside

the dwelling because he did not take a property from aprotected place since

the property was delivered to him outside the dwelling.70

The third possibility is that an actor enters a dwelling while another

waits outside. After the first offender removes the property, the other actor

enters his hand inside the dwelling and takes possession of the property. In

Abu Hanifas opinion, contrary to the view of the majority of scholars, nei-

ther of the actors committed theft because the first actor did not remove the

protected property from its place and the other did not invade the protected

property place perfectly.71

The fourth possibility occurs when an actor inside a dwelling removes

the protected property from its place simultaneously with an actor who re-

mains outside the dwelling and takes possession of the property. In the

opinion of Malek, Ahmed, and Abu Yousef, the taking secretly element is

satisfied for both actors.72 Al-Shafee suggests that the element of taking

secretly is not satisfied for either actor because the inside actor did not

remove the protected property from its place and the outside actor did not

take the property from the protected place.73 Abu Hanifa suggests that nei-

ther committed theft because the outsider did not invade the protected place

perfectly and the insider did not remove the property from its protected

place.74

The fifth possibility occurs when an actor ties the property to a rope,

then another actor pulls the rope along with the property. Al-Shafee, Ah-

med and Abu Yousef suggest that the element of taking secretly is satis-

fied for the outsider who pulled the rope but not for the insider. 75 Abu

Hanifa suggested that the element of taking secretly is not satisfied for

either because the outsider who pulled the rope did not invade the protected

place perfectly and the insider did not take possession.76

The sixth possibility occurs when two actors enter a dwelling and the

first actor waits on the roof while the second collects the property and ties it

to a rope. The first actor pulls the rope and the property outside of the

dwelling. Malek, Abu Hanifa, and Ahmed suggest that the taking secretly

69. AL-KASSANY, supra note 21, at 65; AL-MAKDISI, supra note 23, at 299; AL-SHERAZEE, supra note 23, at 297.

70. AL-KASSANY, supra note 21, at 65.

71. AL-KASSANY, supra note 21, at 66-70.72. AL-KASSANY, supra note 21, at 80; IBN AL-HOMAM, supra note 32, at 243.73. AL-KASSANY, supra note 21, at 80; IBN AL-HOMAM, supra note 32, at 243.

74. AL-KASSANY, supra note 21, at 66-70.75. Id. at 80; IBN AL-HOMAM, supra note 32, at 243.76. AL-KASSANY, supra note 21, at 66-70.


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Special] Larceny Offenses in Islamic Law 1627element is satisfied for both of them.77 However, Al-Shafee suggests that

the element is satisfied only for the actor who removes the property com-

pletely from its protected place.78

3. The Property Stolen Must Have Monetary Value under Islamic Law

The discretionary punishment, tazeer, is the only appropriate punish-

ment if the property stolen either has no monetary value for Muslims (e.g.,

pork or alcoholic drinks) or, according to Abu Hanifa, it has a trivial value.79

The original punishment, hadd, is precluded in the first case because such

property bears only relative value, since non-Muslims value that property

while Muslims do not. Since any doubt precludes the original punishment,

hadd, the relativity of the value of the property induces a sufficient doubt.80

Abu Hanifa suggests that custom is the criteria in determining the

triviality of a property. Dirt normally does not bear monetary value, but if

collected in large quantum, it might have monetary value.81 Similarly, if itwas transformed into bricks, it will bear monetary value. Remarkably, Abu

Hanifa includes non-savable perishable items such as fruit, meat, and fish,into the trivial property category, in contrast to the opinions of Abu

Yousef.82 Because of the overlap between Abu Hanifas triviality require-

ment and the minimum value requirement, the majority of scholars dispute

Abu Hanifas view suggesting that any property that meets the minimum

value required in the theft offense is punishable by the original punishment

hadd.

4. The Value of the Property Stolen Must Equal or Exceed a Certain

Amount

Although undisputed authority in Islamic law requires a minimum

value of stolen property in order to punish an offender by the original pun-

ishment of theft hadd, scholars dispute that requisite minimum value.83 Ac-

77. AL-KASSANY, supra note 21, at 80; IBN AL-HOMAM, supra note 32, at 243.78. IBN AL-HOMAM, supra note 32, at 243.

79. IBN HAZEM, supra note 24, at 352.80. See Hadith (doubt precludes applying Hudud punishments.). The Hadith is

quoted from ABED EL-RAHMAN AL SAYOTEE, AL-ASHBAH WA AL-NAZAAR 122 (1983)(translated by author); see also Hadith (avoid inflicting the fixed punishment of Hadd onMuslims as much as you can; for it is better for the judge to make a mistake in releasing an

offender rather than committing a mistake in convicting an innocent.). SUNAN AL-TIRMIDHI, BOOK OF AL-HUDUD,Hadith No.1424 (translated by author).81. AL-KASSANY, supra note 21, at 67-68; IBN AL-HOMAM, supra note 32, at 226-

32.82. AL-KASSANY, supra note 21, at 67-68.83. See AL-MAKDISI, supra note 23, at 237-38.


20/32


cording to Al-Shafee, the minimum value is a quarter Dinar84 or its equiva-

lent.85 Malek suggests that it is either a quarter Dinar, three Darahims, 86 or

the equivalent.87 Abu Hanifa raised the bar by suggesting ten Darahims.88

The minimum value requirement must be understood in the context of

the other requirements. Therefore, an actor is subject to haddpunishment

by stealing protected property at a value that equals or exceeds a minimum

amount. Accordingly, in a case of multiple thefts, if the value of the stolen

property from each crime scene is below the minimum amount required in a

theft offense, the actor is liable for discretionary punishment, tazeer, rather

than the original punishment hadd. However, if the actor steals property

owned by many people and the aggregated value of the property equals or

exceeds the minimum amount required in hadd punishment, the actor is

liable for hadd.

A stolen propertys value is always determined at the time the offense

is committed. A decrease in the propertys value after being stolen, for ex-

ample due to partial or full destruction or depreciation of the market value,

does not change the definition of the offense or the applicable punishment.89

However, depreciation of the market value is a considerable factor, in Abu

Hanifas view, that the value of the property should be measured at the exe-

cution phase only ifthe property value depreciated.90

Taking ownership of a property after theft, either by act of sale or as a

gift, does not change the definition of the offense.91 However, if the of-

fender gained ownership of the stolen property (e.g., by an act of sale or by

inheritance) before reporting the crime to the proper authorities or demand-

ing the return of the stolen property, it may preclude punishment in some

opinions.92

Islamic law scholars present a number of opinions regarding the ac-

tors knowledge of the stolen propertys value. Al-Shafee adopts an objec-

tive liability approach, suggesting that intent to steal suffices to establish

84. Dinar is a gold currency. See Sahih Muslim, Bk. 17, No. 4175, available athttp://www.usc.edu/dept/MSA/fundamentals/hadithsunnah/muslim/017.smt.html (last visitedSept. 12, 2007) (Aisha reported that Allahs Messenger (the Prophet Mohammed maypeace be upon him) cut off the hand of a thief for a quarter of a Dinar rid upwards.).

85. AL-SAGHER, supra note 60, at 419; AL-SHERAZEE, supra note 23, at 294.86. Darahim is a silver currency. See Sahih Muslim, Bk. 17, No. 4183, available at

http://www.usc.edu/dept/MSA/fundamentals/hadithsunnah/muslim/017.smt.html (last visitedSept. 12, 2007) (Ibn Umar reported that Allahs Messenger (may peace upon him) cut offthe hand of a thief (in case of the theft) of a shield the price of which was three dirhams.).

87. Seeid.88. AL-KASSANY, supra note 21, at 77.89. AL-MAKDISI, supra note 23, at 300.

90. Id.91. Id.92. Id.


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Special] Larceny Offenses in Islamic Law 1629liability. The actors belief of the propertys value is irrelevant to liability.93

In contrast, Ahmed Ibn Hanbel maintains that subjective liability is the cor-

nerstone of culpability in criminal law. Accordingly, to hold an actor liable

for theft punishable by hadd, the actor must be aware that the stolen prop-

ertys value equals or exceeds the minimum monetary value required in a

theft offense punishable by hadd.94

5. Property Owned by Another

Although this element might seem logical, it may raise a number of

considerations in particular situations. Although the majority opinion holds

that an actor must not own the property at the time the offense is committed,

a number of scholars suggest further requirements. Al-Shafee and Ahmed

maintain that the victim must request the stolen property from the actor, and

report the theft to the appropriate authority to apply hadd punishment.95

Accordingly, if the actor unknowingly owned the property, by inheritanceor otherwise, before reporting the theft to the authorities, the punishment of

hadd is precluded but may be substituted by discretionary punishment

tazeer. Malek concluded, however, that the complete crime of theft punish-

able by haddis committed by acquiring a protected property with intent to

deprive the owner of his property.96 The question of reporting the theft to

the appropriate authority and requesting the return of the stolen property

from the actor is irrelevant to liability so long as the victim is aware of thetheft.97 In a very liberal approach, Abu Hanifa suggests that acquiring own-

ership of the property before executing the punishment precludes haddpun-

ishment.98

This element excludes property not owned by a specific individual

(e.g., fish in the sea or wild deer) from the scope of theft. Once a fish iscaught or a deer is hunted and stored in a protected place, the taking se-

cretly of such property establishes liability. Malek suggests that if the law-

ful owner is unknown, but the stolen property is normally owned by an in-

dividual(s) or entity, the actor who stole this property is liable for theft pun-

ishable by hadd.99 Al-Shafee, Abu Hanifa, and Ahmed suggest that the

original punishment hadd is excluded since they require reporting the of-

fense to the authorities and demanding return of the stolen property by the

93. AL-SAGHER, supra note 60, at 420.

94. AL-KASSANY, supra note 21, at 80-97.95. Id. at 88-89; IBN AL-HOMAM, supra note 32, at 256.96. ODAH, supra note 53, at 589.

97. Id.98. AL-KASSANY, supra note 21, at 88-89; IBN AL-HOMAM, supra note 32, at 256.99. AL-ZARQANI, supra note 38, at 153-66.


22/32


owner.100 Abu Yousef adopts a moderate view, suggesting that the punish-

ment ofhaddis excluded unless the actor confessed to the theft.101

Because Islamic law recognizes that a father has a legal right in his

childrens property, and that such right suffices to establish a doubt with

respect to the fathers ownership of such property, a theft committed by the

father might be punishable by discretionary punishment tazeer only.102

Similarly, according to Abu Hanifa, Ahmed, and Al-Shafee, the punishment

ofhaddis precluded in cases of theft committed by one of the owners of a

shared property, or if the property stolen is publicly owned property. 103 On

the other hand, Malek suggests that an owner of shared property might be

liable for theft punishable by hadd if he took more than his share.104 He

made a distinction between unique and replaceable stolen property. He

suggests that if the stolen property is unique, the punishment of haddis ap-

plicable if the stolen propertys value exceeds double the minimum value

required in a theft offense.105 The double value requirement is based on the

logic that the actor already owns one share of the value required in theft

while the other share was owned by the other(s). If the property stolen is

not unique and replaceable (i.e., money), the haddpunishment is applicable

only if the actor stole more than half of the value of the shared property.

To apply hadd punishment, Abu Hanifa and Ahmed require that the

property be stolen from a lawful possessor. Accordingly, the actor who

steals stolen property is liable for discretionary punishment tazeeronly.106

In contrast, Malek and others do not demand such a requirement in view of

the fact that the actor commits a theft of property owned by another.107

Additionally, Abu Hanifa suggests that the non-Muslim who is tempo-

rarily visiting an Islamic state is not liable for haddpunishment but rather

tazeer punishment because, according to the general rule, any doubt pre-

cludes haddpunishment. In this instance, there might be a suspicion that

the actor believes that taking the property of another is justifiable. The

prominent opinion in the Al-Shafee school of thought suggests that such an

actor is liable for haddpunishment only if the actor was informed of the

prohibitory norm of Islamic law and agreed to observe it. The majority in

the Ahmed Ibn Hanbel school of thought suggests that such an actor is li-

able for haddbecause haddpunishment is designed to protect property that

100. AL-SHERAZEE, supra note 23, at 298-300.

101. AL-KASSANY, supra note 21, at 83.102. See Hadith (you and your wealth for your father) MOSAND AHMED, Hadith No.

6863.103. AL-KASSANY,supra note 21, at 70; AL-MAKDISI, supra note 23, at 284.104. IBN HAZEM, supra note 24, at 328-29.

105. Id.106. AL-KASSANY, supra note 21, at 80.107. See AL-MAKDISI, supra note 23, at 257.


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Special] Larceny Offenses in Islamic Law 1631is subject to the social and individual rights of an owner.108 Accordingly,

suggesting otherwise would frustrate the purpose ofhaddpunishment.109

B. Accomplice Liability

Although Islamic law scholars agree that an accomplice deserves pun-

ishment, they disagree upon the degree of culpability and its elements. A

number of scholars maintain that an accomplice is the one who physically

aids the principal in removing property from its protected place.110 Accord-

ingly, the actor who breaks the dwelling door, watches the way, or opens a

dwelling door, does not satisfy the definition of accomplice punishable by

hadd.

Those scholars who require the physical act of removing the protected

property suggest various criteria to establish the physical act requisite. Abu

Hanifa suggests that the definition of complicity in a theft offense is not

satisfied unless the accomplice physically entered the protected place.111However, the physical removal of property from its protected place is ir-

relevant to liability since an accomplice might provide physical or logisticalsupport.

In the Al-Shafee school of thought, scholars suggest that the accom-

plices liability is always less than the principals liability; therefore, an

accomplice is punishable by discretionary punishment, tazeer, rather than

by hadd.112 In their theory of accomplice liability, they require two condi-tions in order to punish an accomplice by the original punishment hadd.

First, an accomplice has not committed a theft offense unless he removed

the property from its protected place.113 Second, if more than one accom-

plice removed the property from its protected place, the stolen propertys

value must exceed the minimum value required in a theft offense after thevalue is divided among the number of accomplices.114 If each individual

accomplice removed a portion of the property, the value of each portion

must exceed the minimum value required in a theft offense.115

C. Attempt

An actor is guilty of attempt if he took the initial steps to achieve his

purpose. Accordingly, the actor who inserts an instrument into the door

108. Id. at 276.109. Id.

110. AL-KASSANY, supra note 21, at 66.111. IBN AL-HOMAM, supra note 32, at 225.112. AL-SAGHER, supra note 60, at 421; AL-SHERAZEE, supra note 23, at 249, 297.

113. AL-SHERAZEE, supra note 23, at 249, 297.114. Id.115. Id.


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lock trying to open it to steal property inside, and the actor who lays and

waits for a security guard to be distracted in order to steal the protected

property, are both guilty of attempt. In this context, it is highly important to

distinguish between the completed crime and a mere attempt. The Zahree

school of thought suggests that a crime of theft is completed by taking pos-

session of property owned by another with intent to claim ownership.116

Taking possession of the stolen property does not necessarily mean taking

exclusive custody. The actor who entered a dwelling and took property

intending to steal it is guilty of theft punishable by the original punishment

hadd,even if the stolen property did not successfully exit the house.117 The

position of the Zahree school of thought seems to suggest that the distin-

guishing factor between the complete offense and the attempt is the initia-

tion of taking possession of the stolen property, rather than taking full cus-

tody.

The majority of scholars, on the other hand, suggest that the crime of

theft is not completed unless the actor takes full possession of a protected

property and removes it from its protected sphere.118 For instance, the crime

of theft of property located in a dwelling is not completed unless the actor

removes the property from the entire dwelling. Removing the property

from one room to another in the same dwelling does not satisfy the theft

requirement of taking full possession of a property. However, entering an

apartment building that consists of multiple dwellings, and taking the stolen

property from one apartment to another satisfies the taking full possession

theft requirement. Similarly, the crime of theft of a bag located beside its

owner is not completed unless the actor successfully removes the bag from

its place.

Abu Hanifa suggested that an offender is guilty of a complete theft of-

fense if caught after attempting to deprive the owner of possession of the

stolen property, but before taking full possession.119 However, in that case,

the appropriate punishment is the discretionary punishment tazeer rather

than the original punishment hadd. An example of this hypothesis is the

actor who enters a dwelling intending to steal property. Assume that instead

of taking full possession, he throws the property out of the window, intend-

ing to pick it up when leaving. If this offender is caught before picking up

the property, he is guilty of theft, but the punishment will be tazeer.120

In sum, while the Zahree school of thought scholars draw a distinction

between theft and attempted theft on the grounds of initiating taking full

possession of the stolen property, the majority of the scholars require actu-

116. ODAH, supra note 53, at 633-34.117. Id.118. Id. at 634.119. AL-KASSANY, supra note 21, at 65.120. ODAH, supra note 53, at 523-24.


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Special] Larceny Offenses in Islamic Law 1633ally taking possession, which involves removing the stolen property from its

protected sphere. It seems Abu Hanifas position is similar to the majority

opinion. Although he labels the attempt to deprive an owner of property as

a complete theft offense, the punishment he endorses in this scenario is the

typical punishment for attempt, the discretionary punishment tazeer.D. Punishment

1. The Original Punishment (Hadd Punishment)

The original punishment for theft is hadd, which means the amputa-

tion of the right hand of the offender.121 It is not permissible after proving

the offense beyond all doubt to delay the execution of the punishment by

imposing any other alternative punishment, such as a financial penalty.122

Authorities should not show leniency once the crime is proven.123 The Is-

lamic legislature aims to educate and rehabilitate the offender by imposing atheft penalty, and to show great mercy to society by fighting the crime of

theft aggressively.124 The punishment might seem harsh and unnecessary,

but it is likened to amputating the limb that suffers from cancer to save the

entire body.125 Although the punishment might be seen as evil in itself, it is

necessary to achieve its purpose.126

However, the application of the original punishment haddis restricted

to cases where (1) the culpability of the offender is established by proving

all the elements of a theft offense and negating all defenses beyond all doubt

(e.g., the offenders age is equal to or above the minimum age of discretion,

or no excuses are available to the offender such as necessity, duress, or in-

sanity); and (2) a complaint is initiated to the proper authority.127 The of-

fense of theft cannot be prosecuted unless the victim formally complains to

121. The Holy Quran, Sura Al-Maidah 5:38-39 (Cut off the hands of thieves,whether they are male or female, as punishment for what they have done a deterrent from

God: God is almighty and wise. But if anyone repents after his wrongdoing and makesamends, God will accept his repentance. God is most forgiving, most merciful.) (translatedby author).

122. IBN TAYMIA, supra note 29, at 105.

123. Id.124. Id.125. Id.126. Id.127. Generally, an offenders repentance is accepted if the offender has not yet been

caught. Once caught, repentance does not preclude the punishment. However, the prophetencourages tolerating the hudud before it is reported to the authorities. The Prophet Mo-hammed said, Forgive the infliction of prescribed penalties among yourselves, for any pre-

scribed penalty of which I hear must be carried out. Sunan Abu-Dawud, Bk. 38, No. 4363,available at http://www.usc.edu/dept/MSA/fundamentals/hadithsunnah/abudawud/038.sat.h-tml (last visited Sept. 12, 2007).


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the proper authorities. Remarkably, the spirit of Islamic law encourages

tolerance and forgiveness of the offender so long as no formal complaint is

filed. The victim has the preferred and encouraged option of forgiving the

offender and thereby retrieving the property, or supporting the general and

private deterrence punishment rationale by filing a complaint.

2. Discretionary Punishment (Tazeer)

Discretionary punishment is any punishment that is less severe than

the original punishment.128 Determination of the nature of the discretionary

punishment and the method of execution is subject to the unrestricted as-

sessment by the authorities in the Islamic state at any given time dependent

on the circumstances, including the economic status of the state and its so-

cial circumstances. The discretionary punishment, tazeer, might be appro-

priate when one of the essential elements of hadd punishment is lacking

(e.g., the property is not protected), or there is slight doubt that the offenseof theft was committed (e.g., suspicion that the ownership of the stolen

property arises from joint ownership or the offender steals his childs prop-erty) or in the case of attempted theft.

IV. PETTY THEFT

Principally, petty theft is a theft offense. All of the requirements of a

theft offense listed above must be present. The only discrepancy between

theft and petty theft is that the value of the stolen property is trivial, falling

below the minimum value of the stolen property required in a theft of-

fense.129 The punishment for a petty theft offense is a discretionary punish-

ment, tazeer, in which the same rules of the discretionary punishment oftheft apply.

V. FORCIBLE THEFT (HIRABA)

A. The Offense

Forcible theft is acquiring (or attempting to acquire) the property of

another with the owners knowledge, against his will, and with the use of

force or threat of force.130 The gravity of this crime is manifested in the

128. SUNAN AL BAYHAQE, Hadith No. 18075 (Whoever punishes with the punish-

ment of a Hadd offense without committing that Hadd is an aggressor.).129. See Sahih Muslim, Bk. 17, No. 4175, available athttp://www.usc.edu/dept/MSA/fundamentals/hadithsunnah/muslim/017.smt.html (last visited

Sept. 12, 2007) (Aisha reported that Allahs Messenger (may peace be upon him) cut offthe hand of a thief for a quarter of a dinar and upwards.).

130. ODAH, supra note 53, at 514-15.


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Special] Larceny Offenses in Islamic Law 1635unlawful taking of a property openly by using force or threatening force,

which constitutes a serious threat of lawlessness and disorder. The core

characteristics of forcible theft are obvious in the offenders rebellious acts

against the government, which are represented in the overt criminal acts that

challenge governmental authority. In typical cases, forcible theft triggers

crimes such as assault, rape, and homicide.131

The offense of forcible theft might be committed by:

(1) attempting to acquire property by force in which the actor(s)

poses a threat to the public peace in a public place where neither a

property is acquired nor death resulted from the attempt;


poses a threat to the public peace in a public place where a property

is acquired, but no death resulted from the attempt;

(3) attempting to acquire property by force in which the actor(s)poses a threat to the public peace in a public place where a property

is acquired, and death resulted from the attempt; and


poses a threat to the public peace in a public place where no prop-

erty is acquired, but death resulted from the attempt.

The elements of forcible theft are almost identical to the elements of a

theft offense: the property stolen must be a protected property, owned by

another, with monetary value under Islamic law. The additional element

distinguishing forcible theft is the use or threat of force.

In calculating the minimum value required in a theft offense, Abu

Hanifa and Al-Shafee conclude that to hold an actor(s) liable for forcibletheft, after dividing the stolen propertys value by the number of actors,

each actors share should meet the minimum value required in a theft of-

fense.132 Ahmed Ibn Hanbel disapproves of this division methodology, sug-

gesting that all actors are liable for forcible theft if the aggregated value of

the stolen property meets the minimum value required in a theft offense. 133

Malek and a number of scholars do not require a minimum value of a prop-

erty in a forcible theft offense.134

The majority of scholars suggest that the culpability of a forcible theft

offense is established only if the actor is a Muslim or non-Muslim resident

131. ABU ZAHRA, supra note 4, at 67.132. AL-MAKDISI, supra note 23, at 313; see also AL-BAHWATEE, supra note 23, at91; AL-KASSANY, supra note 21, at 92; AL-SHERAZEE, supra note 23, at 302.

133. AL-MAKDISI, supra note 23, at 313; see also AL-BAHWATEE, supra note 23, at91; AL-KASSANY, supra note 21, at 92; AL-SHERAZEE, supra note 23, at 302.

134. AL-SHAFEE AL-SAGHER, 8NAHAYAT AL-MOHTAGFE SHARAH AL-MENHAG 5.


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in an Islamic state.135 Consequently, the non-Muslim and non-resident actor

who commit acts that are deemed to be forcible theft are liable for theft,

assault, or homicide, as the case may be. Only a limited number of schol-

ars, including the Zahree school of thought, exclude the non-Muslim resi-

dent from this category by suggesting that the non-Muslim resident, in pos-

ing a threat to the public peace, violates only the implied safety and security

contract with the Islamic state.136 It follows that by committing a theft, as-

sault, and/or homicide, he is liable only for these offenses, not forcible

theft.137

Scholars present various views regarding the force/threat of force re-

quirement in forcible theft. Abu Hanifa and Ahmed Ibn Hanbel require

using an instrument capable of causing a genuine threat.138 The instrument

might be a weapon or any other instrument capable of causing harm. 139 On

the other hand, Al-Shafee, Ibn Taymia, and Zahree schools of thought

scholars do not propose such a requirement, suggesting that the physical

force of the actor suffices to cause harm.140 Malek expands the scope of the

forcible theft offense by including fraudulent acts as a substitute to using or

threatening force.141

A number of scholars, including Malek and Al-Shafee, suggest that

the crime of forcible theft may occur in either remote or metropolitan ar-

eas.142 Ibn Taymia explained that the more severe punishment of forcible

theft, in comparison to theft, is proportional to the harm that occurred.143

Accordingly, the offenders of forcible theft crimes deserve the severe pun-

ishment that accompanies forcible theft, especially if the crime is committed

in metropolitan areas because of the greater need for peace and security in

residential areas.144

135. EL-KORTOBY, supra note 10, at 379.136. AL-MAKDISI, supra note 23, at 310.137. AL-MAKDISI, supra note 23, at 319; IBN HAZEM, supra note 24, at 315.138. AL-BAHWATEE, supra note 23, at 89.

139. Id.; AL-KASSANY, supra note 21, at 90; IBN HAZEM, supra note 24, at 109; AL-MAKDISI, supra note 23, at 304.

140. IBN TAYMIA, supra note 29, at 89.141. 10 AL MOGHNEE WA-AL SHARAH AL KABEER 304.142. According to Ibn Taymia, this is the opinion of Malek, Al-Al-Shafee, most

colleges of Mohamed (the scholar, not the prophet). and some Hanfi Scholars. IBN TAYMIA,supra note 29, at 89; see also AL-SAGHER, supra note 134, at 5. However, Abu Hanifa con-cludes that the crime of forcible theft may occur only in remote areas. See AL-KASSANY,

supra note 21, at 92; IBN AL-HOMAM, supra note 32, at 274.143. IBN TAYMIA, supra note 29, at 89; see also IBN HAZEM, supra note 24, at 308.144. IBN TAYMIA, supra note 29, at 89.


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Special] Larceny Offenses in Islamic Law 1637B. Punishment

Forcible theft is a crime with a twofold harmful effect. Although it

harms the individual victim, its greater negative impact is on society, by

disrupting social peace and paralyzing commerce and every day activities, if

it is widespread. Because this crimes harm is very broad in range and be-

cause it implies a challenge to the government and entire social order, its

punishment is the most severe Islamic law offers. The punishment of forci-

ble theft is stated in the Quran as follows:

Those who wage war against God and His Messenger and strive to spread corrup-tion in the land should be punished by death, crucifixion, the amputation of an al-

ternate hand and foot, or banishment from the land: a disgrace for them in thisworld, and then a terrible punishment in the Hereafter . . . .145

Although the punishment is clearly stated, it was subject to interpreta-

tion. Ibn Taymia, supported by Ibn Abass interpretation, concluded that ifthe offender kills and takes the property, he should be killed and crucified.146

If he kills and did not take the property, he should be killed.147 If he took the

property and did not kill, his hand and leg should be cut off from the oppo-

site side (right hand and left leg or left hand and right leg).148 If he neither

killed nor took the property, he must be exiled from the state.149

Malek suggests that a judge who hears a forcible theft trial that en-

compasses various prohibited acts, such as theft, homicide, and assault, has

the option of imposing any punishment listed in the verse of Quran, includ-

ing exile, execution, crucifying, or amputating a hand and a leg from oppo-

site sides.150 In making such a determination, the judge should take into

consideration the public interest and penal policy.151 Accordingly, if one

fairly predicts that a lenient punishment is insufficient to deter an offender

from subsequently committing another offense, the punishment should be

death or crucifixion.

The other three major schools of thought have various proposals re-

garding the prohibited acts committed. Abu Hanifa and Ahmed Ibn Hanbel

conclude that the offender who poses a threat to the public peace and did

not kill, assault, or steal property, ought to be exiled from his state. 152 Al-

Shafee suggests that the judge has the option of exiling the offender(s) or

145. The Holy Quran, Sura Al-Maidah 5:33 (translated by author).146. IBN TAYMIA, supra note 29, at 82.

147. Id.148. Id.149. Id.

150. EL-KORTOBY, supra note 10, at 380.151. Id.152. AL-MAKDISI, supra note 23, at 313; see also AL-KASSANY, supra note 21, at 93.


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imposing other discretionary punishment(tazeer).153 Al-Shafee, Ahmed Ibn

Hanbel, and Abu Hanifa suggest that if an offender steals property and nei-

ther assaults nor kills, he ought to be punished by a hand and a foot amputa-

tion from the opposite sides.154 If an offender(s) has committed homicide

and did not steal, Al-Shafee and Abu Hanifa suggest that he should be killed

for the homicide committed.155 Malek maintains that a judge has the option

of imposing the death penalty, or the death penalty with crucifixion.156

Other scholars suggest that a judge has the option of imposing any punish-

ment mentioned in the verse of Quran.157 If an offender has killed and sto-

len, Al-Shafee and Ahmed Ibn Hanbel suggest that he should be killed and

crucified.158 Abu Hanifa, on the other hand, suggests that a judge has the

option of amputating the offenders hand and a leg from the opposite side,

and then killing or crucifying until death.159 Malek concludes that a judge

has the option of killing or crucifying until death.160

Additionally, the ramifications of the mental element (i.e., intention to

kill) of the homicide incidental to forcible theft was subject to interpreta-

tion. While Malek and Abu

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