Episode 7 - The Misconception About Suspending the Theft Penalty During Famine

Peace be upon you and the mercy of Allah.

Brothers, followers of the series "Nusrah for the Shariah," let us organize our thoughts in the fourth episode titled "What Kind of Gradualism Are We Talking About?" This is an important episode that I hope you will follow again. I mentioned that all that the defenders of gradualism in the application of the Shariah present is one of two things:

Either it is actually evidence of prioritization in presenting and explaining the Shariah to people, not gradualism, and I explained that in the previous two episodes. Or it is evidence of stopping a specific Shariah ruling in accordance with the Shariah, because the conditions of this Shariah ruling have not been met, so it is necessary to act upon another Shariah ruling. This is what we will begin discussing in this episode.

The Misconception of Suspending the Punishment for Theft During Famine

Brothers, the most common objection I have received so far in this series is that Umar, may Allah be pleased with him, suspended the punishment for theft during the famine. How do the brothers understand this matter? When Umar saw that people were afflicted with poverty and hunger, and they stole to save their lives, his intellect ruled, and he set aside part of the Shariah because he saw that the circumstances did not permit the application of this part of the Shariah.

Of course, this understanding is a great mistake. First, I would like to point out that this report that Umar suspended the punishment for theft during the famine has not been authentically established from him. Ibn Abi Shaybah narrated it in his Musannaf with a chain containing two unknown narrators, as Al-Albani mentioned in "Irwa al-Ghaleel."

In any case, this does not affect our issue here, because if it actually happened that people stole during the famine out of necessity, then Umar would not have enforced the punishment for theft on them. Why? Because the Shariah commands him not to enforce the punishment for theft in this case.

Conditions for Implementing the Punishment for Theft

There must be conditions indicated by the correct evidence for the application of the punishment for theft. These conditions are:

• That the taking of the item is done secretly.
• That the stolen item is respected money, not something that is forbidden.
• That the stolen item reaches the minimum amount required (nisab).
• That the thief takes what he stole from where it is usually kept.
• That the theft is proven by the testimony of two just witnesses or by the thief's confession twice.
• That the owner of the stolen item demands his money back.
• That the thief has no excuse regarding this money.

If these conditions are not met, it is not permissible for the ruler according to the Shariah to cut off the thief's hand.

If we say that one of the conditions is that the stolen item must reach the nisab, which is a quarter of a gold dinar. A gold dinar is 4.25 grams of gold, so a quarter of a dinar is approximately one gram of gold, meaning more than 300 Egyptian pounds and more than 50 US dollars these days. The one who steals to eat will not need to steal this amount or food of this value. The Shariah does not command the cutting off of a hand for the theft of a loaf of bread or a chicken or something that satisfies hunger.

Let us assume that in the year of famine, food prices skyrocketed, and the poor person, out of necessity, stole something that reaches the nisab, stole food or the price of food that equals one gram of gold. In this case, the Shariah prevents the implementation of the punishment on this thief, because one of the conditions for implementing the punishment is that the thief has no excuse regarding the money. The thief is compelled, so this excuse prevents the implementation of the punishment on him by the command of the Shariah, because he stole out of compulsion, being hungry and poor and not finding what to satisfy his hunger.

The Shariah Itself Prevented the Implementation of the Punishment

Brothers, the matter is simple: the Shariah itself prevented Umar, may Allah be pleased with him, from implementing the punishment on the compelled thief, so he has no choice but to submit to the Shariah and not cut off in this case. This is a ruling from within the Shariah, not that Umar suspended the Shariah and acted according to his own opinion. The punishment was not required in the first place; the punishment was not required in the first place for Umar to drop it or suspend it.

So Umar, may Allah be pleased with him, did not say, "We will suspend this human law outside the Shariah this year because the situation does not permit the application of the Shariah," but he applied the Shariah and nothing but the Shariah. For Allah the Almighty did not make the punishment for theft for one who steals to save himself from destruction or severe hunger. It is known that necessity makes permissible for a person what is not permissible for others. The one who does not find what to eat is allowed to eat carrion, blood, and pork, and if the rich does not give it to him voluntarily, it is permissible for this poor hungry person to steal what saves his life.

In other words, if Umar had implemented the punishment in this case, he would have sinned. Note, if Umar had implemented the punishment in the year of famine on the compelled thief, he would have sinned, because if he had implemented the punishment, he would have acted contrary to the Shariah, contrary to the Shariah.

Example of Unintentional Killing

Now, if a Muslim unintentionally kills another Muslim, what is his ruling in the Shariah? He must pay the expiation and his family must pay the blood money. Is he to be killed? Of course not, because he killed unintentionally. If the ruler comes and kills him, is he correct? Of course not, but he would have sinned and committed a crime of killing for which the Shariah punishes. Do we say that the ruler should suspend the Shariah ruling in retaliating against the killer? Of course not, he does not suspend the Shariah ruling in this case, but we say that the condition of intentional killing was not met to allow the ruler to retaliate. So this unintentional killer has another ruling from the Shariah itself, from the Shariah itself, his ruling is expiation and blood money on his family. Thus, the case of this compelled thief, his ruling is not cutting off in the Shariah, but the Shariah prevents the implementation of the punishment on him. The matter is purely a matter of jurisprudence, not the application of reason instead of the Shariah.

The Opinion of the Scholars of the Nation on the Matter

A question arises: Between us and Umar, may Allah be pleased with him, there are more than 14 centuries. Did any scholar of the nation throughout these centuries say that this narration of Umar is evidence for the permissibility of gradualism in the application of the Shariah? Did any scholar understand this understanding that we hear these days? Did any scholar of our righteous predecessors say that Umar suspended the application of something from the Shariah? Did Abu Hanifah, Malik, Shafi'i, Ahmad, Ibn Taymiyyah, Al-Ghazali, or Ibn Al-Qayyim say that? Did any scholar of the nation say that?

But look at how the scholars of the nation present this matter. Ibn Al-Qayyim said in "I'lam Al-Muwaqqi'in": "If the year is a year of famine and hardship, and need and necessity prevail over the people, the thief can hardly be saved from necessity that drives him to what satisfies his hunger. It is obligatory upon the owner of the wealth to give him that, either for a price or for free, with a difference of opinion on that. The correct view is that it is obligatory to give it for free due to the obligation of mutual support and reviving the souls with the ability to do so and preferring the favor with the necessity of the needy."

This means that in this case, in the year of famine and poverty, it is originally obligatory upon the rich to spend his wealth voluntarily for the poor, this is a right for the poor in his wealth. He said: "And this is a strong excuse that prevents the cutting off of the hand of the needy, especially since he is permitted to compel the owner of the wealth to take what satisfies his hunger." This means, brothers, in the year of famine, the compelled poor person has the right to take the money by force from the rich in the amount that satisfies his hunger.

He said: "In the year of famine, the needy and the compelled increase, and it is not possible to distinguish between the one who is self-sufficient and the one who steals for no need from others, so they are confused, and the one on whom the punishment is obligatory is confused with the one on whom it is not, so the punishment is removed." That is, even if we assume that Umar, may Allah be pleased with him, suspended the punishment for theft generally that year, the reason for that is that he cannot distinguish between the compelled and the non-compelled in this theft.

Then Ibn Al-Qayyim said: "Yes, if it becomes clear that the thief has no need and he is self-sufficient from theft, then cut off." Note, he said: "Yes, if it becomes clear that the thief has no need and he is self-sufficient from theft, then cut off." If the matter is assumed that Umar actually suspended the punishment for theft that year, it was not a general suspension ruling for all thieves, but if it is proven that a specific person stole and he is not in need of this theft and the other conditions considered by the Shariah that we mentioned are fulfilled, then the punishment will be implemented on this thief in this case.

Islamic Law Considers People's Circumstances

Brothers, Allah the Most High has made His Shariah lenient, considering people's circumstances, taking into account necessity, coercion, and ignorance that may excuse a person. Being lenient with people is achieved by applying the Shariah as it is. Being lenient with people is achieved by applying the Shariah as it is. Whoever wants to suspend the Shariah out of pity for people due to its severity, either he is ignorant of the Shariah's rulings and its consideration of necessity, coercion, and the excuse of ignorance, and this is a bad assumption about the Shariah. Or he thinks himself more lenient with Allah's servants than their Lord, glorified and exalted be He, and this is also a bad assumption about the Shariah. Allah's Shariah is more merciful than that.

There are environments where Islamic rulings do not reach. For example, we have seen that there are regions in Upper Egypt where people do not know how to read Al-Fatiha or even know the name of the Prophet peace be upon him, as a result of the ignorance practiced by the corrupt system for decades. Now, if an Islamic rule comes to these regions and finds people drinking alcohol, using drugs, and dealing with usury while they are ignorant of the prohibition of these things, will the Islamic system impose the punishment for alcohol on them, penalize them, and punish them for using drugs and usury? Of course, he will not punish them or penalize them or impose the punishment for alcohol on them. Why? Because people were ignorant of the prohibition of these things, and many of them are excused for their ignorance, as they grew up in ignorant, poor, and remote environments from knowledge, as a result of this criminal system that ruled them for this long period.

And one of the conditions for punishing a prohibited act is that the doer knows it is prohibited. At that time, the duty of the state is to teach people in these regions the prohibition of these evils. If someone drinks alcohol after that, he will be lashed, because the conditions of the punishment are fulfilled. If we imagine that a system came and cut the hand of the desperate thief and lashed the ignorant drunkard who is excused for his ignorance, then we will be the first to stand in his way and write a series entitled "Defending the Shariah" as well.

Applying a ruling whose conditions are not met and neglecting the appropriate ruling for the situation is also a suspension of the Shariah. Not taking necessity, coercion, and ignorance into account is a violation of the Shariah. Lashing someone who should not be lashed and punishing someone who does not deserve punishment according to the Shariah is a suspension of the Shariah. Therefore, we will not agree with a system that does such things.

Episode Summary

Umar did not impose the punishment for theft in the year of famine while applying the Shariah, because the conditions for the punishment were not met. Umar did not suspend anything from the Shariah or act according to his own opinion instead of it.

Peace be upon you and the mercy of Allah.