The verse in question will be given then a discussion will be presented. It should be noted that like all punishments relating to members of a society, they are only enforceable if such a society is governed by the laws of The Quran. In such a society, it is a requirement for believers to provide for those in need [2:177, 2:215, 2:219, 5:89, 59:7].
The male thief, and the female thief, you shall mark, cut, or cut-off their hands/means as a recompense for what they earned, and to serve as a deterrent from God. God is Noble, Wise. Whoever repents after his wrongdoing and makes amends, then God will relent on him. Truly, God is Forgiving, Merciful. [5:38-39]
The above verses are commonly translated to mean physical cutting off the thief's hand or hands, however whilst this understanding is a theoretical possibility, when all the information is reviewed it is only one of several possibilities, hence the above translation. Firstly, it should be noted that the verse makes clear whoever commits theft but repents after and makes amends, then this is acceptable to God, thus no punishment can be administered in this case. This of course would only apply to those who do this before they have to be tried and found guilty. To prove this, see the verse below in which being punished is contrasted to relenting:
There are some who await God's decree whether He will punish them or relent on them. God is All Knower, All Wise. [9:106]
And how repenting and making amends shows a true repentance, thus reinforces the notion that a true/sincere repentance is accepted:
And whoever repents and takes corrective
action, certainly he turns toward God with true repentance.
The Arabic word translated as "cut" in 5:38 is "iqtaa" and occurs 14 other times in the same verb form (QaTaA) in The Quran, and with the exception of 59:5 and possibly 69:46 all other occurrences mean the non-physical or metaphorical action of "cutting off relationship" or "ending" [2:27, 3:127, 6:45, 7:72, 8:7, 9:121, 13:25, 15:66, 22:15, 27:32, 29:29, 56:33].
The derivatives that are read in the 2nd verb form (QaTTaA) occur 17 times. This form, which expresses intensity or frequency of the action, is used both to mean physical cutting off [5:33, 7:124, 20:71, 26:49, 13:31] and metaphorical cutting off [2:166, 6:94, 7:160, 7:167, 9:110, 47:15, 47:22, 21:93, 22:19, 23:53] as well as physically cutting/marking [12:31, 12:50]. It is interesting to note that even though 12:31 uses the more intensive verb form and both "cut" and "hands" together, it does not mean "cut off". The less intensive form is used in 5:38.
Secondly, the Arabic word for
"hands" (aydi) is often used in The Quran in a
metaphorical/metonymical manner [some examples are 2:195, 2:237,
3:3, 3:73, 5:64, 6:93, 8:70, 9:29, 23:88, 28:47, 30:36, 38:45,
48:10, 48:24, 111:1], and often has a meaning of
power/means/sustenance. Interestingly, when it means
"sustenance" the plural is always used, as used in 5:38.
It should also be noted that this word is in the Arabic plural meaning 3 or more hands, whilst only two people are referenced: the male and the female thief. Some have commented that this plural usage causes problems for the common interpretation of hand cutting.
Thirdly, the word يَد (singular: yad, plural: aydi) in Arabic can refer to any part of the human arm; up to and including the shoulder joint. Therefore, it can refer to the hand from the fingertips up to the wrist, or up to the elbow, or up to the shoulder joint. There is no specification in verse 5:38 as to the point at which the aydi should allegedly be severed - which is unusual - whereas for ablution in 5:6 it specifies how much is to be washed (e.g. it says "wash your aydi upto the elbows").
One other potential problem is created if 5:38 means to physically cut off the hand or hands of the thief, when we consider what were to happen if a person had no hands or had been punished before hence had no more hands to cut/mark or cut off.
Also, when lashes are given as punishment for proven adultery, The Quran states not to let pity/compassion prevent you from carrying out such a punishment [24:2], but it says no such thing for the alleged hand cutting-off verse, when many consider this punishment to be worse. This adds to the possibility that it should not be taken to mean this.
Thus, it is possible to understand
the punishment for thieves in four alternative ways:
(1) cutting off their hands
(2) cutting or marking their hands
(3) cutting their means/power to steal, e.g. detention/jail.
(4) cutting their sustenance, e.g. in order to compensate the value of the theft.
It does seem the punishment could be flexible depending upon the time, circumstances and severity of crime - it is up to the society to choose one of these meanings or a combination of them depending on the severity of the crime and their ability to enforce the penalty.
It should be said however
that the only working example given in The Quran of theft
and its punishment is in the story of Joseph:
They said, "By God, you know we did not come
to cause corruption in the land, and we are no thieves!"
He said, "What shall be its recompense, if you are not truthful?"
They said, "Its recompense is that he who has it in his bag, then he is its recompense. Like that do we recompense the wrongdoers."
Furthermore, 12:79 makes it clear that Joseph (described in 6:84 as one of the guided and a good doer) was acting in accordance with God's law in detaining only the one guilty of theft:
Joseph said: “God forbid that we would detain anyone except he whom we found our belongings with. Indeed, we would then be wrong doers.” [12:79]
Thus, one possible meaning of 5:38 is to apply it in the manner provided by Joseph's example: the suspected thief is given a chance to confess and return the stolen goods, if not, then if found guilty, would be detained, for a set time and/or in order to work off the cost.
Lastly, whatever interpretation is chosen, it is important to keep in mind the recurring theme of equivalence in The Quran, thus the punishment should be proportionate to the crime:
And those who, when gross injustice befalls them, they seek justice. The recompense for a crime shall be its equivalence, but whoever forgives and makes right, then his reward is upon God. He does not like the wrongdoers. [42:40]
To conclude, when all the above information is taken into account, it is clear that to physically cut off the hand or hands of the thief is not the only possible understanding and taking into account the law of equivalence would perhaps only be reserved for significant theft which led to harming others, hence harming the perpetrator. If a Muslim in authority, like Joseph was, were to apply the punishment for theft like Joseph did, then they would be following the example of one of the guided and a good doer, as stated by The Quran.
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