Are ḥudūd— fixed penalties in Islamic law, such as the ḥadd for theft—inhumane or barbaric?

To begin with, it should be noted that it is not surprising that ḥudūd (fixed penalties in Islamic law) were severe in the public order—that is, the legal and social system—of Dār al-Islām (lit. the Abode of Islam). This was partly because pre-modern legal systems relied on severe punishments to compensate for the lack of effective policing and law enforcement. Hand amputation—the ḥadd (fixed penalty) for theft—is one of the penalties that people in the West commonly associate with Islam and often view as cruel. However, what they fail to understand is that the ḥadd for theft is not inflicted for merely stealing, but because of other crimes associated with theft that may escalate to the level of murder. That is why there are many cases of theft in which the ḥadd is not inflicted, as they do not involve putting the lives or honour of innocent people at risk. The Prophet (PBUH) exempted several types of misappropriation from the ḥadd punishment. For instance, if someone steals something under their care—such as a guard or a storekeeper—their hand is not to be amputated. The Prophet (PBUH) said:“There is no hand amputation for the one who betrays a trust, the one who snatches [something and runs away], and the pilferer.”¹ Likewise, if a person steals fruit from a tree, their hand is not to be amputated. The Prophet (PBUH) said: “The hand is not to be amputated for [stealing] fruit or the pith of the palm-tree.”² Imām Malik reported in his al-Muwaṭṭaʾ that the Prophet (PBUH) said: “The hand is not to be amputated for [stealing] fruit that is hanging (i.e., still attached to the tree) or for sheep kept in the mountains.”³ Similarly, if someone steals from the bayt al-māl (the public treasury), their hand is not to be amputated. In his as-Sunan al-Kubrá, Imām al-Bayhaqī narrated that ʿAlī ibn abī Ṭālib [may Allāh be pleased with him] said: “The hand is not to be amputated for stealing from bayt al-māl.”⁴ Hence, the ḥadd is not enforced for theft per se; otherwise, the hands of those who commit theft in the previously mentioned categories would be amputated. The point is that thieves in these scenarios most likely carry out their act of theft without endangering the lives or honour of innocent people. Therefore, the ḥadd is not inflicted on them, even if the stolen item is valuable. In other words, had the ḥadd for theft been ordained for theft in and of itself, it would have been enforced in every case of theft. And Allāh knows best! Moreover, the penalty of amputation is suspended during severe famine when people steal food for their survival because to apply the law in this context would lead to injustice. ʿUmar ibn al-Khaṭṭāb [may Allāh be pleased with him] said: “The hand is not to be amputated for [stealing] ʿaḏq or in a year of famine.” As-Saʿdī said: I asked Aḥmad ibn Ḥanbal about this ḥadīth, and he said: “‘ʿAḏq’ refers to the date palm, and a ‘year of famine’ means a year of severe scarcity. I asked Aḥmad, “Do you hold this view?’’ He said, “Yes...’’ I asked, “So if someone steals in a famine, his hand is not to be amputated?’’ He said, “No, if necessity compels him to do so and the people are in famine and severe hardship.’⁵ Furthermore, when Ibn abī Laylá was asked about a man who stole from the Kaʿbah, he said: “His hand is not to be amputated.”⁶ In fact, maximizing mercy is the central principle in the application of ḥudūd (fixed penalties in Islamic law). The Prophet (PBUH) said: “Ward off the ḥudūd from the Muslims as much as you can. So, if there is a way of escape for him (i.e., any legitimate excuse, doubt, or circumstance that removes full liability), let him go, for, indeed, it is better for a ruler to err in forgiving [the criminal] than to err in punishing [the innocent].”⁷ Muslim jurists derived from this ḥadīth the crucial legal maxim: “Ward off the ḥudūd by shubuhāt (doubts or ambiguities).”⁸ In other words, mercy—pardoning when there is uncertainty about the offender’s guilt—is preferred over risking an unjust punishment. Hence, in the case of theft, because the amputation of the hand is an irreversible punishment, the ḥadd penalty is not enforced in every instance of stealing. Rather, a set of specific conditions must be met before the hand of a thief may be amputated. The ḥadīths (Prophetic traditions) clarify that this punishment applies only when the stolen property exceeds a certain value. ʿĀʾishah [may Allāh be pleased with her] reported: “The hand of a thief was never amputated during the time of the Messenger of Allah (peace and blessings be upon him) for stealing anything worth less than the price of a mijann (anything with which a person may shield or protect himself—such as a helmet, coat of mail, or defensive shield—that is, all instruments of combat and warfare) ...”⁹ We also learn from the practice of the Prophet (PBUH) that an accused thief should be prompted two or three times to deny having committed the act of theft. In terms of judicial procedure, this means that even if a thief is caught red-handed, with two witnesses testifying that they saw him steal, it would suffice for the accused to claim that the item belonged to him. Such a claim would introduce enough ambiguity to preclude the implementation of hand amputation. Abū Umayyah al-Makhzūmī narrated:¹⁰

It was the practice of the Prophet (PBUH) and the Righteous Predecessors to instruct a person accused of theft not to admit the offense directly, in accordance with the principle of warding off ḥudūd through shubuhāt (ambiguities), both to protect the offender from the fixed penalty and to allow him the opportunity to repent privately. Ibn abī Shaybah titled one of the chapters of his al-Muṣannaf: When a man was brought [for theft], and he would be told: “Did you steal? Say, ‘No.’ He recorded the following reports: ¹¹

•ʿAlī ibn al-Aqmar narrated from Yazīd ibn abī Kabshah that abū ad-Dardāʾ was brought a woman who had stolen. He said to her, “Salāmah! Did you steal? Say: No.”

•Jābir narrated from a mawlá (former slave) of abū Masʿūd, from abū Masʿūd, who said: A man who had stolen was brought to him. He asked, “Did you steal it? Say, ‘I found it.’” The man replied, “I found it.” Thus, he released him.

•Sulaymān an-Nājī narrated from abū al-Mutawakkil that abū Hurayrah, who was then serving as governor, was brought a thief. He said to him, “Did you steal? Did you steal? Say, ‘No,’ say, ‘No,’” repeating it two or three times.

•Ibn ʿUyaynah narrated from Yazīd ibn Khuṣayfah, from Muḥammad ibn ʿAbd ar-Raḥmān ibn Thawbān, that a man stole a cloak. He was brought before the Prophet (PBUH), and they said, “O Messenger of Allah, this man has stolen a cloak.” The Prophet (PBUH) said, “I do not think he stole it.”

•Ḥasan ibn Ṣāliḥ narrated from Ġālib abū al-Huḏayl, who said: I heard Subayʿ abū Sālim say: I was present when al-Ḥasan ibn ʿAlī was brought a man who had confessed to theft. Al-Ḥasan said to him, “Perhaps you merely snatched it (i.e., took it quickly or stealthily, without breaking in or taking from a secure place)?”—prompting him to reply, “No.”

•Ibn Jurayj narrated from ʿIkrimah ibn Khālid, who said: ʿUmar was brought a man who had confessed to theft. ʿUmar said, “I see a hand that does not look like the hand of a thief.” The man swore, “By Allah, I am not a thief.” Therefore, ʿUmar released him and did not amputate his hand.

•Muḥammad ibn Bakr narrated from ibn Jurayj, from ʿAṭāʾ, who said: Those who came before would be presented with someone accused of theft, and they would say to him, ‘Have you stolen? Say, ‘No!’ Have you stolen? Say, ‘No!’ And I do not know except that he named Abū Bakr and ʿUmar.

Likewise, al-Bayhaqī reported that a man came to ʿAlī [may Allāh be pleased with him] and said, “I have stolen.” ʿAlī dismissed him. The man returned and said, “I have stolen.” ʿAlī said, “You have testified against yourself twice,” and his hand was then amputated.¹² Hence, if someone commits theft and confesses to the judge, his hand will not be amputated. Instead, the judge will instruct the offender to deny having committed theft, thus giving him a way to deny the ḥadd-level offense. This aligns with the broader teaching that Muslims should cover their own faults, as well as those of others, by not publicizing sins or crimes. In this case, the accused is not considered to be lying, even if he did commit the offense, because he is acting under the judge’s guidance. The essential point is that once the offender comes forward and confesses, the goal is achieved: Islamic law aims to purify the community by promoting accountability, encouraging repentance, and maintaining social harmony, not merely to amputate hands.

As noted earlier, because hand amputation is an irrevocable punishment, it should not be applied in every case of theft. A specific set of conditions must be met before the ḥadd penalty can be enforced. According to scholars, these conditions—considering both the thief and the stolen property—can number a dozen or more. Among them are:

1.The stolen property reaches the niṣāb (minimum value), which is a quarter of a dinar, three dirhams, or their equivalent.

2.The stolen property must be taken from a ḥirz (secure or protected location).

3.The stolen item must have been taken stealthily, not through looting or by force.

4.The stolen property must have value in the eyes of Islamic law, for that which has no recognized worth carries no sanctity—such as wine, idols, or prohibited musical instruments. Theft of such items does not warrant the application of the ḥadd punishment.

5.The stolen property must not belong to the thief’s child or descendants.

6.The stolen property must not belong to the thief’s parent or ancestors.

7.The stolen property must not belong to the thief’s slave or to a slave who has entered into a contract of manumission with him.

8.The thief must be an adult.

9.The thief must be sane.

10.The thief must act intentionally.

11.The thief must act voluntarily.

12.The thief must not be compelled by hunger; this must be proven by evidence.

13.The thief must not be entrusted with the stolen property.

14.The thief must not be a partner with the owner of the stolen property.

15.The theft must be proven either by the testimony of two upright witnesses or by a detailed confession from the thief after accusation, while being legally accountable.

16.The case must be reported to the ruler or his deputy.

17.The owner must bring the claim against the thief.

Some scholars added that the thief must be free (not a slave), and some added that the stolen item must not be a copy of the Qurʾān (i.e., codex).¹³

In a nutshell, the list of requirements that Muslim jurists unanimously formulated to eliminate any ambiguity and prevent the unwarranted application of the ḥadd for theft is extensive. As Rudolph Peters, a renowned expert on Islamic law—particularly Islamic criminal law—observed, it is nearly impossible for a thief to be punished under this divine law unless he voluntarily confesses.¹⁴ Saudi Arabia provides a notable example in this regard. Overall, the ḥudūd punishments appear to be enforced in Saudi Arabia at a higher rate than they were historically in most Muslim societies.¹⁵ Nevertheless, instances of ḥudūd enforcement remain exceedingly rare. With respect to the ḥadd punishment for theft, between 1981 and 1992, forty-five amputations were carried out for theft in Saudi Arabia. In a one-year sample (1982–83), out of 4,925 theft convictions, only two offenders had their hands amputated, while the remaining received taʿzīr(discretionary punishments, i.e., penalties decided by the authorities rather than fixed by Islamic law). Finally, it is worth noting that an examination of the historical context in which the ḥadd for theft was revealed shows that it was the only effective way to safeguard people’s property while upholding justice and security in society. The punishment was instituted more than 1,400 years ago amid the circumstances of Makkah and al-Madīnah—both major trade centers along the route between the Levant and Yemen. These cities saw a constant influx of travelers and merchants, making it easy for outsiders to steal property and quickly vanish along the trade routes. Moreover, neither city possessed the means to imprison offenders or enforce other effective deterrents against theft. People’s livelihoods then depended heavily on camels and horses, and the theft of such an animal could be disastrous for its owner. In this context, hand amputation functioned as the most practical means to deter potential thieves and incapacitate would-be repeat offenders. As a matter of fact, it was a more lenient punishment compared to other legal systems that would execute a thief outright. Historical legal systems did, in fact, impose the death penalty for theft, particularly in earlier centuries. For example, during England’s “Bloody Code” era (18th and early 19th centuries), over 200 offenses—including various forms of theft—were punishable by death.¹⁶ Similarly, in 13th-century Sweden, thefts involving goods worth half a mark or more were punishable by hanging.¹⁷