of Nokounam, may his sanctity be preserved (Session 1076)
Verses 38 to 40 of Surah Al-Ma'idah, like a brilliant gem in the Divine Word, address fundamental matters of justice, punishment, repentance, and Divine mercy. These verses, examined within the framework of a scholarly and critical dialogue, serve as an invitation to reflect upon Divine ordinances and their connection with the infinite wisdom and mercy of the Lord. In this discourse, with a profound insight into these verses, an endeavour has been made to present their meanings and concepts in a lucid and dignified language, framed within a scientific and coherent structure. This examination not only elucidates juridical and theological rulings but also, by posing profound questions, invites the reader to contemplate the essence of justice and mercy within the Divine system.
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِنَ اللَّهِ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ
And the male thief and the female thiefcut off their hands as a recompense for what they committed as a deterrent from Allah; and Allah is Mighty and Wise.
Verse 38 of Surah Al-Ma'idah establishes a preliminary ruling concerning the punishment of the male and female thief, which in the jurisprudential system is categorised among the Hudud (fixed punishments). This ruling explicitly and unequivocally mandates the cutting off of the hand as the penalty for theft. Such a ruling, like a double-edged sword, serves both as a deterrent and raises questions regarding the proportionality between the crime and its punishment. Within scholarly discourse, this verse forms a foundation for reflecting on Divine justice and its implementation within society.
One notable aspect of this verse is the presence of the conjunction wa in the phrase وَالسَّارِقُ وَالسَّارِقَةُ. At first glance, this conjunction appears to merely connect the male thief and the female thief. However, it has been critically analysed within the dialogue and characterised as a redundant and linguistically superfluous element. Nonetheless, from a rhetorical perspective, the conjunction here functions as a connector and emphasiser of the inclusivity of the ruling for both genders. This wa acts as a bridge establishing Divine justice as equally applicable to men and women, repudiating any form of gender-based discrimination in the implementation of the ruling.
In the critique of this conjunction, questions arise regarding its literary status: Is this conjunction merely for emphasis or should it be regarded as superfluous? The answer to this question lies within the rhetorical structure of the Quran, wherein every word is chosen with profound wisdom. This conjunction not only indicates coordination between the male and female thief but also emphasises the comprehensiveness of the ruling and its applicability to both genders.
In explaining the verse, the male and female thief have been respectively interpreted as the male thief and the female thief. This definition manifests the verses explicit inclusion of the ruling for both genders. Divine justice, like an all-encompassing sun, distinguishes no difference between man and woman in the execution of punishment. This equality is indicative of Divine wisdom in legislating rulings that judge the crime regardless of gender.
One of the fundamental questions raised in the dialogue concerns the quantity of theft subject to this ruling. Is the theft of a few dirhams or insignificant items such as a water jug and basin equivalent to large-scale financial theft in warranting the cutting off of the hand? This question, like a prompt to the jurisprudential conscience, highlights the necessity of determining the minimum threshold (nisb) of theft in Islamic jurisprudence. Without specifying a threshold, the enforcement of this ruling might result in inequality and injustice, as the dialogue also notes the difference between minor and major thefts.
Within the scholarly dialogue, the punishment of cutting off the hand for minor thefts, such as stealing a sheep, in contrast to large financial thefts, has been critically examined. This critique, like a mirror, reflects the inequality in the administration of justice between the wealthy and the poor. While minor thefts are met with severe punishment, major thefts, sometimes amounting to billions, may go unpunished. This contradiction raises questions regarding the proportionality of crime and punishment and the necessity of revisiting the enforcement of Hudud rulings.
Another noteworthy point is the addressee of the command فَاقْطَعُوا (cut off). This phrase does not explicitly specify the executor of the punishment. In the dialogue, this ambiguity is critically addressed, with the suggestion that anyone in a position of power may enforce this ruling. This perspective, like a breeze dispelling clouds of uncertainty, underscores the necessity for an organised judicial system to implement Shariah rulings. Without such a system, the execution of the ruling could result in chaos or misuse.
The dialogue candidly challenges the rationale behind the punishment of cutting off the hand. This penalty not only deprives the thief of the ability to earn a livelihood but also renders them perpetually dependent on assistance. This critique acts as a warning bell highlighting the social and economic consequences of such punishment. Is a ruling that leads to the thiefs incapacity and dependency compatible with the reformative objectives of jurisprudence? This question calls for deep reflection on the wisdom and purposes of Divine rulings.
The phrase جَزَاءً بِمَا كَسَبَا refers to the proportionality of the punishment to the crime, whereas نَكَالًا مِنَ اللَّهِ emphasises the deterrent aspect of the punishment. Within the dialogue, it has been proposed that a conjunction between these two expressions might have clarified the meaning further. However, the current sequence of the verse, which places the recompense and deterrence in close conjunction, underscores the Divine wisdom in legislating punishments. Recompense acts as a shadow following the deed, while deterrence functions as a shield protecting society from crime.
The verse concludes with the phrase وَاللَّهُ عَزِيزٌ حَكِيمٌ, referring to the might and wisdom of Allah. Might indicates Gods authority in legislating rulings, and wisdom represents His meticulousness and awareness in law-making. Nonetheless, the dialogue questions the connection between these attributes and the punishment of cutting off the hand. This question serves as a key unlocking doors to contemplation on Divine wisdom. Is Divine wisdom embodied in the harsh punishment itself or in the mercy that follows?
فَمَنْ تَابَ مِنْ بَعْدِ ظُلْمِهِ وَأَصْلَحَ فَإِنَّ اللَّهَ يَتُوبُ عَلَيْهِ ۗ إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ
But whoever repents after his wrongdoing and reforms, indeed, Allah will accept his repentance; indeed, Allah is Forgiving and Merciful.
Verse 39, like a revitalising breeze, speaks of the boundless mercy of Allah. This verse, by referring to repentance and reform after wrongdoing, facilitates the path back to God. The term ظُلْم (wrongdoing) here encompasses not only theft but any oppressive sin. This inclusivity acts as an open door inviting every sinner towards Divine forgiveness.
The expression فَإِنَّ اللَّهَ يَتُوبُ عَلَيْهِ indicates the acceptance of repentance by Allah, while إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ underscores His forgiveness and mercy. These attributes, like a pristine spring, revive hope within the heart of the sinner. Within the dialogue, this Divine mercy is contrasted with the might and wisdom mentioned in the preceding verse, illustrating a balance between justice and mercy.
The dialogue raises critique regarding the uninterrupted continuation of Hudud punishments, such as cutting off the hand, over 1,500 years without abrogation. This critique, akin to a prompt to the scientific conscience, stresses the necessity for ijtihad (independent reasoning) and the reassessment of rulings in the light of contemporary conditions. Although the Quran showed flexibility during the time of the Prophet (peace be upon him) by abrogating some rulings, the uninterrupted enforcement of punishments without review might appear inconsistent with Divine justice and wisdom.
أَلَمْ تَعْلَمْ أَنَّ اللَّهَ لَهُ مُلْكُ السَّمَاوَاتِ وَالْأَرْضِ يُعَذِّبُ مَنْ يَشَاءُ وَيَغْفِرُ لِمَنْ يَشَاءُ ۗ وَاللَّهُ عَلَىٰ كُلِّ شَيْءٍ قَدِيرٌ
Have you not known that Allah has sovereignty over the heavens and the earth and punishes whom He wills and forgives whom He wills? And Allah is over all things competent.
Verse 40, like a crown atop these three verses, displays the absolute ownership and power of Allah. The phrase أَنَّ اللَّهَ لَهُ مُلْكُ السَّمَاوَاتِ وَالْأَرْضِ stresses Gods Lordship, and يُعَذِّبُ مَنْ يَشَاءُ وَيَغْفِرُ لِمَنْ يَشَاءُ demonstrates His discretion in punishment and forgiveness. This verse acts as a mirror placing Divine grandeur before the eyes of the servants.
In the dialogue, this verse is described as a chant lacking new content. However, this perspective neglects the monotheistic role of the verse in completing the preceding rulings. Verse 40 serves as the foundation upon which justice and mercy rulings rest, and by emphasising Divine authority, it guarantees the legitimacy of these rulings.
Verses 38 to 40 of Surah Al-Ma'idah, like three precious gems strung together, intertwine Divine justice, mercy, and monotheism. Verse 38, by prescribing the punishment of cutting off the hand, underscores justice and deterrence. Verse 39, by opening the doors of repentance and reform, manifests Divine mercy. Verse 40, by affirming Gods ownership and power, establishes the monotheistic foundation of these rulings. The scholarly dialogue, by raising critical questions concerning proportionality of punishment, ambiguities in execution, and continuity of rulings, invites the reader to reflect deeply on Divine wisdom and justice. These verses, like a guiding light on the path of guidance, delineate the way of reform and return to God.
Supervised by Sadegh Khademi
