Imam Taqi al-Dīn al-Subkī’s fatwa collection has a section where the Shaykh (may Allah grant him His mercy) enumerates approximately 90 requirements that scholars agree must be fulfilled for a punishment for theft to be carried out. Several online articles and infographics present this list as though scholars agree that each and every condition must be met, and that failure to meet a single one would render it unlawful to carry out the punishment. This is not an accurate presentation of what Imam al-Subkī actually meant.
Imam al-Subkī’s section begins
(كِتَابُ قَطْعِ السَّرِقَةِ) قَالَ الشَّيْخُ الْإِمَامُ – رَحِمَهُ اللَّهُ – اتَّفَقُوا عَلَى وُجُوبِ حَدِّ السَّرِقَةِ عَلَى مَنْ سَرَقَ مِنْ حِرْزٍ …
meaning: “Book of amputating for theft. The Shaykh and Imam (may Allah grant him His mercy) said, ‘They agreed that the amputation for theft is obligatory upon someone who stole from a secure location…”
Readers familiar with fatwa literature will notice immediately that Imam al-Subkī’s words are not preceded by a question. So the question he is answering will have to be figured out from the contents of the material. (Notice, also, that this blog article is an answer to a question, but I have not explicitly stated what that question is. I may have implied it in the title, but titles are short and leave much unsaid – and titles are often used to editorialize or reframe content. So readers should be very cautious when presented with a questionless fatwa.)
And readers familiar with legal literature will also notice that Imam al-Subkī said, “they agreed.” What he intends with this phrase will have to be figured out from the contents of the material to determine whether this agreement is within a specific school, across certain schools (e.g., the official position of the remaining schools), or amongst scholars whose opinions are considered for declaring scholarly consensus.
After enumerating 83 conditions, Imam al-Subkī writes
فتاوى السبكي (2/ 334)
قَالَ ذَلِكَ كُلَّهُ عَلِيُّ بْنُ أَحْمَدَ بْنِ سَعِيدٍ
meaning: “All of this was said by ʿAlī bin Aḥmad bin Saʿīd…”
So Imam al-Subkī was quoting someone else – namely the famous Andalusian Ẓāhirī fiqh scholar Ibn Ḥazm (may Allah grant him His mercy). Thanks to electronic search, locating the passage within the latter’s works is trivial. The passage occurs in Marātib al-ijmāʿ. Here is the beginning of the passage
مراتب الإجماع (ص: 135)
وَاتَّفَقُوا أَنه من سرق من حرز …
meaning: “They agreed that whoever stole from a secure location…”
…then, after enumerating the conditions, he gives its consequence
مراتب الإجماع (ص: 135)
فقد وَجب عَلَيْهِ حد السّرقَة وَاخْتلفُوا فِيمَن خَالف شَيْئا من الصِّفَات الَّتِي قدمنَا فِي سَرقَة …
meaning: “…the prescribed punishment for theft is obligatory upon him. And they disagreed concerning someone who fails in fulfilling just one of the aforementioned characteristics in a theft…”
Thus, the passage is from Marātīb al-ijmāʿ – a book about consensus. What Ibn Ḥazm presents is the list of conditions that would have to be met in a single theft in order to achieve consensus among scholars that the punishment would be obligatory, and that no such consensus was available regarding a theft that does not meet the complete set of conditions.
Ibn Ḥazm’s list comprises every condition any scholar whose opinion is significant for determining consensus had ever mentioned – even if no other scholar accepted it. And the list includes conditions that Ibn Ḥazm himself did not consider worthy of consideration. For example, not being a muṣḥaf (a written Quran) is one of the conditions he mentioned in the list. Yet in his own magnum opus, Al-Maḥallā bi-l-āthār, he dismisses it as a condition
المحلى بالآثار (12/ 325)
مَسْأَلَةٌ: مَنْ سَرَقَ الْمُصْحَفَ؟ قَالَ أَبُو مُحَمَّدٍ – رَحِمَهُ اللَّهُ -: قَالَ أَبُو حَنِيفَةَ، وَأَصْحَابُهُ، لَا قَطْعَ عَلَى مَنْ سَرَقَ مُصْحَفًا – سَوَاءٌ كَانَتْ عَلَيْهِ حِلْيَةُ فِضَّةٍ تَزِنُ مِائَتَيْ دِرْهَمٍ، أَوْ أَكْثَرَ، أَوْ أَقَلَّ أَوْ لَمْ تَكُنْ
وَقَالَ مَالِكٌ، وَالشَّافِعِيُّ، وَأَصْحَابُنَا: عَلَيْهِ الْقَطْعُ
meaning: “Concerning the issue of someone who stole a muṣḥaf, Abū Muḥammad [Ibn Ḥazm] (may Allah grant him His mercy) said that Abū Ḥanīfah and his colleagues said that there is no amputation for someone who stole a muṣḥaf […] Mālik, al-Shāfiʿī, and our [Ẓāhirī] colleagues said that amputation is obligatory.”
This passage shows that Ibn Ḥazm included in the big list of conditions even those that he and other major scholars had rejected.
Although judges are commanded to ward off punishments through ambiguities, a judge would not automatically consider every condition that Ibn Ḥazm and Imam al-Subkī mentioned as sufficient grounds for warding off the punishment, since the judge himself must consider the ambiguity strong. This topic is covered at length in books of fiqh. The following passage from Imam al-Suyūṭī’s Al-Ashbāh wa al-naẓāʾir is enough to show that it’s not a matter of anything goes
الأشباه والنظائر للسيوطي (ص: 124)
شَرْطُ الشُّبْهَةِ: أَنْ تَكُونَ قَوِيَّةً، وَإِلَّا فَلَا أَثَرَ لَهَا وَلِهَذَا يُحَدُّ بِوَطْءِ أَمَةٍ أَبَاحَهَا السَّيِّدُ، وَلَا يُرَاعَى خِلَافُ عَطَاءٍ فِي إبَاحَةِ الْجَوَارِي لِلْوَطْءِ …
meaning: “A condition for the ambiguity is that it be strong, otherwise it is of no significance. This is why one is punished for fornicating with a slave whose master had made her licit, and ʿAṭā’s disagreement related to declaring slaves permissible for sex is not observed…”
Based on the above:
- Imam al-Subkī did mention a long list of conditions that must be met in order for amputation for theft to be obligatory – in order to achieve consensus between every scholar whose legal opinion is worthy of consideration when determining agreement and consensus.
- Imam al-Subkī did not say it would be unlawful to carry out the punishment if any one of those conditions was absent.
- Judges are not required to accept just any ambiguity.
And Allah knows best.
(n.b. I did not mention the author by name here in the hope that our focus will be on the accuracy of claims and not the reputations of people. I did communicate my concerns to the author and wait for an appropriate duration without receiving a response before writing this article.)
For additional benefit, here is the section on the punishment for theft from The Evident Memorandum.EM-Theft