Assalaamu alaykum, Shaykh. Recently, I read on your website about the prescribed punishment for theft. I came to know that the scholars differ regarding the minimum value of theft which entails cutting one's hand. According to the Hanafis, the minimum value is 10 dirhams, because at that time, the value of a shield was 1 dinar, or 10 dirhams. On the other hand, others say that the minimum value is a quarter of a dinar, or 3 dirhams. I know that the dirham varies, but not the dinar. I know that Sharia law does not contradict itself in the same case. So I want to know which opinion is correct. Or are both opinions applicable? if both opinions are applicable, then how it can be applied?
All perfect praise be to Allah, the Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad is His slave and Messenger.
The difference between the scholars about a ruling in Islam does not mean that the rulings of the Shariah are contradictory; rather, the ruling of Allah about the same matter is one according to most scholars of the Sunnah, who hold the view that not everyone who makes Ijtihaad (independent reasoning) is correct in his decision, but the scholars only strive to know the purpose of the Shariah.
The ruling on theft, according to the majority of the scholars (other than the Hanafis), was cited and chosen as preponderant by Ibn Taymiyyah in his Fataawa and by Ibn Al-Qayyim in I‘laam Al-Muwaqqi‘een.
Ibn ‘Abd Al-Barr classified the chain of narrators of the hadeeth which the Hanafi School provides as evidence as weak because it was narrated by Al-Hajjaaj ibn Arta'ah, who is weak; and the narrator who narrated it from Al-Hajjaaj is also weak.
Shaykh Ibn Taymiyyah said in his Fataawa:
“The hand of a thief is cut off if he steals the minimum amount that makes it permissible to cut his hand, which is a quarter of a dinar, or three dirhams, according to the majority of the scholars from the Hijaaz and from the scholars of Hadeeth and others, such as Maalik, Ash-Shaafi'i, and Ahmad. Some others say, ‘The hand of a thief is cut off if he steals one dinar or ten dirhams.’ So whoever steals the minimum amount, his hand shall be cut off by the agreement of the scholars. Ibn ‘Umar, may Allah be pleased with him, narrated that the Prophet cut off the hand of a thief for stealing a shield that was worth three dirhams. [Al-Bukhaari and Muslim]
Also, ‘Aa’ishah, may Allah be pleased with her, narrated that the Prophet said, ‘The hand of a thief is to be cut off for a quarter of a dinar or more.’ [Al-Bukhaari and Muslim]
The wording of Muslim reads, ‘A thief's hand should not be cut off except for a quarter of a dinar or more.’ [Muslim]
Another wording by Al-Bukhaari reads, ‘Cut off a thief's hand for a quarter of a dinar, and do not cut it off for what is less than that.’
At that time, a quarter of a dinar was worth three dirhams, and the dinar was worth twelve dirhams.”
The Hanbali scholar Ibn Qudaamah said:
“There are different narrations from Ahmad (ibn Hanbal) concerning the amount for which a thief’s hand should be cut off. Abu Is-haaq Al-Jawzajaani narrated from him that it is a quarter of a dinar of gold or three dirhams of silver, or what is worth three dirhams of any other items. This is the view of Maalik and Is-haaq ... ‘Aa’ishah narrated, ‘There is no cutting of a thief’s hand except in a quarter of a dinar upward.’ This was also narrated from ‘Umar, ‘Uthmaan and ‘Ali, may Allah be pleased with them. It is also the view of the Seven Scholars of Fiqh, Umar ibn ‘Abdul-‘Azeez, Al-Awzaa'i, Ash-Shaafi‘i, and Ibn Al-Munthir, based on the hadeeth by ‘Aa’ishah, may Allah be pleased with her, who related that the Prophet said, ‘A thief's hand should not be cut off except for a quarter of a dinar or more’...”
Regarding the correct opinion in matters about which scholars had an acceptable difference of opinion, or issues of Ijtihaad: it is a relative matter of Ijtihaad. In other words, describing a view as correct is done according to those who see it as such. As for those who consider another view to be more preponderant, then this is the view which they consider to be correct, and so on.
Yes, it is true that there are certain issues of difference of opinion on which there is clear-cut evidence, so it is decisively affirmed that a given view is the correct one, or that another view is wrong, while pardoning those who held this wrong view through Ijtihaad because they were not aware of the evidence or similar excuses. These issues are described as issues about which the difference of opinion is unacceptable or is not taken into consideration. Nevertheless, decisively affirming that some views are correct while others are not and describing an issue as one about which the difference of opinion is unacceptable is itself partly relative.
The views of the three Schools of Fiqh – the Maaliki, Shaafi‘i and Hanbali – concerning this issue (the minimum value of theft ) are acceptable and considerable without any doubt, and the one who considers any of them to be preponderant is not to be blamed.
As for your question: “Are both opinions applicable?” then the difference of opinion here is one of opposites, so it is not possible to act according to all the views in one case. Rather, the judge rules based on the view which he considers to be the correct one through his Ijtihaad. As regards the views which he considers to be outweighed (less preponderant), then it is not acceptable for him to act or judge according to them except in certain circumstances wherein the scholars deem it acceptable to act and rule according to the outweighed opinion for a benefit, with certain conditions and restrictions, which cannot not be detailed here in this fatwa.
Allah knows best.
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