✋ Child Stealing in Islamic Jurisprudence: Theft, Rights, and Interpretations

Definitions and Interpretations

Definition: The act of taking a free-born child without consent. The debate revolves around whether this act constitutes theft under Islamic law and what the suitable punishment should be.

Etymology of Terms

• Free-born child: A child born to free parents, not a slave.
• Dirham (درهم): A unit of silver coinage traditionally used in Islamic countries.

Background and Legal Framework

The Essentials: In Islamic jurisprudence, the punishment for theft is typically amputation of the hand. However, there are nuanced exceptions and varied interpretations depending on the nature of the theft.

1. Al-Ḥanīfah’s Position:

   • Argument: Imam Abū Ḥanīfah argues that the hand of a thief should not be cut off for stealing a free-born child, even if the child has ornaments. This is because a free person is not considered property, and the ornaments are considered secondary to the person.
   • Rationale: Abū Ḥanīfah contends that the thief might claim they intended to soothe the crying child and return it to the nurse, thus questioning the thief’s criminal intent.

2. Abū Yūsuf’s Position:

   • Argument: Abū Yūsuf disagrees, asserting that if the value of the ornaments amounts to ten dirhams, then amputation is warranted.
   • Application: For stealing an enslaved child, Abū Yūsuf contends there is no amputation because a slave, though property, may involve contexts where the intent could vary.

Cultural Differences and Similarities

Islamic Law (Shari’ah): Although Islamic criminal laws are derived from the same primary sources - the Qur’an and Sunnah - interpretations can significantly vary across different schools of thought (madhabs).

• Similarities: General agreement across schools on the sanctity of life and personhood.
• Differences: Variations exist in terms of the threshold for proving theft, types of theft that require amputation, and interpretations of mitigating circumstances like intent and desperation.

Synonyms and Related Terms

• Aqidah (عقيدة): Belief system within Islam.
• Fiqh (فقه): Islamic jurisprudence.
• ʿUrf (عرف): Customary law considerations within the legal framework.
• Hadd punishment: Prescribed penalties under Islamic law for certain crimes.

Interesting Facts

1. The debate over the punishment for theft in Islam shows the rich diversity in Islamic legal thought and its sensitivity to context and intent.
2. The concept of theft in Islamic law is deeply intertwined with societal norms and ethical considerations, making it a complex field of study.

Quotations

“The purpose of Shariah is to protect five universal principles: religion, life, intellect, lineage, and property.” - Imam Al-Ghazali

“Each scholar strives to understand and implement the laws of Allah to ensure justice and mercy.” - Aisha Abdurrahman Bewley

Suggested Literature and Further Studies

1. The Hidāyah by Al-Marghinani (A comprehensive guide to Islamic law)
2. The Four Imams: Their Lives, Works and Their Schools of Thought by Muhammad Abu Zahra
3. Shari’ah: Theory, Practice, Transformations by Wael B. Hallaq

Quizzes

“Exploration and understanding of our own values through study can elevate our spirit and enhance our compassion for others.” - Fatima Al-Tahir

Published on: 2023-10-03

Enjoy your journey through the layers of Islamic jurisprudence and may your study illuminate your understanding of justice.