Child Stealing in Islamic Jurisprudence
Etymology
- Arabic Translation: سرقة الأطفال (Sariqat al-Atfal)
- Turkish Translation: Çocuk hırsızlığı
Legal Context in Islamic Jurisprudence
Child stealing in Islam is treated with great sensitivity, particularly when differentiating between a free-born child and a slave child. Islamic laws pertaining to theft generally invoke the penalty of amputation of the thief’s hand, but specific exceptions and interpretations exist that detail when this severe punishment is or is not applicable.
Hanafi Rulings on Child Stealing
Classical Hanafi juristic texts, such as the “Hidāyah,” stipulate that the hand of a thief is not to be cut off for stealing a free-born child. The reasoning behind this includes:
- Free Person Not Property: A free-born child is not considered property and thus does not meet the criteria for theft that necessitates amputation.
- Ornaments Considered Appendages: Even if the child has valuable ornaments, they are seen as appendages and not directly the target of theft.
- Plausible Innocent Motive: The thief may claim to have taken the child to soothe it when crying and intended to return it to the nurse.
Diverging Opinions: Abu Yusuf vs. Hanafi View
Abu Yusuf, a prominent student of Abu Hanifah, holds a slightly different view regarding child stealing:
- Ten Dirhams Rule: Abu Yusuf posits that if the value of the stolen ornaments attached to the child is equal to ten dirhams, amputation should be carried out irrespective.
- Slave Children: For the theft of a slave infant, he also rules against amputation, contrary to the general Hanafi position that considers a slave as property.
Legal Text and Reference
- Primary Source: “Hidāyah, Vol. II, page 91” which forms a significant part of the Hanafi legal tradition.
Suggested Books for Further Studies
- “The Hedaya: Commentary on the Islamic Laws” translated by Charles Hamilton.
- “Introduction to Islamic Law” by Joseph Schacht.
- “Islamic Jurisprudence” by Imran Ahsan Khan Nyazee.
- “Fundamentals of Criminal Law in Islamic Jurisprudence” by Mohammad Hashim Kamali.
Key Takeaways
- Islamic jurisprudence differentiates the stealing of free-born children from slaves.
- Different interpretations of Sharia result in varying applications of penalties.
- Jurists like Abu Hanifah and Abu Yusuf provide nuanced and sometimes opposing viewpoints on similar issues.
Conclusion
Understanding the legal nuances of child stealing within Islamic jurisprudence requires an appreciation of various juristic opinions and interpretations. The principles underlying these rulings often balance between strict adherence to Sharia and the consideration of possible innocent motives, illustrating the comprehensive and often complex nature of Islamic legal theory.
