There is no Cutting in the Compelling Famine

প্রশ্ন · Question

Assalaamu Alaikum Wa Rahmatullah Wa Barakaatuhu our respected
Sheikh, may Allah increase your knowledge and virtue,
I would like to ask and am confident in your virtue to be able to
respond,
We have learnt that ‘Umar Ibn Al -Khattaab (ra) did not cut the hand
of the thief in the year of the famine. So was the suspension of this
Hukm in this circumstance only due to an ‘Illah (Sharee’ah reasoning)
that had ceased to be and the Hukm of cutting ceased to exist along
with it?? And if that is the case then what is the ‘Illah for the Hukm of
cutting? And do the ‘Uqubaat (punishments) have ‘Ilal (legal
reasonings), in origin, which they revolve around?
Barakallahu Feek

উত্তর · Answer

Wa Alaikum Assalam wa Rahmatullah wa Barakataahu,
1. In regards to what ‘Umar (ra) did, he applied the Hukm Ash -Shar’i
as it has been found in Islam. This means that the application of the
Hukm was not suspended. Rather he applied it as it must be done.
That is because there are circumstances in which it is not permitted
to cut the hand which include the circumstance of the famine, and so
it is not permissible to cut the hand in it. I will now mention some of
the evidences guiding to the impermissibility of cutting the hand in
the year of the famine:
- As-Sarkhasi mentioned in ‘Al -Mabsoot’: He said that it was related
from Mak’hool (ra) that the Prophet ﷺ said:
«قَالَ لََ قَطْعَ ف ِي مَجَاعَةِ مُضْطَر »
“There is no cutting in the compelling famine”.

- And it was also mentioned in As -Sarkhasi’s ‘Al -Mabsoot’ from Al -
Hasan from a man who said
:يْت
َ
رَأ
رَجُلَيْْ ِ مَكْتُوفَيْْ ِ وَلَحْمًا فَذَهَبْت مَعَهُمْ إلََ عُمَرَ رَض ِيَ اللَّهُ عَنْهُ فَقَالَ صَاحِبُ اللهحْمِ كَانَتْ
لَنَا نَاقَةٌ عُشََِّاءُ نَنْتَظِرُهَا، كَمَا يُنْتَظَرُ الرَّبِيعُ فَوَجَدْت هَذَيْنِ قَدْ اجْي َ َرَاهَا فَقَالَ عُمَرُ رَض ِيَ اللَّهُ
عَنْهُ: "هَلْ يُرْضِيك مِنْ نَاقَتِك نَاقَتَانِ عُشََِّاوَانِ مُرْبِعَتَانِ؟ فَإِنَّا لََ نَقْطَعُ ف ِي الْعِذْقِ، وَلََ ف ِي
عَامِ السَّنَةِ ."
I saw two men who were ties up and meat. So I went with them to
‘Umar (ra). Then the one possessing the meat said: “We had an
‘Usharaa’ (pregnant she-camel) that we were waiting for (its delivery)
just as the fertile spring is waited for. But then I found that these two
men had slaughtered it”. So ‘Umar said: “Would you be content to
accept two similar ‘Usharaa’ (pregnant) camels in place of it? That is
because we do not cut the hands at the time of Al -Ithq and not in the
year of the famine”.
The ’Usharaa’ is the pregnant she-camel that has reached ten months
of its pregnancy and is approaching her birth and as such it is the
dearest thing to its people whilst they await its fertility and
abundance in respect to its milk just like they await the coming of
spring. And in respect to his statement: ‘For verily we do not cut in
the ‘Al -Idhq’...’, which some have related it as ‘Al -Irq’ although ‘Al -
Idhq’ is the most common, refers to meat.
Its meaning is therefore that there is no cutting (amputation of the
hand) in the year of the famine due to the Daroorah (necessity) and
dire need i.e. the hunger and the famine (drought).
- Ibn Shaibah extracted in his Musannaf from Ma’mar who said:
Yahya Bin Abi Katheer said: ‘Umar said: “The (hand) is not cut in
regards to the ‘Idhq (meat) and not in the year of the famine”.
2. Consequently, the non -implementation of the Hudood in the year
of the drought (i.e. year of the famine) reverts to the Hukm Ash -

Shar’i related to the non -application of the Hadd (prescribed
punishment) for theft in the year of the famine... That is because that
represents the Hukm Ash-Shar’i in this situation or circumstance.
3. As for your question about the ‘Ilal (legal reasoning) in relation to
the ‘Uqubaat (punishments), then yes, it is possible for them to
include ‘Ilal and for Qiyaas to occur in respect to them... However,
the ‘Uqubaat include within them the meaning of the ‘Uqubah
(punishment) and the meaning of the Haddiyah. As for the meaning
of the Haddiyah which refers to the quantifying of the Hadd (set
prescribed punishment) and its kind, then this is not reasoned (i.e. it
does not have an ‘Illah). Consequently, the Hadd is not increased
upon or decreased whether this was in respect to the quantifying of
the Hadd (Miqdaar) or in the number (‘Adad) of the Hudood, as these
are restricted within the Shar’iyah evidences. As for the meaning of
the ‘Uqubah (punishment) in respect to the Hadd, then what applies
upon the ‘Uqubaat (punishments) applies to it in terms of the ‘Illah
and Qiyaas (analogy)...
We will now present some examples to make this clear:
- Example: It was narrated that ‘Umar (ra) was uncertain in respect to
the retaliation for the murderer (i.e. the killing of the killer) in the
case where seven people participated in the killing. So ‘Ali (ra) said to
him:
“O Amir of the believers, do you see that if a group participated
together in theft that you would cut off their hands?” He replied:
“Yes”. So he (‘Ali) said, “And so it is just like that”.
In this example, analogy was made between the killing of seven who
had participated in the killing of someone and the cutting of the
hands of thieves if they had all participated in the theft. The ‘Illah
here was: ‘The joint participation in an act that obliges the
punishment’. This then relates to the ‘Uqubaat (punishments) and

Qiyaas (analogy) was used in respect to killing those who share
together in the punishment of death based upon cutting the hands of
those who jointly share in the Hadd (fixed prescribed punishment) of
theft.
- And the example of the Messenger ﷺ who said:
«ي بطونها
ألا إن قتيل الخطأ شبه العمد قتيل السوط والعصا فيه مئة من الإبل أربعون ف
أولادها»
“Indeed, the semi-intentional killing by mistake, the killing by a whip
and stick, has (in blood money) one hundred camels, forty of which
are pregnant”
From this the ‘Illah (Shar’i reason) was deduced in respect to the
killing by the whip and the stick intentionally, and it (the ‘Illah) is ‘the
intentional killing by that which does not kill in most cases’, which is
known as Shibh ul -‘Amd (semi-intentional killing). And this was used
in the making of analogy (Qiyaas) of the intentional killing by small
rocks or repeating striking i.e. all that which does not kill in most
cases. This killing then does not have retaliation attached to it but
rather a heavy blood money. And the Hukm is not restricted to the
whip or the stick but rather to everything that does not kill in most
cases.
However, if he was killed by that which kills in most cases like a knife
or gun then this would be intentional and the killing of the killer
would apply.
Here, Al-Qiyaas (analogy) was used and in the first example we made
analogy between killing those who took part jointly in the intentional
killing and cutting the hand of those who jointly participated in the
theft due to the ‘Illah ‘The joint participation in an act that obliges
the punishment’. In the second example we made analogy upon
considering the killing by small stones as being semi -intentional,
upon the killing by a stick being semi -intentional (Shibh ul -‘Amd) as

was mentioned in the Hadeeth due to the ‘Illah ‘The killing with the
tool that does not kill in most cases’.
I hope that the answer has been clarified.
Your brother,
Abu Yasin