Hiraba or qat‘ al-sabil (brigandage; highway robbery) is one of a handful of crimes known in Islamic law as hudud (sing. hadd); its distinguishing legal feature is the mandatory nature of the penalties that are attached to these crimes. The Qur’anic origin of the crime of brigandage is found in verse 5:34-5 (Al-Ma’ida) where the Qur’an states that ‘‘the recompense for those who wage war against God and His messenger and spread disorder throughout the land is either that they are killed, crucified, amputation of their limbs on alternating sides or banishment from the land, unless they repent before they fall under your control, in which case God is Forgiving, Merciful.’’
Qur’anic commentary reveals an interesting body of disagreement regarding the circumstances in which this verse was revealed. Although the majority of interpreters concluded that it dealt with an incident involving a group of Arabs that at least outwardly professed Islam, others believed that this verse dealt with an incident involving pagans or a group from the ahl al-kitab who violated the terms of their peace treaty with the Prophet Muhammad. All commentators agreed that, regardless of the circumstances involved in the revelation of 5:34-5, the substance of the verses applied to Muslims. Jurists were also of the view that the crime of brigandage applied not only to Muslims but also to non-Muslims who were permanently residing in an Islamic state as a protected group (ahl al-dhimma).
According to the majority of commentators, a group of persons came to the Prophet in Medina and professed Islam. While in Medina, they grew ill (a condition that occurred frequently among Bedouins who visited Medina) and complained to the Prophet. In response to their complaints, the Prophet provided them with camels and shepherds and instructed them to depart to the outskirts of the city while they recuperated. When they recovered, however, they murdered the shepherds and made off with the camels. Historians reported that the culprits, in addition to killing the shepherds, also amputated their limbs and blinded them. The Muslims, however, were able to track them down and capture them before they returned to their home territory. Upon their return to Medina, the Prophet ordered their execution, which involved a combination of amputating their limbs on alternating sides, blinding them, and abandoning them in the lava plains outside of Medina until they died. The Prophet’s treatment of the criminals raised many questions in the eyes of the commentators, including whether 5:34-5, as well as the Prophetic statement prohibiting mutilation, subsequently abrogated the Prophet’s action in this case. Those who argued in favor of abrogation assumed that the verses in question were revealed after the aforementioned incident and represented divine reproach (‘itab). Others, however, argued that the Prophet’s actions went beyond the text of the verse and represented retaliation in kind (qisas) for the injuries inflicted by the culprits on the shepherds and that, accordingly, the verses did not abrogate the Prophet’s actions.
Finally, commentators also point out that the verse includes an elided noun—friends (awliya’) or servants (‘ibad) of God—because it is impossible for anyone to wage war against God in a literal sense.
Although the circumstances that were the occasion of 5:34-5 involved an element of treachery, jurists did not include treachery or deception (ghila) as an element of the substantive crime of brigandage. Instead, they focused on the effect of the crime on the security of the public. Accordingly, the brigand who was subject to the mandatory penalties for brigandage was defined by the Shafi‘is, for example, as ‘‘an adult Muslim interdicting the public highways who relies on force to overpower [a victim in circumstances where the victim is] distant from succor [of the government], even if in a town, or who enters at night into a home and openly takes property and prevents [its residents] from seeking succor of the government.’’ Later jurists also included other crimes of violence (e. g., rape) as instances of brigandage.
Despite the fact that the apparent sense of the verse seems to leave open the possibility for the exercise of discretion in the punishment of a brigand, Muslim jurists—with the exception of the Malikis, who preserved the state’s discretion in all circumstances— obliged the government to enforce a particular penalty depending on the substantive conduct of the defendant. The Hanafis, for example, held that, if a defendant brigand took property but did not murder, he was subject only to the amputation of his hand and foot; if he murdered and did not take property, he was to be executed; if he murdered and took property, the government could either amputate him and then execute him or simply execute him (this latter was the position of Muhammad al-Shaybani and Abu Yusuf, the two leading students of Abu Hanifa); and, if he terrorized the public without taking property or killing, he was to be banished.
The law of brigandage, although nominally considered a species of hudud, functioned as public law. For example, considerations of status (e. g., religion, freedom) were irrelevant to the application of the law of brigandage; this is in contrast with the private law of retaliation. Accordingly, if a free Muslim brigand killed a protected non-Muslim person or a slave as part of his brigandage, he would be subject to execution, although he would not have been subject to retaliation (according to most Muslim jurists) had he killed a slave or a non-Muslim protected person in the context of a private dispute. Similarly, although in principle hudud penalties were not generally applicable to non-Muslim protected persons, the law against brigandage applied to any person who ‘‘had undertaken to obey the law (al-multazim bi-fal-ahkam)regardless of religion. On the other hand, non-Muslims from hostile states (harbi) could not be charged with brigandage; they would simply be treated as prisoners of war.
The public aspect of the law of brigandage makes it similar to the law governing murder by treachery or deception (ghila). Because the defendant in both crimes is believed to threaten the public's security (as opposed to the security of a particular member of the public), the government's responsibility to protect the right of the public to safety trumps whatever private rights the victim or the victim's heirs may have. Accordingly, the government, in each of these two crimes, continues to have power to punish the defendant, even if the victim or his or her family has forgiven the perpetrator or otherwise reached a settlement with him.
Mohammad H. Fadel
World History
