Tuesday, September 16, 2014

Jurisprudence without the prudence

We have seen much in the news recently about attempts by those who call themselves the Islamic State (IS) to establish a new Caliphate—a sovereign state governing the entire Muslim world under Islamic law (Sharia), derived from the Quran and the Sunnah (the example of Muhammad).

Here is an example of the “wisdom” of Quranic jurisprudence:

As for the thief, both male and female, cut off their hands. It is the reward of their own deeds, an exemplary punishment from Allah. Allah is Mighty, Wise (5:38).

Pardon me for not thinking this very wise. We might call it jurisprudence without the prudence. A thief, presumably, is unwilling to work for his own support. After the imposition of Sharia, he is rendered unable to work, at least not at full capacity. How, exactly, is this any better for him or for society? And lest you are tempted to think that this is an archaic penalty no longer applied, you might want to view this video, but not if you have a weak stomach.

Contrast this with Biblical law. In the Bible, two things are required of a thief:  (1) he must return what was stolen (or the exact equivalent, if it has been disposed of), and (2) he must pay an additional amount as a penalty. This additional amount also goes to the victim rather than to the state. The amount varies from twenty to four hundred percent of the value of the stolen property. The precise amount depends on a number of circumstances that either aggravate or mitigate the guilt of the crime. If the thief does not have the means to make restitution immediately, he is required to work off his debt…not an easy thing to do if he is missing a hand, as per Islamic law. How is the victim to be restored if the perpetrator is maimed? Much better is the admonition of the apostle Paul,

Let the thief no longer steal, but rather let him labor, doing honest work with his own hands, so that he may have something to share with anyone in need (Eph. 4:28).

Further Details
If a thief has a change of heart and voluntarily comes forward to confess his crime without otherwise being found out, he must return what was stolen and add twenty percent of its value (Lev. 6:1-7; Num. 5:6-7). This is the smallest penalty prescribed in the law and encourages repentance and voluntary restitution.

If a thief does not have a change of heart, but is caught with the stolen property in his possession unharmed, he must restore what he has taken and pay an additional amount equal to the value of the stolen property. Scripture supposes a case of stolen livestock. “If the stolen beast is found alive in his possession, whether it is an ox or a donkey or a sheep, he shall pay double” (Ex. 22:4; see also vv. 7, 9; and cf. Isa. 40:2; Rev. 18:6). The thief must restore the stolen property and add one hundred percent of its value.

If a thief kills or sells stolen livestock, he has a much higher cost to pay:  five oxen for an ox, and four sheep for a sheep (v. 1). As the table below demonstrates, this constitutes a penalty of three hundred percent in the case of a sheep, and four hundred percent in that of an ox.[1]

Thief gains
Thief pays
Net loss

Two questions present themselves at this point. First, why the greater penalty for livestock killed or sold as opposed to found alive in the thief’s possession? According to Cohn, it is because the killing or selling of the stolen animal implies the thief is a persistent offender.[2] Cassuto offers a different explanation.
The reason…is possibly this:  if the owner of the animal is able to recover his own beast, which is dear to him, it is sufficient for the thief to add another beast like it, but if the thief is unable to restore the stolen animal, he must give the owner additional compensation.[3]
It may be better however to think something more than simple theft is in view. In other words, the thief is not stealing for his own personal use, but in order to turn a profit from his thievery. He is trading in stolen goods—slaughtering stolen animals to sell the meat or else selling the live animals. This is a more serious crime. Consequently, the punishment is greater.

The second question is why should a greater penalty be imposed for disposing of (killing or selling) a stolen ox than for doing the same with a sheep? The answer may be that the theft of an ox imposes a greater hardship on the owner since he is deprived of its labor value, which a sheep does not possess.[4] In stealing an ox, a thief is stealing a man’s livelihood and thus putting his life and the life of his family at risk. As Bush explains,
This higher degree of penalty was annexed to the theft of oxen on account of their great value in the rural economy of the Israelites; for they used no horses in their husbandry. The ox did every thing [sic] on their farms. He plowed, he threshed out the corn, and he drew it when threshed to the barn or garner. If therefore the theft of an ox was more severely punished than that of any thing [sic] else, it was on the same principle on which an increase of punishment is inflicted for the crime of stealing from the farmer his plough, or any part of the apparatus belonging to it.[5]
Others explain the difference as being due to the greater effort that must go into the raising and training of an ox.[6]

In light of the requirements laid out above, what are we to make of what Solomon says in Proverbs? 
If a thief is caught, he will pay sevenfold;     he will give all the goods of his house (Prov. 6:31)
In this context, “sevenfold” is hyperbole. It means abundantly (cf. Gen. 4:15, 24; Lev. 26:18, 21, 24, 28; Ps. 12:6; 79:12).

[1] The Code of Hammurabi requires thirtyfold restitution for the theft of “an ox, or sheep, or ass, or pig, or boat, from a temple or palace,” and tenfold restitution for stealing the same from a freeman (§ 8). The Hittites originally required thirtyfold restitution for theft, but moderated the penalty to fifteen-fold, without making distinctions between victims (§ 57ff.).
[2] Haim H. Cohn, The Principles of Jewish Law, Menachem Elon, ed., (Jerusalem, Israel:  Keter Publishing House, 1975), col. 496
[3] Umberto Cassuto, A Commentary on the Book of Exodus, p. 282. Italics added.
[4] Soncino Chumash, p. 479
[5] George Bush, Commentary on Exodus, p. 323
[6] Umberto Cassuto, A Commentary on the Book of Exodus, p. 282

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