Comparative Analysis on Doubt in Theft Subject to Jurisprudential Punishment from the Viewpoint of Jurisprudence of Islamic Denominations

Doubt in committing crimes is one of the factors that causes falling of Hadd (Islamic Punishments) from the viewpoint of jurisprudents of Islamic denominations. Cutting the hand of a woman or man who is a thief has been mentioned as the Hadd of theft as one of the divine punishments. According to type and amount of punishment, theft is classified to two types: Thefts which need Ta‘dhir and thefts which need Hadd as punishment. In order to carry out the theft’s Hadd, it is necessary for both thief and the stolen property to have some conditions. One of these conditions is not existing doubt in ownership of the stolen property. Jurisprudents of all Islamic denominations agree that for carrying out the Hadd of theft, there must not be any doubt in ownership of the stolen property for the thief. According to this condition, Hadd is not being applied to father’s theft of his son or daughter’s property and vice versa, Muslim’s theft of treasury (public property) and partner’s theft of common property and these situations do not lead to cutting hand. The reason of jurisprudents of Islamic denominations for not to applying Hadd in these situations is a speech of Prophet Mohammad that has said “Stop applying Hadd in doubts”. From the point of view of Shia jurisprudents, doubt is classified to two types that are jurisprudential opinion doubt and subjective doubt. Also from the point of view of Sunni jurisprudents, doubt is classified to three types: Doubt in the person who committed the theft, doubt in the place, doubt in reason. In this paper, the viewpoints of jurisprudents of Islamic denominations about doubt in theft as one of the factors that causes falling of Hadd punishment has been studied.