Comparative Study on the Crime of Ḥirābah (Robbery) According to Imam Abu Hanifah and Imam Syafi’i

Abstract

The crime of robbery, known as ḥirābah, falls under the category of crimes punishable by punishment (ḥadd). However, there are differences of opinion between Imam Abu Hanifah and Imam Syafi’i regarding certain aspects of the criminal provisions for ḥirābah. These differences pertain to the location of the crime, the legal status of multiple conspiring perpetrators, and the legal status of female perpetrators. To comprehend the perspectives of the two Imams, a thorough understanding of their respective methods for determining the law is necessary. This study employs library research as the methodology, utilizing document studies and secondary data sources for analysis. The descriptive-analytic and comparative data analysis approach is applied. The research findings reveal two key points. First, according to Imam Syafi’i, the letter "aw" in Surah Al-Māidah verse 33 signifies clarification and specification (bayān wa tafshil), implying that punishment should be based on the actions of the Muḥārib. In contrast, Imam Abu Hanifah argues that the letter "aw" represents an option, allowing judges flexibility to select the most suitable sentence. Second, the disagreement between Imam Abu Hanfah and Imam Syafi’i regarding the criminal culpability component of jarmah ḥirābah can impact the application of non-discriminatory laws if not adequately addressed, potentially leaving gaps in their implementation.