THEFT PUNISHMENT IN ISLAMIC LAW AND INDONESIAN CRIMINAL LAW: INITIATIVE FOR HARMONIZATION FROM THE PERSPECTIVE OF SHARUR’S BOUNDARY THEORY

Abstract

This study seeks to find a formula on how Islamic law contributes to Indonesian criminal law reform, particularly in the imposition of theft, by utilizing Sharur's Boundary Theory (Naẓariyyah al-Ḥudūd). This field of research is considered imperative because the implementation of Supreme Court Regulation Number 2 of 2012 concerning Adjustments to the Limits on Misdemeanor Crimes and the Number of Fines in the Criminal Code (Misdemeanor Crimes) is felt to have not been maximized. This study uses normative juridical research methods, with descriptive-qualitative analysis. It can be deducted from this study that the theory of the boundaries of the ijtihad area determines the punishment in Islamic. The punishment for the crime of theft, the amputation of the hands mentioned in the Qur'an, is the maximum form of punishment. Thus, it is possible that there are punishment in other forms that fall under the category of cutting off one's hand, based on several verses of the Qur’an, including in Al-Māʾidah 5:38, al-Isrāʾ 17:33, al-Baqarah 2:178, and al-Nisāʾ 4:92. Even though this opinion may raise objections, for the purposes of reforming Indonesian Criminal Law, it is suggested that this opinion is still relevant for consideration. The study emphasizes the significance of understanding and considering Sharur's boundary theory for judges to make informed decisions in Sentencing.