Stealing More is Better? Marginal Deterrence in Islamic Criminal Law of Theft
Abstract: This study represents the very first attempt towards applying economic analysis on Islamic criminal law, in particularly that related to the crime of theft. The study investigates what the economic theory of deterrence can tell us about the deterrence effects of Islamic law. Islamic criminal law offers two main punishments regarding theft; hadd, a fixed penalty which requires the amputation of the offender’s right hand under certain conditions and ta’zir, a punishment that is left to the discretion of the judge or ruler and is less severe than hadd. Deterrence is one of the main objectives for Islamic criminal law. Nevertheless, from the viewpoint of ‘marginal deterrence’ theory, lesser crimes with low social harm are punished severely in Islamic criminal law while crimes with high social harm are punished more leniently. Consequently, criminals would prefer to commit the latter type of crimes and economic cost of crime would significantly rise. The reason behind such an inefficient punishment setup is that the Islamic jurisprudence (fiqh) relating to the punishment of theft has been developed in archaic societies, where some crucial economic and legal concepts were not fully developed or taken into consideration by Muslim scholars in the 8th and 9th century A.D.. This study implies that if Islamic criminal law is introduced in Arab Spring countries in its current form, certain, socially very harmful, types of crimes are likely to become more frequent. A call for a modern reinterpretation and recoding of Islamic criminal law of theft is essential for any attempt to apply Shari’a in Islamic countries.
