This is part 3 in a series of 4 posts.
:: Part 3 :: An Islamic “Law-and-Economics” Jurisprudence
Can one suggest the presence (latent or real) of a law-and-economics version of Islamic criminal law? The diya doctrine of financial restitution for injury has features that invite this consideration. Diya applies, not only to whole human selves, but also to individual limbs. Hence the financial restitution (diya or ‘aql) for an eye is half that of the self, as a human being possesses two eyes. This idea is bolstered even further when one considers what many to take as an embarrassing side of medieval Islamic law, the one concerning slave laws. A slave’s diya is the slave’s price. Compensating for harm delivered to someone else’s slave is assessed against the diminishment in the market value of the slave. Has medieval Islamic law been, at least partly, a law-and-economics system?
Dwelling on diya laws will take a while to cover; it does include some interesting anomalies. For example, some Shāfiʿī and Ḥanbalī jurists suggested what they called a heightening (taghlīẓ) of the amount of diya, based on circumstances. Considerations include: a) killing a close (unmarriable) relative, such as a mother, b) killing in the Sacred Precincts in Mecca, c) killing while on pilgrimage, and d) killing in a sacred month.[1] Each heightening adds a third of the amount to the diya, hence combining all four leads to payment that is 2.33 times the normal diya (1/3 times 4 equaling 1.33, to be added to the diya; hence 2.33). This example shows that non-economic considerations enter into this economic debate, at least on the terms of the premodern tradition.
We now need to expand to a point of analysis that combines criminal and civil law schemes. Crimes and torts are violations of sometimes written, sometimes unwritten codes of social conduct. A modern law-and-economics analyst will move us forward in this direction: In both “punishment” and “restitution,” one corrects an unacceptable intervention that amounts to bypassing the market. In this manner, embezzlement and murder may look more similar than dissimilar: When I embezzle your money, I disable the market from judging our efforts at competition reasonably and justly; when I take your life, I am, most importantly, doing that same thing.[2] When one commits the acts of murder, fraud, or theft, or causes an accident, they have disturbed the normal balance created by an even-handed market that calls for both a compensation in the case at hand and an attempt at deterrence to make repeating these acts undesirable.
Medieval Islamic law won’t go that far. Mixing economic and personal factors, rights of victims, deterrence-based and retributive explanations for punishment, Islamic law allows a family to exact financial restitution (diya) in lieu of the execution of their kin’s murderer. Diya, in a mitigated version inferior in value to that of murder blood-money, is also available in the case of unintentional killing.
Which is it then? Do economic considerations explain much of Islam’s criminal laws? If yes, to what extent? If you stick to the analysis presented by one jurist, you have a higher chance of getting clear and consistent explanations, but you lose the richness afforded by other explanations. Let’s pursue an example. ʿAlāʾ al-Dīn al-Kāsānī is a jurist who hailed from Central Asia but settled in Aleppo in the 6/12th century and is one of the best and most systematic Ḥanafī writers of law and jurisprudence. In his Badāʾiʿ,[3] he teaches us that crimes are of three types: a) a violation of God’s rights (the five crimes of theft, fornication and false accusation of it, intoxication, and wine imbibing—aka hūdūd), b) a violation of human rights (retributive crimes, qiṣāṣ), and c) all other crimes, i.e., the plethora of potentially criminal acts whose designation as crimes and punishment is discretionary and is part of the state and judicial crafts. The difference between categories (a) and (b) is that the latter is a terrain of forgiveness by human beings. It seems that the ḥudūd are still the realm of no-explanation or weak explanation. It will comfort a Kāsānī-follower, however, that, as I stated early on in the previous section, category (a) crimes are the crimes that are regularly demoted to category (c) once culpability evidence is questioned.
Qiṣāṣ and ḍamān, two Arabic terms denoting compensation—one via non-financial retaliatory measures and the other broadly financial—meet at the juncture of “attention to the victim” (to contrast with “attention to the criminal”). The connotation of qiṣāṣ is compensation via “trailing behind the crime,” and the trailing is not devoid of the element of retribution, while ḍamān indicates “compensation via carrying a burden or being a guarantor of addressing it.”[4] In both cases, an assumption that the conditions prior to a belligerence or a delict were fair or at least unworthy of disturbance.
One cannot, however, beat out of these points an Islamic law-and-economics doctrine. A short answer to the question “does some form of Islamic law and economics’ theory result from an emphasis on financial restitution over other punishment?” is that this would be a special form of law and economics theorizing. True, a man’s diya is twice that of a woman. This distinction between a man’s and a woman’s diya has now been done away with in Iran,[5] confirming that the old calculation was in fact based on the market capacity of the victim not her or his inherent value as a human.[6] Abandoning traditional legal reasoning‘s emphasis on the retributive and deterrence sides of punishment would still be a genuine innovation.
Notes:
[1] The four sacred months are Muḥarram, Rajab, Dhūʾl-Qi‘da, Dhūʾl-Ḥijja of the Islamic calendar.
[2] Richard A. Posner, “An Economic Theory of the Criminal Law,” Columbia Law Review 85, (1985): 1193.
[3] Al-Kāsānī (d. 587/1191), Badā’i‘ al-sanā’i‘ fī tartīb al-sharā’i‘, vol. 9, ed. A. ‘Abd al-Mawjūd et al. (Beirut: Dār al-Kutub al-‘Ilmiyya, 2002), 176-81.
[4] The Arabic words qaṣa al-athar literally means traces the trail of something; ḍamina means to guarantee something or bear responsibility.
[5] On June 26, 2019 Iran’s Supreme Court forced the state to pay the difference between the two diya amounts, given the fact that men and women’s earning abilities and financial responsibilities are indistinguishable in modern times. For a critical perspective, see “Blood Money Paid for a Woman in Iran Is Still Half That Paid for a Man, Despite New Ruling,” Center for Human Rights in Iran, August 2, 2019, https://iranhumanrights.org/2019/08/blood-money-paid-for-a-woman-in-iran-is-still-half-that-paid-for-a-man-despite-new-ruling/. See also Human Rights Watch, World Report 2020: Events of 2019 (Human Rights Watch: United States of America, 2020), 288, https://www.hrw.org/sites/default/files/world_report_download/hrw_world_report_2020_0.pdf.
[6] Imposing diya is not part of the criminal justice system in most Muslim countries today. In Saudi Arabia, the diya is still imposed based on the 1 (female):2(male) ratio. The Saudis (uncritically) are loyal to an old economic calculation of the victim’s contribution to their families, and the Iranians have updated the economic calculation. In either case, an economic valuation is at work.