April - 1998 Vol# 14 - Issue# 15

Revisiting the Islamic Shariah Law in Deterring Criminality

-Hamid R. Kusha, Ph.D.

Is the Islamic Shariah Law capable of significantly deterring criminality in Islamic societies, as it has been claimed by some criminologists (Adler 1983) and has been documented by some others (Souryal 1988). The corollary is: could Western criminology gain insights from the Islamic theory of crime and punishment?

I. The Islamic Shariah Law and Deterrence of Criminality

Sam Souryal in his prize winning paper (1988) gives some of the reasons for the low level of criminality in the Kingdom of Saudi Arabia. The main reason is the Islamic Shariah Law that the Saudi justice system is effectively utilizing in that society. The significance of this success has consistently been dismissed by students of comparative criminology, argues Souryal, because the Saudi system of punishment is considered "horrendous," not to mention the fact that the official rates are always suspect especially in a Middle Eastern context (1988:1). Based on field research in Saudi Arabia, Souryal's findings shed light on several aspects of the Saudi success, warranting a reconsideration of the rationale that permeates in societies which are not obsessed with crime, to borrow Freda Adler's famous term (Adler 1983). Although in Adler's comparative study of 63 nations, Saudi Arabia's success in deterring crime occupies an important place, Souryal finds Adler's discussion of the Saudi system inadequate due to two main difficulties, one procedural, and the other theoretical (1988:2). The procedural difficulty stems from Adler's asking the "wrong sources" by citing "government leaders, administrators, and scholars" (1988:2). The theoretical difficulty stems from Adler's data which, "did not reach beyond the official data or investigate the reasons behind the reported low criminality in these nations" (1988:2). Souryal's research is to remedy some of these misconceptions about the Saudi system. However, Souryal cautions the reader against the trap of "over-expectation," writing that the focus of his paper is on the "dynamic role of Shariah in Saudi Arabia" (1988:3). He writes further: "In recent criminological literature, there seems to be growing recognition among researchers that the central question in understanding crime may not be the study of criminals, the strategies of the police, or court procedures, but rather the encompassing effects of the law and its potential to realizing justice through its role as a moralizing and deterrent agent...." (1988:3). Souryal implores criminologists to probe questions such as "...how many citizens chose not to engage in criminal behavior and why. What is the role of homogeneity, religiosity, and social reinforcement in criminal behavior?" (1988:3). The Saudi success is apparently related to a positive resolution of these questions as well. After giving a synopsis of the logic of the Shariah Law, Souryal compares the Saudi crime rates with six other Muslim nations (Syria, Sudan, Egypt, Iraq, Lebanon, and Kuwait). He arrives at the same conclusion: the reasons for the Saudi success

ought to be located in the application of Shariah Law: the Saudis apply the Shariah, others do not. The Saudi low crime rates also compares favorably with the world crime rates for the same reason, the effective application of the Shariah Law. Souryal rejects two basic assumptions that have been proposed to explain the effectiveness of the Saudi system: homogeneity of the Saudi society, and the severity of its punishment. Souryal details his reasoning for rejecting these assumptions. Finally, Souryal focuses on two major sociological theories, social disorganization and social learning, in explaining what he characterizes as "the unique phenomenon of low criminality in Saudi Arabia...." (1988:19). In retrospect, the picture that emerges is one of heterogeneity, low criminality, social organization, and a populace that is, by and large, cognizant of the importance of non-involvement in criminal behavior. Deterrence is not maintained through harshness of the Saudi punishment regime, a picture that Western media has depicted of the Saudi system, but through the combined effects of social organization, positive learning and purity of the faith. The element of faith is of special significance in Souryal's scheme: the purity of the faith bridges the gap between government and common populace because the monarchy, through various means, can portray itself as the custodian of the faith (1988:19).

II. A Critique
The more Souryal details the various aspects of the Saudi society in order to give the reasons for the success of the Saudi application of the Shariah Law, the more he depicts the picture of a "unique" society with a unique interpretation and application of the Shariah Law. This uniqueness is quite problematic because it makes the application of the Shariah Law almost impossible in the context of the realities that surround other Islamic societies. A set of laws that is only applicable under very "unique" conditions is, by necessity, an exotic set of laws; worse yet, the effectiveness of such laws requires the continuation of the unique set of conditions making the laws quite static and resistant to change. This, of course, is both antithetical to the pace of change in many modernizing Islamic countries and to the thrust of the Islamic Shriah Law whose main source, the Qur'an, allows for the consideration of time and space, and, therefore, the element of change. A synopsis of the two problems follows.

The Element of change and Social Cost of Deterrence

Souryal compares the Saudi success with six Muslim nations that do not apply the Shariah Law. These are modernizing societies, some of which (Lebanon, Iraq, Sudan, and Kuwait) have gone through tumultuous change and social upheavals (war, invasion, revolution). However, these societies have not been infested with crime. Therefore, the element of change has not been impeded, whether such changes have been positive or negative. In contrast, Saudi Arabia has remained a very stable society since its founding in 1932 as a national entity under King Abdul Aziz ibn al-Saud. This stability has been maintained through a Durkhamian mechanical solidarity, a solidarity that has been maintained through the Saudi's export of oil generated economic might. In contrast to the other six nations, Saudi Arabia does not have a formal written constitution (The Middle East and North Africa, 1991:761). Without a constitution and its appropriate checks and balances, it is quite easy to see how the Saudi deterrence applies to predatory type of crimes: through the maintenance of mechanical solidarity. This may indeed be laudable for those criminologists who argue that true crime is predatory crime. However, what makes this argument problematic is the fact that the main challenge facing most modernizing Islamic societies is not that they are infested with predatory crimes and therefore should emulate the Saudi model for applying the Shariah Law. The challenge is that of modern concepts pertaining to law, crime, justice and adjudication that they want to institutionalize within their Islamic cultural orientations and characters. The challenge is how to change, how to democratize, how to modernize law and justice without losing a cultural identity that has taken centuries to build. To give an example, it could be argued that in countries such as Iraq and Sysria the same type of one party rule prevails, not to mention the fact that the two states are notorious in the suppression of political dissent. However, in Egypt, Lebanon, Iraq and Syria women enjoy a wide range of liberties that Saudi women would not even dream

about having. Ironically, this restriction has been legitimized in the name of the Shariah Law. As a result, Saudi women are veiled, they are not allowed to drive, to travel, to assume child custody in case of divorce, to divorce their spouses, to assume high office, and to socialize with the opposite sex in public. This social seclusion has deprived Saudi women of educational, social, and cultural savvy and sophistication that most middle and upper class women enjoy in other modernizing Muslim nations. However, this seclusion has not shielded Saudi women from sexual crimes including rape judging from Souryal's data. Although the Saudi rate of sexual crime has been lower than other nations in the data, this lower rate has been maintained at the cost of segregation of women in Saudi Arabia. In fact, when we compare Syria's rate with that of Saudi Arabia, the difference is not all that startling considering that the former's rate is 5.0273 per 100,000 and the latter's is 3.2000 per 100,000 (1988:10). It should be noted that the population of both Syria and Saudi Arabia have been cited as around 11 million in Souryal's data. My source gives a population of 11,338,000 for Syria and 14,016,000 for Saudi Arabia in 1988. This population difference makes Saudi rates of female participation even worse, not to mention the fact that the Syrian variation of female participation in labor force is hardly comparable with that of the Saudi Arabia. This female participation in labor force has not made Syrian women more vulnerable to sexual crime (e.g rape) in comparison with much more restricted and socially restricted veiled Saudi women, a point that we explored above from Souryal's own data. The import of this point stems from the fact that control of female sexuality has played a significant role in a strict and misogynous application of the Shariah Law among a new breed of fundamentalist Islamic movements in the Islamic world, including Saudi Arabia. For these forces, marginalization, sexual segregation, forced veiling, and forced seclusion of women is an ideal that could be achieved through the Shariah Law. One may wonder why other Islamic societies that have utilized the Shariah Law have not been all that successful in combating crime. One such society is the Islamic Republic of Iran, the only other major Islamic nation that has institutionalized the Shariah in its criminal justice system but has failed egregiously in combating crime in Iran. One may argue that the Iranian criminal justice system has failed because the system does not adhere to various Islamic criteria in the same manner that the Saudi system adheres to such criteria. However, this would be begging the question because the Islamic regime is adamant that it adheres to such criteria. In fact, jurisprudence in the Constitution of the Islamic Republic is one that adheres, theoretically, to two central constituent elements of the Shariah: the Qur'an, and Prophetic Sunna. Now, it could be argued that the Saudi success can be located in the fact that they adhere to Whabism in contrast to Iranians who adhere to Shi'ism. However, this is not a viable argument because both systems follow the Shariah Law, therefore the theory of jurisprudence in both systems, notwithstanding their procedural nuances, follows the same principal Quranic injunctions (ahkam). The question is how can the Shariah Law be crime deterring in one Islamic society and not deterring in another Islamic society? This is an important question because unless Souryal contends that the Saudies have arrived at a unique interpretation of the Shariah Law in content, a very unlikely contention--the Islamic theory of jurisprudence is quite similar in both Sunni and Shi'I versions notwithstanding some interpretive nuances-- one would expect the same success in Iran. This brings us to the question of procedural application of the Law.

The Question of Procedure

Souryal may contend that the Saudi justice system applies the Shariah Law differently than the Iranian justice system, and, therefore, the Saudi success ought to be located in the procedure, rather than the content. However, there is one main problem with this contention: Souryal mentions that Sudan, under the regime of ex-President Ja'far Numirie, applied the Shariah Law for sometime, and, then, upon Numirie's removal from power, the Shariah Law was abolished. Does this mean that the Shariah Law was found to be totally inapplicable there, although Sudan is a Muslim country? In other words, we have three cases of the application of the Shariah Law: the Saudi case, whereby the application of the Law has significantly reduced the crime; the Iranian case, whereby the application of the Law has seen an upsurge in crime; and the Sudanese case whereby the application of the Law has been abolished altogether. These cases may indeed enhance the argument that perhaps the Saudis have created a unique application of the Shariah Law.

However, there is an inherent weakness in this argument: a system of law that requires a unique social and economic setting to be effective, by necessity, looses it power of advocacy. It is futile to argue that the Shariah Law, one of the most comprehensive systems of canonical laws with nearly fourteen centuries of application, is only fit for Saudi Arabia among a multitude of Muslim societies in Asia, Africa, and the Middle East. In other words, the Shariah Law is either totally irrelevant to the modern Islamic world notwithstanding the unique success of the Saudis, or there are other variables that could enter the picture. One such intervening variable is the economic might of Saudi Arabia that allows the state to impact society's organization, and therefore, predatory crime. This becomes more convincing when we consider the fact that both Sudan and Iran are going through the processes of social disorganization. This aspect of the two societies, of course, justifies Souryal's ignoring the two in spite of the fact that the issue of application of the Shariah Law is involved. In fact, there could be other reasons justifying Souryal's reluctance to add the above examples to his analysis: (1) the fact that the Sudanese application of the Law was temporary not allowing for the maturing of the system; and (2) the fact that reliable data is hard to collect concerning the operational dynamics of Iran's criminal justice system. These factors would have made Souryal's research quite difficult, if not outright impractical. I appreciate these points. However, the problem remains with Souryal's approach, in my judgement, because he is totally silent on the Saudi economic might. His findings, laudable as they are, give the impression of a unique system that is incapable of being utilized in any other Islamic society because the Saudi application of the Shariah Law is of a mechanical nature working in isolation from the efficacy of a socially organized society. This, of course, is very hard to substantiate on a micro level because the relation between economics and crime is not necessarily a causal one considering that crime is not a phenomenon of socially disorganized societies. The economics acts like a double-edged sword: it may allow the state to intervene positively to control crime, at the same time that it may open up new opportunities for crime. However, because economics does influence how a society would be influenced by the forces of organization and disorganization, economics does enter the etiology of crime.

II. Economics and Social Organization

From a comparative perspective, one could re-examine the relationship between the Shariah Law and deterrence by approaching the case of the Islamic Republic of Iran. In this new scheme, we could concentrate on pre-Sharia (1925-1979) and post-Sharia (1979-1994) Iran and compare the low official rate of predatory crimes of the pre-Sharia with the high predatory crime rates of the post-Sharia period. From this comparison, we could make inferences that the Islamic Sharia Law does not deter crime by itself (the case of present Iranian society); it is in conjunction with economics that the Sharia could deter crime (the case of the Saudi society). Once this is established, we could further infer that Souryal's methodology would be strengthened by adding the economics. In the following pages, this extension is made by briefly exploring the relationship between crime and economics.

Predatory Crime and Economics

One could safely argue that predatory crime which in essence is an urban phenomenon is related to economics and to the process of social disorganization. This relation, of course, is not of a one-to-one and causal nature; it is more of a trend in that it is plausible to argue that economic disparity, and lack of employment opportunities within a socially disorganized context, are more criminogenic in comparison to social organization, economic parity and availability of employment opportunities. The plausibility of this argument could be validated generally by crime data pertaining to inner city, and outer city (suburban) areas of industrialized parts of the world. For example, a significant percentage of the UCR based predatory crimes in the United States of America pertains to inner cities that could be characterized as socially disorganized. The same trend is applicable to other metropolitan areas of the world, although it has been observed that "...international comparisons are exceedingly difficult to make because of different criminal statues, reporting procedures and cultural interdicts" (NCCPV 1971:225). Adler (1983) is more optimistic about international comparisons. Cautioning her readers, she observes that: "Until recently it was virtually impossible, since efforts to collect and analyze cross national data, by and large, had been limited in scope, mostly restricted to developed countries, to specific crimes, or to particular offender groups" (1983:1-2).

Predatory Crime and Economics

This difficulty has been remedied, to some extent, through the efforts of the United Nations in 1976/77 according to Adler: "...when the first major project was conducted to survey the forms and dimensions of criminality on a world-wide basis" (1983:2). Although not cited among Adler's ten surveyed countries, Iran under the Shah, Muhammd Reza Pahlavi (r.1941-1979) could safely be categorized among the "nations not obsessed with crime" following Adler's rationale. This would be deterrence without the Shariah, but through a smooth functioning of the Iranian economy under the Shah's regime. The 1977-78 data on International Crime Statistics compiled by the INTERPOL validates this point by giving a relatively low level of violent, property and drug related crime figures. Incidentally, the year 1977 corresponded to the beginning of social unrest in Iran that culminated in the overthrow of the Shah in 1978-79 and the beginning of a creeping social disorganization that ensued. With the coming to power of a new Islamic regime, Iranian society entered a period that has resulted in ongoing social disorganization. A revolution, by itself, is a very disruptive event. The Iranian revolution's social disorganization impetus has been augmented by war, flight of human capital, corruption, and economic mismanagement. Added to this is a criminal justice system that attempts to enforce the Islamic Shariah Law based on very medievalist and discriminatory criteria. The overall social disorganization of the Iranian society has not only rendered this system ineffective, it has led to a rise in every type of crime.

III. The Lesson for Western Criminology

There is no doubt that Western criminology as a coherent and modern system of law, justice and adjudication could take valuable lessons from non-Western (e.g. Islamic) system of conflict resolution. We owe a debt to Souryal and Adler and other comparativist criminologists whose research has opened new avenues in our understanding of the complexity of crime as a social product. Those who consider the American criminal justice system as the best in the world may take a sobering lesson from Souryal's findings as much as those who argue that the American criminal justice system is the worst in the world. This said, I have a nagging question in my mind as it relates to Souryal's rationale that the Saudi application of the Shariah Law is the main the reason for the Saudi's low crime rate. There is no doubt that the nonengagement of the average citizenry in crime is an important factor that Souryal rightly considers in this scheme. However, what I see lacking is the role of the Saudi economic might that should be considered. The overall lesson, I believe, is not the Sharial Law or for that matter the modern constitutional law, but the issue of social justice in the application of any set of laws that ought to be considered. Table of Contents

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