Stealing more is better? An economic analysis of Islamic law of theft

This study is the first attempt (in the field of Law and Economics) to apply economic analysis to shari’a or Islamic criminal law, in particular, that aspect of the law pertaining to theft. Shari’a imposes two main punishments for theft; hadd, a fixed penalty of amputation of the offender’s right hand under certain conditions and ta’zir, a discretionary punishment, less severe than hadd. From the viewpoint of marginal deterrence and multiplier principles, lesser crimes with low social harm are punished more severely with hadd whereas crimes with high social harm are punished with ta’zir. Moreover, as the probability of detection and sanction is less in those crimes of high social harm, criminals would have more incentive to commit them. Consequently, if Islamic criminal law is to be applied in its current form, crimes of high social cost are likely to become more frequent.     

Freedom of association in labour relations in the context of the <Emphasis Type="Italic">Maqasid</Emphasis>-<Emphasis Type="Italic">al</Emphasis>-<Emphasis Type="Italic">Shari’ah</Emphasis> principles

Labour relations are an important chapter in economic and industrial development. Labour relations are divided into personal employer-employer relationship and collective relationship between employer and trade union. The collective relationship forms the core of the employees’ right to freedom of association. This article discusses the right of employees to freedom of association including the right to strike from the Islamic perspective. The Islamic principles applicable in this context are Maqasid-al-Shari’ah (the higher objective of Islamic law), Haqq and Jama’ah (the functional concepts in Islamic law). Freedom of association in labour relations which is basically a western concept suits the three Islamic principles and the Islamic principles are in line with the ILO standards and European law. This article is written by using pure legal research method, i.e. adopting a content analysis approach with the Islamic sources such as the Qur’an and Hadith as a point of reference.     

<Emphasis Type="Italic">Alice’s Adventures</Emphasis>, Abductive Reasoning and the Logic of Islamic Law

How does a Muslim jurist think the law and how, accordingly, he judges a fact? Using Alice in Wonderland as hermeneutical device to explore the logic of fiqh, this article identifies a divergence between Western and Islamic legal thinking in the application of abduction as key form of inference in the law of Islam. In particular, looking at the fact/law relation in symbolic terms, the article highlights how, while a dichotomy between fact and law characterizes Western legal thinking, fiqh upholds a connection between the “real” and the “right” (?aqq), where the effort (ijtihād) in understanding sharī‘ah postulates the actualization of the “rule” (?ukm) in God’s creation. Thus, if sharī‘ah pre-scribes the Law, not only is the rule discovered through the sources (u?ūl), but the right has to be justified through a verdict de-scribing the fact, for the law to be validly stated for the given situation. In this sense, abduction as explanatory “hypothesis” (Peirce) and “inference to the best explanation” (Harman) of sharī‘ah provides an account for the probabilistic nature of fiqh, its ramification (furū‘) through verdicts, as well as for the epistemic and narrative function of the tradition as core aspects of the logic of Islamic law. At the same time, doubts can be raised about the compatibility between this logic and the deductive logic of modern state law, as a sub-product of Western legal thinking.     

Drug Treatment Policy in the Criminal Justice System: A Scoping Literature Review

This scoping review sought to map the emerging evidence on use of harm minimization drug treatment programs in criminal justice settings. A search of various data bases including Cochrane Database of Systematic Reviews Medline, ProQuest, SAGE Premier, Scopus, Taylor & Francis Online, and Web of Science yielded eight studies that met inclusion criteria. The available evidence suggests increasing adoption of harm minimization policy oriented programs by countries around the world. Specific programs adopted include needle and syringe exchange, methadone maintenance, buprenorphine maintenance and treatment in lieu of incarceration. Each of these programs has evidence to support their effectiveness in relation to individual harm reduction, disease reduction, increase treatment retention and reduced criminality. This article considers implications of the adoption of harm minimization policies by criminal justice systems.     

Linking <Emphasis Type="Italic">Signifié</Emphasis> with <Emphasis Type="Italic">Signifiant:</Emphasis> The Court of Justice of European Union as a Product-Defining Authority

Saussurean concept of signifie-signifiant agnation can be used to explain the EU law product-nomenclature referrals. The CJEU has an especially important role in developing detailed rules of product nomenclature interpretation in cases where ambiguities emerge. In its jurisprudence, the CJ pursues preservation of the predominant intuitive model of that interpretation even in cases involving composite products. Only in cases where the composition can easily be identified, the Court relies on the concept of the defining element—i.e. it takes the dominant element of the product as a product nomenclature determining one. With respect to novel products, the CJ applies the same general penchant. Therefore, with respect to such products, the Court attempts to establish their signifié-signifiant match by referring to analogous features and characteristics of already existing products. Such an approach is an evidence of the CJ’s self-constraint of its otherwise Demiurgic power concerning the product nomenclature. This argumentation implies that even the CN classification offers a catalogue of relatively rigid designators and that their rigidity is respected by the CJ. The CN designators are not perfectly rigid because the CJ takes into account not only the logical values of respective CN positions, but also the practical aspects (including transactional costs) of the CN classification, as well as the general objectives of EU rules underlying the CN position identification.     

Kant with Freud: Derrida’s Analysis of the Ancient Dream of Self-Punishment

During his 2000–2001 seminar on the death penalty, Jacques Derrida argues that Kant is the most ‘rigorous’ philosophical proponent of the death penalty and, thus, the thinker who poses the most serious objections to the kind of philosophical abolitionism that Derrida is trying to develop in his seminar. For Kant, the death penalty is the logical result of the fundamental principle of criminal law, namely, talionic law or the right of retaliation as a principle of pure, disinterested reason. In this paper, I demonstrate how Derrida attempts to undermine Kant’s defence of the death penalty by demonstrating both its internal contradictions (the tenuous distinction between poena forensis, that is, punishment by a court, and poena naturalis, natural punishment) and its strange affinities with the law of primitive peoples (as understood by Freud in Totem and Taboo). I argue that Derrida’s repeated returns throughout the seminar to Kant’s Metaphysics of Morals suggest that Kant’s seemingly rational defence of the death penalty is ultimately motivated by interests that belie the supposed disinterestedness of modern law and by a notion of natural justice that at once subtends and subverts all criminal law.     

Reflections on <Emphasis Type="Italic">Prince</Emphasis>, Public Welfare Offenses, <Emphasis Type="Italic">American Cyanamid</Emphasis>, and the Wisdom of the Common Law

The fundamental requirement of Anglo-American criminal law is that crime must consist of the concurrence of a guilty mind—a mens rea—with a guilty act—an actus reus. And yet, the criminal law is shot through with discordant lumps of strict liability—crimes for which no mens rea is required. Ignoring the conventional normative objections to this aberration, I distinguish two different types of strict criminal liability: the type that arose at common law and the type associated with the public welfare offenses that are the product of twentieth and twenty-first century legislation. Using famous cases as exemplars, I analyze the two types of strict liability, and then examine the purposes served and incentives created by subjecting individuals to strict liability. I conclude that common law strict liability is rational in that it advances the purposes of the criminal law, while the public welfare offenses are at best pointless and at worst counterproductive. I suggest that in this respect the common law contains more wisdom than the results of the legislative process.     

The Use of the Biblical Oath and Its Development

The use of the oath in Jewish law reflects the religious nature of this system of law: in case a litigant cannot receive justice from the human judges s/he is entitled to call on God by swearing an oath. I begin this survey of the use of oaths in Jewish law with a discussion of the nature of “swearing an oath” based on biblical stories and biblical rules that regulate the use of oaths outside court. I then focus on the use of the oath in court; I survey the domain of circumstances in which an oath is accepted by Jewish law as evidence according to the Bible, the Mishna, Gemara, and codifications. Finally, I exemplify how the oath is used in practice in the 20th century by one case from Rabbi Saul Ibn Dannan’s responsa book “Hagam Shaul”.     

Poetic Justice: An Interpretation of Lawyers’ Reactions to Verse Judgments

This article offers an interpretation of lawyers’ reactions to verse judgments, being judicial decisions rendered in rhymed poetry form. While, in recent history, there has been an unexplained break in the close historical connection between poetry and law, some judges nevertheless continue to render their judicial decisions in verse. This has met strong criticism from fellow judges, inevitably, but also from lawyers. However, there is no evidence in academic writing of anyone attempting to explain why lawyers are having these reactions. Endeavouring to fill that void, this research employs hermeneutics to offer an interpretation of lawyers’ reactions to verse judgments. The article analyses the varied opinions uncovered in five qualitative interviews with lawyers of different backgrounds, and contends that a movement of poetry back towards its utilitarian origins would see lawyers change their reaction to verse judgments, instead viewing them as an appropriate form of judicial expression.     

Before the Law: Criminalization,Accusation and Justice

This review essay critically engages three socio-legal books directed to the changing bases of criminalization; namely, Lacey (In search of criminal responsibility: ideas, interests, and institutions, Oxford University Press, Oxford, 2017); Farmer (Making the modern criminal law: criminalization and civil order, Oxford University Press, Oxford, 2016); and Norrie, Justice and the slaughter bench: essays on law’s broken dialectic, Routledge, New York, 2016). The texts explore how modern (largely English) institutions of criminal law proscribe, assign responsibility and appear through contradictory socio-political ‘constellations’. They variously reference criminal law’s expanding punitiveness as it: embraces revived character-based ways of attributing responsibility via ideas of risk; drifts away from a social function of creating civil order; and, works through a ‘broken dialectic’ that fails to recognize its ethico-political auspices. The ensuing ‘overcriminalization’ is referenced variously, but this review questions a tendency to work off legal lexicons, with consequent limitations placed on the scope of social analysis. Referring to Roman and Cape colonial forms of criminalization, this review highlights processes of accusation that call subjects to account as criminals, thereby signalling an initiating socio-political layer upon which unequal forms of overcriminalization rest.     

Probing the Depths of the Responsible Corporate Officer’s Duty

Many criminal law scholars have criticized the responsible corporate officer doctrine as a form of strict and vicarious liability. It is neither. It is merely a doctrine that supplies a duty in instances of omissions. Siding with Todd Aagaard in this debate, I argue that a proper reading of the cases yields that the responsible corporate officer doctrine is just duty supplying, and does not allow for strict liability when the underlying statute requires mens rea. After analyzing Dotterweich, Park, and their progeny, I probe the depths of this duty-supplying doctrine, including to whom the duty is owed, whether the duty is grounded in statute, cause of peril, or contract, and what the content of the duty is. Although the responsible corporate officer doctrine unveils questions we may have about duty generally, it is no more problematic than other duty-supplying doctrines in the criminal law.     

The Indeterminacy of an Emergency: Challenges to Criminal Jurisdiction in Constitutional Democracy

In this contribution I address the type of emergency that threatens a state’s monopoly of violence, meaning that the state’s competence to provide citizens with elementary security is challenged. The question is, whether actions taken by the state to ward off these threats (should) fall within the ambit of the criminal law. A central problem is the indeterminacy that is inherent in the state of emergency, implicating that adequate measures as well as constitutional constraints to be imposed on such measures cannot easily be determined in advance. This indeterminacy raises two interrelated issues. Firstly, the issue of whether it makes sense to speak of criminal jurisdiction when the existing jurisdiction is challenged as such. To what extent does the indeterminacy call for inherently unlimited powers of the state, implying there can be no such thing as criminal jurisdiction during a state of emergency? Second—if criminal jurisdiction is not in contradiction with the state of emergency—the issue of what criminal liability could mean in such a state needs to be confronted. To what extent does the indeterminacy inherent in the state of emergency jeopardise criminal liability because such indeterminacy engenders severe legal uncertainty regarding the standards against which the relevant actions are to be judged? Both issues will be discussed from the perspective of constitutional democracy, assuming that what is at stake in times of emergency is both the competence to sustain the monopoly of violence and the possibility to constrain the powers of the state.     

Late Sanskrit Literary Theorists and the Role of Grammar in Focusing the Separateness of Metaphor and Simile

The present paper is focused on the way Vayākara?as and āla?kārikas analysed a specific kind of karmadhāraya compounds, taught in A??ādhyāyī 2.1.56 and 72 and later associated with the upamā- and the rūpaka-figures respectively. On the basis of a fresh interpretation of the relevant grammatical sources, the authors try both to understand how the theorists involved them in their analysis and to reconstruct the several steps of the inquiries realized by the modern scholarship on this topic. Nonetheless their research is targeted on the interpretation of these two Pā?ini rules and they conclude that these rules do not actually target similes and metaphorical identifications, but, on the one hand, A 2.1.55-56 deal with a functional pair of figurative compounds involving an upamāna and an upamita, i.e. a reference standard and something which is benchmarked, and, on the other, A 2.1.72 closes a series of karmadhāraya-rules, aimed at illustrating A 2.1.57. Furthermore, they exclude that Pā?ini in A 2.1.55-56 used the term sāmānya as a tertium comparationis, even though Patañjali had already advanced—but eventually rejected—this interpretation.     

Conciliation Ethics in the Qurʾan

The concept of Conciliation Ethics in the Qur?an is a crucial aspect of Islamic Law: Conciliation features notably in the Qur?anic text which gives rise to Islamic rules and regulations, Conciliation is an important dispute resolution method in an Islamic legal system, and Conciliation-related Qur?anic textual analysis reveals a broad range of legal language and concepts. Traditional studies of Conciliation in the Qur?an have often focussed on the process of ?ul? (Reconciliation) through intermediaries, particularly in marriage and between groups of Muslims, whilst there is a dearth of Western scholarship in this area. Using Classical Arabic tafsīr (exegesis) and Western literature on Conciliation as a general concept, this paper examines holistically and analytically the concept of Conciliation Ethics in the Qur?an, investigating its scope, constituent elements, emphasis and purpose. This paper argues, based on a manual survey of the entire Qur?an, that Conciliation is not limited to isolated contexts or verses where ?ul? is mentioned explicitly. The paper finds that Conciliation is a pervasive concept throughout the hierarchy of social relationships. It is achieved through behaviours such as good conduct (i?sān), attitudes such as ‘Differentiation’ and ‘Externalisation’ and preventative strategies of dispute avoidance, and sometimes includes a contract or Reconciliation process. It is emphasised in the Qur?an through a range of stylistic features and is of fundamental importance in maintaining the fabric of society.     

‘My Eyes Were Open’: Awakened Maternal Identity and Leaving Violent Relationships for the Infant/Children

A qualitative secondary analysis explored stories of mothers (n = 49) who left violent relationships (VRs) through a lens of maternal identity. Constant comparative method identified a theory of Awakened Maternal Identity (AMI) and Leaving VR for the Infant/Children. Mothers described how the VR diminished their maternal identity (DMI). Partners controlled the VR though unrealistic infant care expectations, criticisms of infant care, harsh parenting, and control over mothering decisions. DMI lowered the mother’s capacity to provide emotionally nurturing infant care. Over time, mothers experienced AMI- as their ‘eyes were opened’ they experienced a stronger sense of mothering responsibility, focused more on the infants and children, and eventually prioritized their relationship with the infants and children over the partner. AMI seemed a turning point that led to leaving the VR for the infants/children. Recommendations offered for professionals to foster AMI as potential means to initiate the leaving VRs.     

Transgression and Standard Theories: Contributions Toward Penal Abolition

In this paper I propose a transgression theory and a standard theory toward penal abolition. I argue that given the ubiquity of “crime” in human relationships, to speak of “criminal behavior” as deviant nullifies the concept deviance (abnormal, out of the ordinary, etc.). After demonstrating that empirically the opposite is the case, I argue for a transgression theory (that most human beings regularly act in ways that transgress the norms and laws they establish) and propose a standard theory (that human beings are both maintainers and transgressors of the social orders they establish). My paper challenges the foundational language (constructions) of “criminal justice” logic that ignore the continuity of the past in the present (white supremacy, neocolonialism, racial capitalism, and gendering enslavement), and that fortify discourse and practice from recognizing, eliminating and standing accountable by rectifying centuries of white privilege, heteronormativity, and the oppression of nonwhite bodies.     

Laws that are Made to be Broken

Criminal laws are created to achieve various ends. These include (1) reducing the incidence of wrongdoing, and (2) holding wrongdoers responsible for their wrongs. Some criminal laws are created to further the first of these ends by means of compliance. The second end is to be furthered only if, regrettably, some fail to comply. These criminal laws are made to be followed. Other criminal laws are not created with compliance in mind. Conviction, in these cases, is no regrettable fallback. It is the primary means by which the law is to contribute to ends (1) and (2). Laws of this second kind are made to be broken. My concern in this paper is with the creation of such laws. Section 1 sharpens the contrast drawn above, and considers some arguments for enacting laws that are made to be broken. The following sections develop an argument against. Section 2 introduces what I call the identification principle. It argues that the principle is an implication of the ideal of the rule of law, and that it binds state officials who make, apply and enforce criminal laws. Section 3 argues that when laws are made to be broken, the identification principle is violated. Section 4 concludes.     

Time series robustness checks to test the effects of the 1996 Australian firearm law on cause-specific mortality

Objectives

Many studies utilize time series methods to identify causal effects without accounting for an underlying time trend. We show that accounting for trends changes the conclusions in the study of Chapman et al. (JAMA, 316(3), 291–299, 2016), who evaluated the impact of the Australian firearm law in 1996. We also introduce a new empirical method that tests whether their empirical strategy can actually identify a causal effect that is also useful for panel analyses.

Methods

We use national data from the Australian Bureau of Statistics, assembled in annual counts of: total firearm deaths, firearm suicides, and firearm homicides. These data are used in an independent re-analysis of the impact of the 1996 Australian firearm law that accounts for underlying stochastic trends. We then estimate a series of artificially created interruptions using interrupted times series analysis in a time frame before 1996, to test for changes in the slope of mortality across several years prior to the actual regulatory changes. This tests whether the empirical model produces effects in years other than the year of the intervention, thereby testing if the results can simply be replicated at random using other interruption years.

Results

Controlling for stochastic trends produces less statistical evidence of the impact of the firearm law on firearm mortality than previously reported by Chapman et al. (JAMA, 316(3), 291–299, 2016). Introducing artificial interruptions in 1990 through 1995 produces statistically significant decreases in all firearm-related mortality measures well above the expected type 1 error. Overall, 19 out of the 36 artificial interruption models we tested were found to be statistically significant, suggesting that the empirical model can be implemented in multiple non-intervention years with results similar to the true 1996 interruption year.

Conclusions

Current evidence showing decreases in firearm mortality after the 1996 Australian national firearm law relies on an empirical model that may have limited ability to identify the true effects of the law.