Corruption and Bribery in Islamic Law: Are Islamic Ideals Being Met in Practice?

18 Golden Gate Ann. Surv. Int'l & Comp. L. 171 (Spring 2012)

72 Pages Posted: 22 Sep 2012 Last revised: 11 Mar 2015

See all articles by Mohamed A. Arafa

Mohamed A. Arafa

Cornell University - Law School; Universidade de Brasília (UnB); Alexandria University - Faculty of Law; Indiana University Robert H. McKinney School of Law

Date Written: July 1, 2012

Abstract

Ethical norms, and the institutions underwriting and giving force to them, can widen horizons and choices, enabling individuals to do more things than would have been possible in their absence. Trust and certainty in the integrity of market exchanges and interpersonal dealings is an important social lubricant. In this respect, ethics might be thought of as a pure “public good.” The corollary of this new thinking about ethics is that corruption is corrosive not only because it enables some in society to secure an unfair advantage over others; those engaging in corruption are harming us all by eroding norms and institutions which benefit us all.

Declining morality in public life can set in train a cycle of decline. Insisting upon the maintenance of high standards in all facets of life — private and public — rightfully becomes a cornerstone of good governance. By shedding light on an under-examined system of law, this article makes a necessary contribution to the beginning of a fruitful study in the west of Islamic law. Although the recent literature has paid increasing attention to the problems of corruption and bribery, so far few authors have treated this issue in the context of Islamic law. Scholarly treatment of this issue is therefore urgent, all the more so considering that Islamic law represents a source of law affecting over one billion people living in the world’s 49 majority-Muslim nations.

It is argued that the emerging shift in social scientific thought in viewing corruption from “grease that oils the economic wheel” to a “menace that undermines economic growth” has brought rational understanding of the phenomenon much closer to Islamic doctrine. Where they differ is with respect to remedial action. The western approach focuses on governance and designing appropriate systems and institutions that gear information and incentives toward minimizing opportunities and enticement for corruption. In short, it emphasizes constraints external to the individual. On the other hand, Islam seeks to go beyond such constraints, and also instill in believers a clear “second-order” preference for no corrupt behavior. It recommends developing a firm belief in transcendent accountability, stresses character building through practicing moral virtues and shunning vices. In essence, much of the restraint comes from within through a moral renovation. It is the contention that both emphases are important in eliminating corruption and that the followers of Islam and the West can learn from one another. Recent social scientific thinking lends some support to this reasoning. As ethics can be empowering, as well as making good practical sense “constraining”, since ultimately everyone benefits from the behavioral boundaries that ethics dictate. There is room for both lines of attack upon corruption.

An Islamic model cannot be secured unless we establish a powerful and large state, strong in its economy, social institutions, education, etc.; a nation that produces enough to let its citizens enjoy decent life and free from poverty and corrupt behavior. Furthermore, enlightened religious leaders are supposed to address social problems and raise their voices against injustice, corrupt governments, and red-tape practices. Therefore, corruption is to be tackled by moral education designed to inculcate in believers a clear second-order preference for virtuous behavior, reinforced by legal structures, and administrative systems reflecting and supporting this stance. Equally, however, the significant ethical and moral dimensions to reducing corruption cannot be downplayed either, if only because there are situations where the external constraints confronting officials are weak and self-restraint is needed. By illuminating a body of law often overlooked in western literature and describing its impact, or lack thereof, on a major area of study, this article contributes to the scholarly study of corruption.

Keywords: Ethics, Corruption, Bribery, Islamic Law, Islamic Criminal Law, International Bribery, Attempted Bribery, Confession, Crime, Moral Education, Social Liability, Impunity, Punishment, Offender, Jail, Flagellation

Suggested Citation

Arafa, Mohamed A., Corruption and Bribery in Islamic Law: Are Islamic Ideals Being Met in Practice? (July 1, 2012). 18 Golden Gate Ann. Surv. Int'l & Comp. L. 171 (Spring 2012) , Available at SSRN: https://ssrn.com/abstract=2149982

Mohamed A. Arafa (Contact Author)

Cornell University - Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Universidade de Brasília (UnB) ( email )

Campus Universitário Darcy Ribeiro
Asa Norte
Brasília, Distrito Federal 70910-900
Brazil

Alexandria University - Faculty of Law ( email )

Moustafa Mousharafa Street
Soter
Alexandria
Egypt

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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