Hakimah Yaacob is an Associate Researcher at the Islamic Banking Unit,
International Shari'ah Research Academy (ISRA) for Islamic Finance.She holds a
Bachelor of Laws (Hons), Bachelor of Syariah (Hons), a Master in Comparative
Laws, from International Islamic University Malaysia and a diploma from Tokiwa
International Institute, Japan. Previous positions held include Head of Law
Reform & International Treaties, SUHAKAM, legal practitioner, as well as being
the Drafter of International Standard Organisation 26000 on social
responsibility. She has published many articles on alternative dispute
resolution (ADR) in Islamic finance including arbitration, mediation and hybrid
Laws that directly addressed commercial behaviour were an important part of many
ancient legal codes. The Code of Hammurabi dictated the death penalty for many
crimes, including theft and fraudulent sale of drink. Law 265 states "if a
herdsman, to whose care cattle or sheep have been entrusted, be guilty of fraud
and make false returns of the natural increase, or sell them for money, then
shall he be convicted and pay the owner ten times the loss". The Twelve Tables
of the Roman Republic stated: "If a patron shall defraud his client, he must be
solemnly forfeited (killed)". Art 13:3 of Malacca Canon Law punished the
offender of selling royal command by committing fraud with scalping the head or
splitting the tongue. With the passage of time the study of criminal behaviour
has become a science called criminology or offenderology. Only in the 1940's did
the world begin to include the victim as a subject for study. This widening of
scope resulted from the realization that punishment by itself is not sufficient
to deter crime. Since the victim is the other party in any crime, the need was
felt to include victims in its study. The aim of this article is to discuss both
criminology and victimology from the perspective of Islamic finance.
The term "criminology" derives from Latin word "crimen", which means "crime",
and the Greek word "logos", which means "science". Criminology is an independent
and autonomous social science that studies crime, forms of criminal behavior,
the causes of crime, the definition of criminality, and the societal reaction to
criminal activity. Criminology is closer to psychology because it studies the
minds and behaviors of criminals as opposed to their criminal actions.
Criminologists study a multitude of issues related to crime and the law. Crime
is a social phenomenon that is defined by the law, for laws regulate social
behavior in a modern society.
The word "victimology" is derived from two words: "victima", the Latin word for
victim, and "logos" from the Greek language. Logos is a word with various
meanings and is often translated into English as "word" but can also mean
thought, notion, speech, reason, proportion, principle, standard, or logic. It
has varied uses in the fields of philosophy, analytical psychology, rhetoric and
religion. However, logos in the term "victimology" denotes the abstract and
conceptual understanding of the victim. The "-ology" suffix in the word "victimology"
means "the study of". Thus victimology literally means "the theoretical
(abstract) study of the victim". Ideally, it should discuss the central issues
Criminology would not be complete without victimology. The reason a criminal
commits a crime must be linked to the reason for the existence of a victim. This
is due to the fact that crime (in particular financial crime) will result in
victimisation of an individual. An offender is motivated to commit a crime when
there is an opportunity to do so, a suitable target (victim), and lack of a
capable guardian and a place manager (Lawrence Cohen & Marcus Felson). Financial
crime can be broadly categorised into documentation fraud (security fraud, hedge
fund fraud), electronic fraud (phishing, emails, sms and telephone, personal
fraud (identity theft, ATM, credit card, debit card) and money laundering (Sirat,
S). Types of fraud involving cards can be categorised into counterfeit
(duplicating legitimate cards which are then use fraudulently), stolen or lost
card (unauthorized usage of stolen or lost card), card not present (unauthorized
usage of card information for activities over the internet, phone or mail) and
identity theft (obtaining personal info of another person for the purpose of
assuming that person's identity to engage in fraudulent activities). The stolen
identity will be used for the following purposes;
Source: Federal Trade Commission, quoted from Sirat, S.
These are only limited examples of fraud cases. Victims of financial fraud
may be found in many sectors: banking, state and national government, investors,
traders and others. The Seventh United Nations Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power, A/RES/40/34 defines
"victims" as "persons who, individually or collectively, have suffered harm,
including physical injury and mental injury, emotional suffering, economic loss
or substantial impairment of their fundamental rights, through acts or omissions
that are in violation of criminal laws operative within member states, including
those laws proscribing criminal abuse of power". The Declaration goes on to
state: "The provisions contained herein shall be applicable to all, without
distinction of any kind, such as race, colour, sex, age, language, religion,
nationality, political or other opinion, cultural beliefs or practices,
property, birth or family status, ethnic or social origin, and disability."
In essence, victims can be divided into five categories:
i. Primary victims are directly affected by an offence (investor).
ii. Secondary victims are people that have some relationship with the primary
victim and are emotionally and/or financially dependent on them (e.g. a child,
parent or spouse).
iii. Tertiary victims are persons whose lifestyles have been inconvenienced by
excessive fear and those persons (e.g., consumers and tax-payers) who have to
bear the cost to society of crime. In this sense, society itself is a victim of
iv. Witnesses might also be affected by crime, yet they are rarely considered
v. Entities (e.g. bank, GLC, incorporation, state) can also be victims.
Enron's case has become a symbol of corruption, greed, and corporate misconduct
in the twenty-first century. Victims from the case include investors, banks,
states, etc. A valuable lesson, however, has emerged from the ruins of Enron's
legacy: without government regulation, a company with greedy executives at the
helm will always seek to maximize profit, and will sometimes resort to unethical
business practices (such as insider trading and accounting fraud) to maintain
artificially high stock prices. The charges against Enron executives included
bank fraud, securities fraud, wire fraud, money laundering, conspiracy, and
insider trading. What lessons can be gleaned from Enron's sudden collapse and
the unethical business practices committed by the insiders? Financial criminals
are opportunists who will strike when there is an opportunity and commercial
gain to them. The risk of fraud is the same in a conventional or an Islamic
financial institution. Fraud awareness and risk management is a key in avoiding
financial frauds (Sirat, S).
Surah al-Mutaffifin (83:1-33) condemns all types of fraud. "Woe to those that
deal in fraud. Those who when they have to receive by measure from men, exact
full measure. But when they have to give by measure of weight to men, give less
than due. Do they not think that they will be called to account? On a mighty
day, a day when all mankind will stand before the Lord of the world? Nay! Surely
the record of the wicked is preserved in Sijjin...". Fraud in this verse not
only covers giving short measure or short weight but also fraud in commercial
dealing. It prohibits any type of tadlis (swindling) and giving less than what
is due from you, whether you expect or wish to receive full consideration. There
is no fixed Shari'ah penalty (hadd) for fraud; rather, it falls under ta'zir, a
discretionary punishment determined by a judge or the authority. It may be
anything from a social boycott up until the death sentence.
As long as no oppression, deceit, hoarding or cheating is involved, every Muslim
is encouraged to do trade and business. Allah's Messenger (peace be upon him)
said, "If the two parties speak the truth and make [all matters] clear, their
transaction shall be blessed, but if they conceal and tell a lie, the blessing
of their transaction shall be obliterated" [Al-Bukhari, Ch. 34, hadith 19].
Financial losses to the state or victims (corporation, institution or
individual) from financial deals are known as darar mali. Darar mali covers
financial expenses in terms of financial and property loss. It also covers
damages suffered as a result of crime. Neither financial costs nor economic
costs of crime are easy to define or measure. For example, the economic costs of
crime prevention can include security hardware, environmental design and various
lifestyle measures. Estimates from the security industry, therefore, must
underestimate total prevention costs; yet, by its very nature, the extent of the
underestimation is indeterminate. Long-term and indirect costs of crime are
often particularly difficult to define. For example, serious victimisation which
causes severe emotional stress can in turn affect employability and, therefore,
career earnings. These types of costs can be seen to have economic "multiplier
effects" in which the victims' families, relatives, business associates and even
whole communities also suffer losses.
Apart from darar mali, financial crime involves darar ma'nawi, damage or injury
caused to a person's reputation ('ird) or dignity (sharaf) by subjecting him to
slander and ridicule, defamation, insult and abuse, causing the victim emotional
pain or stress and apprehension, which will ultimately affect his body even
though there are no apparent physical marks. The injury is more abstract in
nature. It involves trauma and mental injury, and is more similar to
psychological disturbance. It is submitted that compensation for darar ma'nawi
should be decided by an expert. This is due to the fact that many costs and
bills need to be borne by the victim in order to get through the trauma and
psychological blow caused by the crime. This type of crime may also come as a
result of appalling treatment, discrimination, rude manner and even a beating
which does not leave any visible permanent marks on the victim's body.
Due to the absence of physical marks apparent to the human eye, it is termed as
moral or nonphysical damage, as distinct from physical injury or loss. Some
jurists allow the coverage of injuries even as to pain and suffering. This is
based on the maxim "la darara wa la dirar" ([There should be] no infliction of
harm and no reciprocation of harm). Some jurists like al-Balqini argue that the
amount of compensation will be decided by the judge to show that the wrongful
act can never be free from any legal consequences.
Darar mustaqbal covers the future loss of the victims. It can be interpreted as
losing income or losing the breadwinner in the family as a result of crime. The
crime may also incapacitate the victim and cause them to lose their job. In the
case of financial fraud victims, the future loss may cover the future
possibility of losing job, savings, identity risk, education, disruption, etc.
The Shari'ah has given rights to victims of crime. Trade in all forms must be
clean and honest. If one carries it out according to the guidance of the Qur'an
and Sunnah, one will see Allah's blessings even though one may not be able to
amass fabulous wealth. Indeed nine parts of ten of recommended livelihood lies
in trade and commerce. It is hoped that in dealing with financial fraud,
legislation and law enforcement ignore its victims. Alternatively, we may begin
to look at restorative justice being applied to both criminals and victims,
rather than punitive justice, which merely considers the criminal.
 Muqaddam al-Said 1985, al-Ta'widan-dharār al-ma'nawi fi al-msu'liyyah al-madaniyyah,
dirasah muqaranah, Bayrūt, Dār al-Hadathat, p 76.
i. Al-Sharbini al-Khatib, 1950. Mughni al-Muhtaj, Beirut: Dar Ihya al-Turath
al-'Arabi. Vol. 4, pp. 78-79.
ii. Kirchhoff, G.F. What is victimology? Tokiwa International Victimology
Institute Monographs, Series No 1, Tokyo: Seibundo, 2005, vol. p. 68. Refer also
to Kirchhoff, GF on Perspectives on victimology, the science, the history, the
presence, Tokyo: Seibundo, 2006, vol. 3, p. 42.
iii. Kirchhoff, G.F. what is victimology? p. 42.
iv. Liddell, HG, Scott, R, and Jones, HS. Greek-English Lexicon. Perseus Digital
Library Project. Ed. Crane, GR. Tufts University. Retrieved 7th of September
2008, at 6pm. See
v. See also Al-Jundi,Muhammad al-Shahat, Jarimat Ightisab al-Inath fi al-Fiqh
al-Islami Muqaran bil-Qānun al-Wad'i. Cairo: Dar al-Nahdah al-'Arabiyyah. p. 54.
vi. Strang, Heather. Repair or Revenge, Victims and Restorative Justice,
Clarendon Press, Oxford, 2002, p. 28.
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