THE CRIMINAL RESPONSIBILITY IN KLEPTOMANIA AND THE CONSEQUENCES OF THEFT IN ISLAMIC PENAL LAW

Abstract

Altough an assessment of kleptomania within the frame of Islamic penal code seems able to be made by disregarding the pathological side of it, a precise assessment requires its consideration. Since kleptomania is a modern disorder it is neither mentioned in classical fiqh literature nor in contemporary authoritative sources, just few current studies discussing mental disorders' results in Islamic penal law like Muhammad Naim Yasin's article "Eseru'l-Amradhi'n-Nafsiyyati va'l-Aqliyyeti ala'l-Mes'uliyyeti'l-Cina'iyyeti" and Hulud binti Abdurrahman Muhayyaza''s doctoral dissertion "Ahqamu'l-Meridi'n-Nefsi fi'l-Fiqhi'l-Islami" give place to the issue ,nevertheless very limited. In Islamic penal law the issue of "criminal responsibility" is discussed under the general title of "awaridh al-ahliyyah. Contemporary muslim scholars like 'Udeh, Behnesi and Abu Zahra address the subject privately with the title "criminal responsibility". Like their predecessors they stipulate the presence of comprehension (ability to distinguish right and wrong) and election for responsibility "taklif". They also accept the absence of criminal responsibility in case of mental disorders but emphasize the difference of impulse control disorders due to the presence of sanity and election. As to a kleptomaniac's criminal responsibility and the results of his/her action, regarding its pathological side and comparing it with the conditions of theft (sarikah) a conclusion could be reached as such: In kleptomania comprehension and election are available thus the person is criminally responsible according to Islamic criminal law. The assertion of irresistance of stealing becomes unsound with the information that they refrain from action in the presence of a guard or police. It shows both the presence of comprehension and ability of resistance in a kleptomaniac, and furthermore it proofs the deterrant function of punishment. But the incapability of self control because of an alleged disorder brings suspicion to the case and the appointed severest sanction becomes ta'zir, not hadd. Ta'zir can be applied in different forms each targeting the offenders rehabilitation or aiming the compensation of the victim's loss. Imprisonment, physical punishments, banning from shopping, dismission could be some examples of it, surely with the psychological/psychiatric treatment accompanying each of them. An open door might be left for a total criminal irresponsibility if the diagnosis is made by a Muslim specialist and only with a conditioned treatment in a center under the control of the court. As to the victim's compensation, the kleptomaniac gives the goods back if it is still present and no severe damage is present to it. In case of impossibility whether he/she has to buy an identical one for his/her victim or must pay the stolen item's price back; each situation is determined according to the goods' kind as misli or qiyami.