Sociology of Smuggling Goods: The Support of Punishment in Fiqh and Law

Punishment, as a "social institution" rather than a "historical and static abstract structure", being influenced by different social conditions and environments, takes some different forms. Yet, the study and analysis of the social logic of enacting criminal laws, especially the smuggling of goods, is a problem which has little been focused on in Iranian law, and thus may lead to the abandonment of laws in the existing social structures of the society. In this regard, it seems that contemplation on the basis of criminalization due to the evolution of the economic conditions of a society (type of economic system, economic policy of the state and economic conditions), will lead to reviewing the fiqh and penal code of smuggling. The necessity of doing research on this issue is that the economic analysis of economic crimes and their penalties will have a beneficial preventing effect on the decline of a law. Such an economic analysis, however, will cause an effective legislation to prevent crime along with eliminating its effects. For this purpose, the economic crime of smuggling and its penalizing pattern in fiqh and lawmaking should be evaluated only from the perspective of the economic sociology analysis, because economic analysis in the realization of social justice, especially the distributive justice arising from the law and crime, the law efficiency and crime prevention all enjoy some objective criteria, which come to rescue faqihs and lawyers being trapped in multiple and vague legal issues. Based on a descriptive-analytic approach, and with the assumption that the social logic is effective in criminalizing, and penalizing the legal and juridical smuggling of goods, the present study analyzes economic factors and also other factors influencing on determining punishment such as the economics of punishment and the economic conditions. It can be concluded that in determination of punishment for smuggling goods, one must pay attention to the four vital principles of fiqh in criminalization and determination of punishment, namely "damages", " reliefs ", "proportion" and "economic power."