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STRICT LIABILITY IN ISLAMIC LAW OF TORT : CRITICAL APPROACH
Transcript of STRICT LIABILITY IN ISLAMIC LAW OF TORT : CRITICAL APPROACH
Questions to ponder pertaining this matter??
3 main question to be discussed
We know strict liability illustrates the principle in which neither negligence nor intention plays any part. But still, why intention keep mentioning in the Islamic point of view?
Do we need to hold whatever has been define by the ulama about strict liability. Is there any way strict liability can be seen in a bigger perspective comprises of all aspect? Open for research.
Do you really think English Common law of tort exactly the same with Islamic law of tort? Did Islam follow English common law of tort or is it the either way around? Particularly in the issue of strict liability
Mohd Shaher Ahmad Fuad
Mohd Shameer b. Osman
Iman Al Husna Bt Mohd Zafarullah
Nurul Natasya bt Norrizwan
Anna Salwa Bt Sharani
Nur Hafizah Bt Aspar
The discussion covers
3 main arguments
Hadeeth Prophet Muhammad
Door of Taubah
Authority : Hadeeth
"Verily actions are by intentions, and for every person is what he intended”
According to this hadeeth, Maiz went to the Prophet and asked to be purified from the sin of committing adultery. The Prophet advised him to repent and ask Allah for forgiveness, then sent him away.
The Prophet tried again and asked him if he was perhaps drunk. Maiz denied it.
Some of the Prophet’s companions concluded that his confession as well as his request to die were enough to show his repentance.
Authority : Al- Quran
“But if one is driven by necessity, neither coveting it nor exceeding his immediate need- no sin shall be upon him. God is indeed Forgiving, most Merciful”
According to Ibn Qudamah in Al-Mughni, there is no expiation in wilful murder but the same is allowed in cases of homicide resembling murder and homicide by mistake.
“Oh ye who believe! Retaliation is prescribed for you in the matter of the murdered, the free man for the free man, the slave for the slave, the female for the female. And for him who is forgiven somewhat by his brother prosecution according to usage and payment unto him in kindness. This is an alleviation and a mercy from your Lord. He who transgressed after this will have a painful doom. And there is life for you in retaliation, oh men of understanding that ye may ward off (evil)”.
Do we need to hold whatever has been define by the ulama about strict liability. Is there any way strict liability can be seen in a bigger perspective comprises of all aspect?
Since this is not an issue of akidah, then we can still do research and discover more from this field.
An opinion arise in providing the real strict liability in Islamic point of view. in Islamic law of tort, it is include the matter of jinayat. But then again, If we only follow what has been written by the ulama and follow the case of Ryland vs Fletcher, the scope would be narrower. The reality in Islamic law, the scope is very wide.
Do you really think english common law of tort exactly the same with islamic law of tort? Did islam follow english common law of tort or is it the either way around? Particularly in the issue of strict liability.
Islam is a perfect religion, syumul or in other words it is comprises of all aspect of life of humankind in this earth.
However, it is a mistake when we try to compare islamic law with English common in a situation where we used English common law as a base of our comparison, not Islamic law. In English common law, since it is man-made law, thus the principle emerged a bit late compared to Islamic law.
One of the factor is that the transition of time, during the time of prophet and khulafa, there is no such term as strict liability.