19. Islamic tort law Abdul Basir bin Mohamad 1. INTRODUCTION Islamic tort law is not too different in general from Western tort law in its scope, liability and discussion. It is a body of law concerned with civil injury or wrong. Civil injury means any injury, for which a legal action is brought before a civil court by the injured party himself, not by the state. Any injury or wrong which is designed to punish the defendant and for which the legal action or legal proceedings are taken and conducted in the name of the state, is called a crime. Islamic tort law recognizes misdeeds or wrongs committed against individual mem- bers of the public, while crime is considered in terms of a violation of the public interest as a whole. In more elaborate terms, it could be said that in the case of violation of the public interest, the ruler, or as commonly referred to in the modern time by current lawyers – the state – has the absolute power to prosecute and inflict the punishment upon the criminal on behalf of the public. These cases in Islamic law are named as divine prescribed punishments (hudud ). 1 They are categorically stipulated by the verses of the Qur’an (the Book of God) and the texts of the traditions of the Prophet, and they are called and recorded, in the writings of the Muslim jurists, as the fixed punishments. In these kinds of punishment, no remission, emendation or reconciliation can be granted by anyone, not even by the state or the ruler when the case has been brought to the notice of the authority. For instance, in the case of theft (one of the hudud cases), the person whose property is stolen cannot free the thief from the divine punishment of amputation of his hand – ‘if all the elements of the crime are proven’. Even after the owner of the property has collected the stolen property from the thief, the punishment for theft remains the public right ordained by the Law-Giver, God. Regarding the cases of tort against a person (private rights), the injured or the relative of a dead person has the full power to sue and bring the case to court to claim retaliation (qisas). Besides, he or his relative has the right to go into reconciliation with the defendant or wrongdoer, or to renounce the right to retaliation (which could be a possible punishment) or death with blood money (diyah) or compensation (arsh) or discretionary punishment (hukumat al-‘adl). However, in the case of transgression against a man’s property, the man has only the option of claiming compensation or remission. In Islamic law, the criminal cases have been analysed and discussed by the Muslim scholars in their manual texts in the topic of hudud (pl. of hadd, i.e. limits/fixed 1 The cases under divine prescribed punishments or fixed punishments are adultery, theft, robbery, drinking wine, false accusation of adultery, waging war against the Muslim ruler and apostasy. 441 Abdul Basir bin Mohamad - 9781784718138 Downloaded from Elgar Online at 06/17/2019 11:25:44AM via free access