LAB 4053 ISLAMIC LAW OF TORT

Group Assignment
“Defence: Necessity”

MUHAMMAD ’ARIF BIN MUHAMAD ZAMANI 1141955

MUHAMMAD KHAIRUL ARIFF BIN RUSLAN 1141956

PREPARED FOR: MADAM SURAIYA BINTI OSMAN

Definition of the term under English and Islamic law

Under the English law, defence of necessity only arises when an accused infringed the law
but claim that his act is necessary in order to prevent other harm if not for his act. The defence of
necessity is different from the defences of self-defence or defence of property as the injury or
damage suffered by the plaintiff is not caused by initial wrongful act on the part of the plaintiff.
The plaintiff is usually an innocent party. Plus, the defendant’s conduct may not necessarily be
for his own protection or for the protection of his property. It may be for the public good or other
people. In English law also, there’s differences for the defence of necessity between tort and
criminal cases.

In Islam, necessity defined as ‘dharurah’, whereby it has two types of definition, linguistic
meaning and juristic technical term. Necessity (dharara) in the Arabic language means:
1- Dire need for something (shiddat al-hajah).
2- The state in which one is being forced to do something
3- The intensity of dharar which is injury or harm.

This linguistic meaning is an essential part of the juristic technical definition of necessity.

Under the juristic technical term, 'Abd al-Karim Zaydan, who has written an article about
necessity, thinks the more comprehensive definition of necessity is that which was suggested by
'Ali Hayder in his famous book Durar al-Hukkam: Necessity, according to him, is a compelling
situation where one must commit an illegal act. M. al-Zarqa defined necessity as; the state which
would, if not satisfied, result in real danger, such as a total compulsion or the fear of death in
case of starvation.

In Islamic law of tort, the defense of necessity seems to be similar as to the Islamic criminal law,
depends on the situation.

Elements

Under English law of tort, there is no clear elements of necessity as tort is not written in statutes
but based on common law. However, the court usually looks for three things in the defence of
necessity;

1. Reasonableness
 Whether the action taken is necessary or reasonable depends on the facts and
circumstances in each case. One of the factors taken into consideration is whether life
is being threatened in the situation.
2. In good faith
The definition of good faith can be borrowed from the penal code definition, as things
done or believed in good faith which are done or believed with due care and attention.
3. For the purpose of preventing or avoiding other harm to person or property
The action taken as necessity must be to avoid greater harm. Here, the harm to be
avoided must one that is so imminent as to justify or excuse the doing of the act.

Under Islamic law also, there are also disagreements on the elements of necessity or
dharurah as the term also being defined differently by scholars. However, it appears that there
was in every attempt which has been mentioned certain elements to be included in every
definition of necessity. Those elements are:

1. There should be a compelling situation.

2. There should be a genuine fear of death or of severe injury.
3. Such an injury should be directed to one of the five fundamentals (al- daruriyat al-
khams).
4. Committing an illegal act is the only way out of such a situation

Quranic verses, Hadiths, or legal maxim

Quranic verses
In the Qur’an, there are numerous verses which explicitly or implicitly tackle this topic. The
word injury (dharar) has been mentioned, on different occasions and in different forms, seventy
times in the Qur'an. Among them are;

" He hath only forbidden you dead meat, and blood, and the flesh of swine, and that on which
any other name hath been invoked besides that of God. But if one is forced by necessity, without
wilful disobedience, nor transgressing due limits, - then is one guiltless. For God is Oft-forgiving
Most Merciful. " (2:173)

" Say: 'I find not in the message received by me by inspiration any (meat) forbidden to be eaten
by one who wishes to eat it, unless it be dead meat, or blood poured forth, or the flesh of swine-
for it is an abomination -, or, what is impious, (meat) on which a name has been invoked, other
than God's '. But (even so), if a person is forced by necessity, without wilful disobedience, nor
transgressing due limits, - thy Lord is Oft-forgiving, Most Merciful. " (6:145)

" Anyone who, after accepting faith in God, utters Unbelief, - except under compulsion, his heart
remaining firm in Faith - but such as open their breast to Unbelief, on them is Wrath from God,
and theirs will be a dreadful Penalty. " (16:106)

The majority of these verses have repeated certain types of prohibited thing such as dead meat,
blood, the flesh of swine and any food over which the name of other than Allah has been
invoked.

Hadiths
As to the Traditions of the Prophet, there are numerous traditions that have tackled the different
aspects of necessity. They compose an important source for forming the principle of necessity.
Among the Hadiths are;

“Abu Waqid al-Laythi said: " I said to the Prophet: Messenger of Allah, we are living in a land
where we are subjected to hunger: what is permissible for us from dead animals? The Prophet
said: If you did not drink milk in the morning and did not drink milk in the evening and did not
store dates, then it is up to you to eat."

" The Apostle of Allah was asked about hanging fruit. He replied: If a needy person takes some
and does not take a supply away in his garment, he is not to be blamed."

"A person came to the Messenger of Allah and asked: What do you think if a man comes to me in
order to appropriate my possession? The Prophet said: Don't surrender your possession to him.
The inquirer asked: If he fights me? The Prophet remarked: Then fight (with him). The inquirer
then asked: What do you think if I am killed? The Prophet observed: You would be a martyr: The
inquirer said: What do you think of him, Messenger of Allah, if I kill him. The Prophet said: He
would be in the Fire. "

These verses and traditions of the Prophet as well as others have laid down the foundations of the
principle of necessity. Islamic jurists have induced from this evidence a number of juristic
maxims which gather together and give order to the various legal rulings regarding necessity.

Legal Maxims
There are several legal maxims, or “qawaid fiqhiyyah” with regard the defence of necessity.
These maxims are originated from the numerous guidelines and principles laid down by the
verses of Quran and Hadith. Among them are:

1) Hardship Begets Facility (Al-Mashaqqah Tajlibu Al-Taysir):

This maxim is one of the maxims with the widest application in Islamic law since it includes a
wide range of Islamic legal principles and rules. All Islamic jurists have agreed on its validity
and importance and it has been regarded as a fundamental maxim. The general meaning of this
maxim is that difficulty and hardship are regarded as a valid reason for facility and mitigation.
And in the time of constraints and urgency, ease and latitude must be shown. It is understood that
the normal rules of law have been designed to be general in nature and thus to consider all
situations and all individuals and not merely particular situations or particular persons. However,
in certain circumstances, the meticulous adherence to law turns into injury and injustice and it
becomes necessary to mitigate people's difficulty and to disregard rules in certain exceptional
circumstances if their application were to result in injury and hardship. The basic intention of this
maxim is to ease difficulty and hardship whenever it exists, and to limit the legal liability of the
people who are legally responsible according to their ability. That indicates there is nothing in
the shara` which cannot be performed, or which overreaches the limited capacity of the feeble
human being.

2) Injury Is to Be Repaired: (Al-Darar Yuzal)

This maxim is a fundamental maxim which deals with prohibiting and preventing injury. It
negates the legitimacy of inflicting injury on anybody. It also aims to remove any existing injury
since such an injury is a transgression which should not be allowed or inflicted. This maxim is
supported explicitly by the foregoing saying of the Prophet " la darar wa la dirar” which means
no injury shall be inflicted or reciprocated.

3) Necessity Permits Prohibited Things (Al-Darurat Tubih Al-Mahzurat)

This maxim has a strong link with the two previous fundamental maxims. Thus, some jurists
have regarded it as subordinate to the first one and have held that since it explicitly allows
making a concession because of the state of necessity and it gives permission to ease hardship, it
should, therefore, be subordinate to the maxim that deals with all the varieties of concessions and
mitigation, that is "hardship begets facility."

Application
The defence of necessity used in Islamic law of tort when there are imminent greater harms
which are within one of the five fundamentals (al- daruriyat al-khams), and to avoid this harm,
illegal action must be done. However, there are certain limits for this action. For example, the act
must only be done not more than what it is minimum necessary for the harm to be lifted.
Moreover, it also must not create similar or greater harm to another as consequences of this
defence.

Differences between English and Islamic concept

It seems that there are similarities between the English and Islamic law of tort regarding the
elements of the defense of necessity; whereby, in certain circumstances, it is necessary to do
illegal actions in order to prevent a greater harm. However, the difference between the two may
mostly regarding the definition of “illegal actions” and “greater harm”. In Islam, illegal things
and actions are what as has been explained by the Quran and Hadith. The list may be longer than
what has been stated by the English law, as the prohibitions by Allah is more than what has been
created by people called human rights and fundamental liberties. For example, eating pork is
prohibited by Islam, but not by the English law. Moreover, the greater harm that is necessary to
be avoided only when the harm come under the five fundamentals and there is no legal way to do
it.

Reported English cases

1. Leigh v. Gladstone (1909) 26 TLR 139

The plaintiff, a women’s right activist was arrested and imprisoned. She went on a hunger
strike and in order to save her life, the prison warden force-fed her. The plaintiff claimed
for battery. The court held that the prison officers may raise the defence of private
necessity as their intervention was lawful in order to protect her from her own folly.

2. Whalley v Lanchashire and Yorkshire Rly Co (1884) 13 QBD 131

The defendant’s premises were flooded due to an unprecedented and heavy rainfall. They
then deliberately caused the water to flow away which flooded the plaintiff’s land. The
defendants were held liable, for there is a difference between ‘protecting oneself from an
 injury not yet suffered and getting rid of the consequences of an injury which has been
incurred’.

Analysis

In the case of Leigh v Gladstone, the defence of necessity under the English law is allowed
as it is accordance with elements of necessity; which is in good faith, to prevent greater harm
and reasonable. Even though this defence may no longer be allowed in the present time as
suicide is no longer considered as crime or ‘harm’ under the English law, in Malaysia,
attempting to suicide is still a crime. Thus, the defendant’s action in preventing the plaintiff
from death, is a defence of intentional tort.

Under Islamic law of tort, suicide is prohibited and considered as a major sin. Moreover,
protection of lives is under the five essentials of Islam. Thus, preventing it from happen can
be considered as defence of necessity. The outcome of this case, if it was tried with Islamic
law, is the same.

For the case of Whalley v Lanchashire and Yorkshire Rly Co, the defendant’s land is
already flooded, and he diverts the water onto his neighbour’s land. Thus, the defence of
necessity is not accepted. Under the English law, a person is entitled to take reasonable
preventive measures to protect the safety of his own property. Thus, a landowner may erect
barricades his own against probable flooding, even it is foreseeable that his neighbour’s land
will be flooded.

Under the Islamic law of tort, an injury cannot be removed by the commission of a similar
injury nor by a greater injury. It is not allowed, for instance, for a person who is compelled
by starvation to take the food of another facing the same problem, since he would remove his
injury by causing the same injury to another. Similarly, if someone was being forced to kill
another, he is not allowed to do so, regardless of the extent of the compulsion, since his life is
equal to the life of others and it is not preferred to another's life. Thus, the outcome of this
case, if it was tried with Islamic law, is the same.
Conclusion

In conclusion, Islam recognised the defence of necessity to lift hardships and protection of the
five fundamentals (al- daruriyat al-khams), similar as the English law. However, the scope of this
defense may be different in terms of the definition of what is illegal actions and the harm to be
prevented. Hence, in certain circumstances, it is considered as defense in Islamic law but not in
English law, vice versa.