Nervous Shock: Is it Available in The Islamic Law of Tort?

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Keywords: Nervous shock, English law, Islamic law, tort, tortuous liability, liability, qisas, diya, ġurra, ‘aqila, injury, death, ta‘addi, fright, shock, damages, mental stress, psychiatric damage

Abstract

Abdul Basir bin Mohamad[1]

Abstract:

As we know from the discussions amongst Muslim jurists in their writings, they normally highlight the law of qisas and diya as well as ta‘zir for dealing with cases of death and injury resulting from physical tort such as beating, punching, whipping, kicking, slashing, stabbing, snapping, etc. But a question may arise as to death or injury resulting from non-physical or immaterial torts or, in current legal terminology, nervous shock. Could the case be settled by Islamic law? Nervous shock can also cause mental illness, mental retardation, morbid depression, mental shock, or, in modern terms, psychiatric damage or psychiatric illness, and in that way can also cause someone to suffer a physical injury or death. To resolve this, we have to refer to kinds of law as a yardstick to measure the tortuous liability. It surely falls under human law, even though it is combined with divine law, but human law prevails here. The Muslim jurists have exemplified this law by relating it to qisas and diya in the case of punishment for murder, injury, and wounding. As such, the cases of nervous shock are certainly included in the discussion of qisas and diya in general. In the first part of this paper the discussion on nervous shock focuses on the English law of tort and is then followed by the exploration in Islamic law of tort. As we know, the rule of nervous shock has been practiced and applied intensively in English law over a long period of time, and at the same time the discussion clearly shows that the rule of nervous shock appears in Islam and is not alien to the Islamic law of tort.

 

[1]     Abdul Basir bin Mohamad is Professor in Comparative Tort Law, at the Department of Shariah, Faculty of Islamic Studies, National University of Malaysia, Bangi, Selangor, Malaysia.

Published
2011-01-13