General Principles of Liability
Section 3.1 Offense Element
Any Offense Consists of Three Elements: Legality Element (Rukn shari’), Physical Element and Mental Element.
Section 3.2 The Legality Element
The legality element is an indispensable requirement in every offense. The legality element affirms that there is no crime and no punishment without a law. The Legality element consists of a defining law (hukm taklifi) and declaratory law (hukm wad’I).
(1) The defining law (hukm taklifi) is the law that permits, encourages, commands, detests or prohibits an act: There is no crime unless the law explicitly commands performing an act or refraining from committing an act.
(2) The declaratory law (hukm wad’i) is the law which declares the purpose(s), the requirement(s) or preclusions for the punishment: There is no punishment unless its purpose(s) and requirement(s) are present and preclusions are lacking.
Section 3.3 The Physical Element
The physical element requires that the act must be voluntary and blameworthy.
(1) Voluntariness:
(a) A person is not guilty of an offense unless he acts voluntarily or fails to act (when there is a legal duty to act). The act can be involuntary in a variety of situations including bodily movement during unconsciousness, automatism or a reflex.
(b) Involuntariness precludes the punishment but does not preclude financial compensation “Diya”.
(c) Lack of voluntariness is not a defense if the actor’s involuntariness stems from his recklessness.
(2) Blameworthiness:
(a) The act or omission commanded by law must be possible.
(b) The actor is capable of acting or refraining from acting according to law.
Section 3.4 Knowledge as a Basis for Culpability
As a general rule, knowledge of the prohibitory norm is an indispensable requirement of every offense. A punishment is warranted only if the actor is aware of the prohibition(s). Lack of knowledge of the prohibitory norm is not an excuse if acquiring such knowledge is attainable. However, lack of knowledge of the prohibition- if acquiring such knowledge is attainable- might be excusable in unusual and extraordinary circumstances.
Section 3.5 The Mental Element: Actor’s Culpable State of Mind
(1) Intentional conduct in all offenses excluding homicide and causing bodily harm means that the actor had intention to do the prohibited act.
(2) Intentional conduct in homicide and bodily harm means that the actor had the intention to do the prohibited act in order to achieve the specific consequence of death or bodily harm.
(3) Quasi-intentional conduct:
(a) In homicide, this occurs when an actor intends to cause harm with no intent to kill but the death occurs because of the actor’s act.
(b) In bodily harm, this occurs when an actor intends to cause harm but did not desire the particular bodily harm that occurred because of his action.
(c) Quasi-intentional conduct is less culpable than intentional conduct. There is no death penalty for quasi-intentional conduct.
(d) Quasi-intentional conduct exists only in homicide and bodily harm offenses.
(4) Mistaken conduct.
Mistaken conduct occurs when the actor intended to do an act, without intention to violate the prohibitory norm, but a harm occurred because of the actor’s recklessness or negligence.
(5) Quasi-mistaken conduct.
(a) Quasi-mistaken conduct occurs when the actor did not intend to do an act, and did not intend to violate the prohibitory norm but a harm occurred because of the actor’s recklessness or negligence.
(b) Quasi-mistaken conduct is less culpable than mistaken conduct because in mistaken conduct the actor intended to act and the harm occurred because of his recklessness or negligence while in Quasi-mistaken conduct, the actor did not intend to act though the harm occurred because of his recklessness or negligence.
(6) Criminal liability in intentional and Quasi-intentional conduct stems from the actor’s intention to violate the prohibitory norm. Criminal liability in mistaken and Quasi-mistaken conduct stems from the actor’s recklessness or negligence.
Section 3.6 Causation: The Requirement of Contributory Link Between an Actor’s Action and a Result
- Causation is not a requirement in every offence. It is required only when a specific result is part of the definition of the offense in order to prove that the specific result would not have occurred but for the act of the actor.
- An actor is liable for his action’s results if:
- The result is a natural consequence of the actor’s actions. For instance, an actor is liable for murder when he intentionally injures the victim with intent to kill him and such injury ultimately causes death.
- The actor’s action is the significant factor, among other external factors, in causing the result. For instance, an actor is liable for murder when he intentionally injures a wounded victim with intent to kill him and death occurs.
- The result occurred due to external factors but the result would not have occurred but for the actor’s action. For instance, an actor is liable for murder when he intentionally injures a victim with intent to kill him and death occurs due to lack of proper medical care or medical negligence.
- The result is a natural consequence of the actor’s actions given the victim’s infirmity or young age. For instance, an actor is liable for murder when he intentionally injures a victim with infirmity or of young age with intent to kill, so long as the actor is aware of the infirmity or the young age of the victim, although death would not have occurred but for the victim’s infirmity or youth.
- Causation severance: An actor is not liable for his actions if there is a significant intervening factor that severed the relationship between the actor ‘s action and the result. For instance, an actor is not liable for murder when he intentionally caused insignificant injury to the victim and another person caused significant injury that caused death.
- The aforementioned causation rules apply regardless of whether the actor’s action(s) occurred by commission or omission.
Explanatory Notes
Section 3.2 reaffirms a rooted Islamic jurisprudence principle of the legality element (Rukn shari’) in offenses including its elements (hukm taklifi) and (hukm wad’i). See Abdul Qadir Audah, 1 Al-Tashri’ Al-Jinaa’i Al-Islami at 113-5.
Section 3.3 rearticulates the doctrine that only voluntary actions incur liability. See Qur’an (2:286). See also the Hadith: The Prophet (peace be upon him) said: There are three (persons) whose actions are not recorded: a sleeper till he awakes, a boy till he reaches puberty, and a lunatic till he comes to reason. Scholars explained this doctrine in various terms. For example, See Zayn Al-Dīn ibn Ibrāhīm ibn Nujaym in 9 al-Baḥr al-rāʼiq sharḥ Kanz al-daqāʼiq at 15. The author contended that if a man falls on another killing him, the offender shall be liable for Diya only. See also Abdul Qadir Audah, 1 al-Tashri’ al-jinaa’i al-islami at 590-2.
Section 3.4 reaffirms the Islamic principle that no punishment is warranted without fair warning. The Quran (17:15), declares (never would We punish until We sent a messenger). Lack of knowledge of the prohibition is excusable only in extraordinary and unusual circumstances such as in the case of a temporary visitor to the Muslim State or a new convert to Islam who is unaware that selling alcohol to Muslims is prohibited.
Sections 3.5(4) & (5) deals with Mistake. Mistaken conduct can be divided into mistake in an act and mistake in desire. Mistake in an act occurs when the actor intended his act – For example, shooting at a bird- while not intending to cause a harm to a human, and erroneously killing or harming a human being. Mistake in desire occurs when the actor intended to do an act to achieve a particular consequence – For example, shooting to kill an enemy at war- but missing and achieving a different consequence such as killing a fellow soldier.
