Right of self-defence in Islamic Jurisprudence
The Islamic Jurisprudence was imported into India by Muslim Sultans and later on adopted by Mughals with certain modifications to suit circumstances of the age and to satisfy needs of the people of the time. The Muslim system of criminal law was also adopted by British rulers with certain modifications till the enactment of the Indian Penal Code. I860. Even though the Hindu and Muslim systems of law differed in various respects but having regard to their doctrinal basis, they were essentially identical. Thus, both the systems have a religious conception of law in the sense that they were based on revelation and that the law bound the king, judges and the subjects.1Â Be that as it may. the entire criminal justice administration was based on the principles of Muslim Criminal Law and the punishments were inflicted upon criminals in accordance with the provisions of that law only.2
The law of homicide was subject to the exceptions namely, Wajib, Mandub. Muhab, Self-defence and Mukruh.3Â Wajib was the murder that was undertaken out of necessity or duty such as killing of the Murtadd or the apostate. Mandub was a murder that was recommended e.g.. when the Ghazi killed his unbelieving kinsmen, if they insulted Allah or his prophet. Muhab was the permitted qatle when the Imam killed the unbelieving prisoners of war. Killing in self-defence was also allowed. The Mukruh or the disapproved murder washaram illegal, and therefore, forbidden.
To kill a person in self-defence was justifiable but only in cases of imminent danger and when there was no other way out except by killing the person.4Â The right of self-defence was generally to be exercised in prevention of adultery, rape, and other serious offences which were punishable with death. Homicide committed by a person under threat of death was also outside the purview of illegal homicide. Thus, the law of self-defence in acquitting a criminal from punishment which is well recognised in every civilized legal system was duly recognised in the Islamic Jurisprudence, which is based on Sharia.5Â The Koran lays down that".......he who helps himself after he has been wronged for these there is no way against them...........6Â It is also obvious that the sacred book of Islam i.e. Koran is also in agreement with the view that the homicide committed in exercise of right of self-defence is justifiable and the defendant is immune from criminal liability.
There were other circumstances as well under which murder was justifiable. For example, a husband could kill a man who attempted to rape his wife or sister. A rich Muslim merchant slew his wife along with a baby when he found her in bed with her lover. For this crime only a fine was imposed.7Â Many other illustrations may be cited from Manucci8Â in this regard. In Khwaja Mu'azam v. Wife,9Â Akbar, the Mughal Emperor recognised the loss of temper or loss of self-control as a mitigating factor in murder. In that case, the accused was ordered to be imprisoned. In cases of loss of self control lenient view was taken during the medieval era.
It is, thus, clear that crimes committed se defenden do were treated justifiable and crimes committed under the loss of self-control, excusable. The right of self-defence was expressly recognised by Muslim law. In this context, Adamson's observation about a common link between human and animal societies is relevant, because the right of private defence springs from instinctual behaviour:
"Human society is unlike animal society. In degree human society is different from animal society. That difference resides in the fact that the behaviour characterising animal societies is largely instinctual and only in small degree learned: whereas in human societies the behaviour of men is only in limited degree instinctual and in large measure learned. The defence of person and property belongs to the instinctual aspect of human behaviour, when he is confronted with unlawful attack by the assailant."10
In Islamic Jurisprudence, self-defence was considered not merely a right but also to a certain extent a duty. This is evident from the following observation of Faruki :
"Man's dearest possession is life, and since it is given to him to live but once, he must so live as not to be seared with the shame of a cowardly and trivial past, so live as not to be tortured for years without purpose, so live that dying he can say. All my life and my strength were given to the first cause of the world - the liberation of mankind."11
On this subject, Islamic jurisprudence seems akin to that of Hindu Jurisprudence, which is based on the concept of Dharma. However, the right of private defence is wholly based on necessity and need in the Islamic jurisprudence. Fitzgerald has treated the rule of necessity and need as a source of law. 'Necessity knows no law' is the common precept and can be applied to cases of urgency.12
The meticulous adherence to law in certain cases turns into injury and is followed by serious consequences, so it is allowed by Shariah to invoke the rule of necessity and need on such occasions. Here one has to make a distinction between necessity and need. By 'necessity' is usually meant something more pressing than 'need' and which, if not fulfilled, leads to serious results.13
The determination of the extent and the time of necessity and need, and whether it is necessity or need, depends in individual cases upon one's conscience and taqwg (fear of God), which is the true measure of judgment of human actions.14Â As a matter of fact, the right of private defence in the Islamic criminal jurisprudence is related to necessity, as human action is guided by it.
These observations are further supported by the declaration of Human Rights which is based on the sayings of the Quaran, the sacred book of Muslims.
Article 3 of the Declaration of Human Rights states:
"Every one has the right to life, liberty and security of person."
Islam has recognised this "natural right" to life. Thus Quaran says:
"If one slayeth another unless it be a person guilty of man-slaughter or of spreading disorder in the land, shall be as though he had slain all man-kind, but that he who seveth a life shall be as'though he had saved all man-kind."15
It further says:
"Do not kill any one whom Allah has forbidden, except for a just cause."16
The Prophet said :
"The believer in God is he who is not a danger to the life and property of any other."17
From this, it is evident that the aggressor who is a danger to the life and property of the defendant is not considered to be a believer in God and be killed in the exercise of right of private defence, because it is a just cause. He further observed :
"Your lives, your property and your honour are as sacred as this day (the day of Hajj) is sacred and your blood and your property are inviolable till the last day."18
During the medieval period, the Muslim conquerors kept the administration of criminal law into their own hands and ignored the laws of Manu on the subject. But the Muhammadan law itself provide for the exemption of tributary infidels from some of its penalties, which expressly declaring them amenable to others. The same author has called the Muhammadan law as sacred law for the administration of criminal justice."19
Fatawi Alamgiriyah was compiled during the reign of Aurangzeb, the Mughal emperor. It contains the entire provisions relating to criminal law prevailing in the medieval era of lndia. During this period, a man was entitled to kill another in self-defence provided the defendant was a Muslim by faith :
"If any person draws a sword upon a Mussulman, he (the mussulman) is at liberty to kill him in self-defence, because the prophet has said: He who draws a sword upon a Mussulman, renders his blood liable to be shed with impunity, and also, because a person who thus draws a sword is a rebel, and guilty of sedition, and it is lawful to slay him, God having said in the Quran, "slay those who are guilty of sedition, to the end that it may be prevented." Besides, it is indispensably requisite that a man repel murder himself and as in the present instance, there is no method of affecting this but by slaying the person, it is consequently lawful so to do. If, however, it be possible to effect the self-defence without slaying the person, it is not lawful to slay him,"20
It is obvious from the above assertion that under Muslim criminal jurisprudence an aggressor was considered to be a rebel and guiltybof edition and hence it was lawful to kill him. This was supported by the saying of Quran. But, whenever, it was possible to defend one-self without killing the aggressor, it was unlawful to kill. him.
Hedaya further quoted that it is described in the Jama Sagheer that if a person strikes at another with a sword, either during night or day, or picks up a club against another in the night in a city, or in the day-time in highway out of the city, and the person so threatened kills him who thus strikes with the sword, or the club, nothing is incurred, because in the case of striking with a sword, there is no room for delay or deliberation, it is necessary to kill the attacker in order to repel him. Though in the case of club, there is more room for deliberation, yet in the night-time assistance cannot be obtained, consequently the person threatened is forced to repel the attack and kill the aggressor. Similarly, if the attack is made in the day-time in the high way. where no assistance is readily available, the defendant may kill the assailant.21.
There was a provision to realise fine from the accused for killing an infant or lunatic in self-defence. If a lunatic drew a sword upon a person and the person killed him in self-defence, the fine of blood was due from his property and did not fall upon his Akilas. Shafei maintains that nothing whatever was incurred in this instance. Also, in the same way, if an infant drew a sword and made an attack upon a person, or if an .animal attacked any one and the person so attacked killed the infant or the animal, a fine was due on account of the infant, or the value on account of the animal. This was according to Haneefa and not according to Shafei.
The arguments of Shafei upon this point are two-fold. First, as the person attacked slew the infant or lunatic in self-defence, they are, therefore accounted the same as a sane person or an adult. Secondly, the person attacked slew the infant or lunatic because of their act furnishing him with a reason for so doing. He is, therefore, in the same predicament with a person acting under compulsion. In other words, if a person threatens another by saying to him. "Kill me, or I will kill you" and the person thus threatened perceives that if he does not kill the other, he will himself be slain, and he accordingly kills him (the compeller). nothing whatever is incurred and so here likewise in the cases of self-defence. The argument of Haneefa is that the slayer if so, in this instance, killed a person of perpetually protected blood or has destroy.-a property (the animal), protected in right of the proprietor,
Now the act of annimal is not of a nature to do away its protection neither cm an infant, by any act. forfeit the protection of his blood, notwithstanding, it be purely on behalf of his own right, infants not being capable of distinguishing between right and wrong: (Whence it is that an infant guilty of wilful murder is not liable to be put to death) in opposition to an adult, or one of sound understanding, as those are capable of distinguishing. Still, however, retaliation is not incurred by the slaying of the infant or lunatic because in the case in question, a reason exists for their blood being out of protection, namely, the repulsion of evil. A person attacked by them, therefore, is allowed to slay them under a condition of responsibility in the same manner as a person who eats the provisions of another in a time of famine is responsible for the value; and the fine of blood is accordingly due."22
Retaliation is incurred by killing an assailant while going away after having made an attack upon another. If a person draws a sword upon another and strikes him and then goes away, the person so struck or any other afterwards kills mis person, he is liable to retaliation. This is where the striker retires in such a way as indicates that he will not strike again, for as upon his retiring he no longer continues to he an assailant and the protection of his blood which had been forfeited by the assault, reverts to him. If under such circumstance he is killed, retaliation is incurred,
If a person comes in the night to a stranger and carries away his goods, the owner of the goods follows and slays him. Nothing is incurred as the prophet said, "Ye may kill in preservation of your property". It is to be observed that this is only where the owner cannot recover his property but by killing the thief, for, if he knew that upon his catling out. the thief would relinquish the goods and he notwithstanding neglects calling out and slays, him. retaliation is incurred upon him, since he slays the person unrighteously in this case.23
A person who kills another by misadventure after having maimed him. incurs only a fine. If a person strikes off the hand of another by misadventure and then before he has recovered, slays him by misadventure, he owes a complete fine. The fine for the hand is remitted because both the offences are of one species or description namely, by misadventure and punishment for both is the same i.e. fine. The consideration for the person is also a consideration for all its parts, ll follows that the fine for the pan is included in the fine for the whole man. This is why the case is the same as if he had slaim him at the first.24
Thus, it is apparent from the above discussion that the concept of right of private defence was comprehensive and elaborate during the medieval era of India but was allowed in a restricted way.
Nigeria has adopted the Muslim Jurisprudence known as Maliki Law. Prof. F. H. Ruxton has presented a view of the legal system in Nigeria. The following portions of his book are not only relevani here but also expository of the nature and scope of the right of privaie defence:
"In every encounter or fight between two armed or unarmed men. on foot or on horse back, if both combatants succumb, retaliation has taken place, if not. the survivor becomes liable to the law. Thus, the law practically prohibits duelling. Homicide in self-defence or in defence of property entails no punishment."25
In this way, killing in self-defence and in defence of property was permitted in the Maliki law. The author further elaborates the scope of self-defence and states :
"There is neither crime nor misdemeanour in using force to defend oneself or one's property against an aggressor the latter should, however, be abjured to desist if he is in a state to understand the appeal. The term 'oneself includes wife, family and kinsmen. Kilting in such a case is permissible, if no other means will cause the aggressor to desist: but if flight from him can be taken without exposing oneself (or one's goods) to injury, the law does not even permit the wounding of the aggressor."26
The principle on which the right of self-defence is based in Nigeria is that when a man takes up arms against another, he loses the protection of the law. If the person threatened can have recourse to the assistance of the law in time to prevent the harm, he cannot take the law into his own hands.27Â This is akin to the Indian law.
It is, thus, obvious that the law of self-defence in the Islamic criminal jurisprudence was wide but the right was to be exercised in a restricted way. Such restrictions are still adhered to in various legal systems of the world. However, the scope of right of self-defence is enlarged today, as the law extends its protection even to a stranger.
Author Name: Dr R. D. Yadav
