Analysis of concept of vicarious liability in Islamic jurisprudence in light of

western jurisprudence

(Assignment 3)

Course: jurisprudence II

Submitted to: Ms. Zainab Iqbal

Submitted by: Fehmida kanwal

(Registration No: LLB-2017-05)

Semester: LLB-IV (2017-2022)

Spring 2020

Date of Submission: July 1, 2020

Department of Law

Fatima Jinnah Women University, Rawalpindi

Contents

Vicarious liability .......................................................................................................1

Vicarious liability in Islam.........................................................................................1

Vicarious liability in western jurisprudence ..............................................................3

Case law ..................................................................................................................4

Limpus v London General Omnibus Company ......................................................4

Comparative analysis .................................................................................................5

Abstract
Throughout this assignment we will talk about concept of vicarious liability in Islamic and

western jurisprudence. Analysis of vicarious liability in both jurisprudence. Concept of vicarious

liability is taken as exception to the strict liability in Islamic law in which a person is held liable

for act of another person. To extent this vicarious liability there should be relation between these

two like word and guardian or master or servant. Both jurisprudence is agreed on this principle.

i
Vicarious liability

The tort doctrine that imposes liability on one individual for the failure of another, with whom

the individual has a special relationship (such as parent and child, employer and employee,

servant and master), to exercise such caution as would be used in similar circumstances by a

fairly cautious man.

Vicarious liability is a legal concept that assigns responsibility for injuries to an individual who

has not caused injury but has a clear legal relationship with a person who has been negligent. The

responsondeat superior doctrine (Latin for "let the master answer") is based on the relationship

between employer and employee. The law holds the employer liable for an employee's lack of

treatment in relation to those the employer owes a care obligation to. To order for the superior

respondent to apply, the negligence of the employee must be within the scope of her

employment. There are three essentials in order to impose the vicarious liability on someone

which are: 1) there must be a certain type of relation between the parties. 2) The wrongful act

must be committed by another person. The wrongful act must happen during the course of

employment1

Vicarious liability in Islam

The Islamic Sharia discusses all matters of religion and life. Therefore, religious consideration

takes effect as an internal control of human acts. The word "vicarious liability" clearly does not

exist in Islamic rule of torture in the classical books of fiqh appear in these exact terms. General

rule in Islamic law is that a person is liable for his own acts, 2says: "Every person is responsible

1
Harold J. Laski, The Basis of Vicarious Liability,26 JSTOR,105-135(1916).

2
al-Mawdudi (d. 1400H/1979M).

1
for whatever he does, and no one is responsible for the deeds of other”. “no bearer of burden can

bear the burden of another” and in other place it is also mentioned that “every soul will be (held)

in pledge for its deeds”.3 This is the general rule in Islamic law but along with these general rules

there are some exceptions. Vicarious liability is exception to this general rule

the greatest justification to Allow for an exception is ”Every one of you is a guardian and is

responsible for his charge, the imam (ruler) is a guardian and is responsible for his subjects, the

man is a guardian in the affairs for his family and responsible for his charges, a woman is

guardian of her husband's house and responsible for her charges, and the servant is: a guardian of

his master's property and is responsible for his charge”. 4

It was also reported that the Prophet adjudged that:” It is the duty of owners of the property to

keep and protect their property in the daytime, while it is the duty of the owner of animals to

keep their animals (from trespassing) at night. If any injury is committed by animals at night, its

liability shall be borne by their”. These hadith serves as exception to the rule of strict liability.

This trend was supported by all school of thoughts. For example a woman who has an epilepsy

(tasarra'a) needs to look after herself and if she can't care for herself so her husband will care for

her to stop her falling into water or fire after an epilepsy has affected her. When the woman falls

into a fire without any thought, then her husband is liable (Vicarious liability) for what

happened. if parents of a minor let him or command him to do any tortious act and he does then

the parents will be liable to the aggrieved party not that minor child or if the parents or guardian

act negligently and does not take proper care of the minor and the minor does anything wrong,

3
Al-Quran, 53; 38-39 .
4
Al-Bukhari, Sahih al-Bukhari, Arabic Texts with English Translation by Muhammad Muhsin Khan, Turkey: Hilal
Yayinlari, 1396H/1976M, Vol. 3, p 439.

2
the parents or guardian will be held liable. 5The law of vicarious liability can also extend to

holding animals. If the strict liability law stays the way it is, owner of an animal shall not bear

any portion of the responsibility for torture committed by its his Animal, because the torture was

caused by the animal's own actions and not by its owner. The rule of vicarious liability is existed

in Islamic law. (1) Liability of a coercer (mukrih) for his coercion of another person (2) Liability

of a commander (amir) for his command to another person; (3) The liability of the state for any

injury done by its workers; (4) The liability of a master for his slave; (5) The liability of an

owner for his animal; (6) The liability of an owner for his building 7) guardian and ward these

shows clearly that the Vicarious Liability rule exist in Islamic law.6

Islamic torture practice, strict Liability rules shall be the basis of personal and individual

liability. Vicarious liability is an extraordinary law that provides fairness, in particular, to the

exclusive employee or private worker, or to the general in public.7

Al-Quran, 53; 38-39 this verse is also serve as basis for exception in vicarious liability which is

doctrine of criminal liability. The guilty person is only person who can be accused of a particular

crime and no one else can be held liable for the same.

Vicarious liability in western jurisprudence

Vicarious liability is a strict liability scheme in which one person operates A is made solely

responsible for the tortures of another, B, while A is not by fault. A complaint can be brought

against A, B, or both. The Paradigm example of vicarious liability is the responsibility of an

5
Al-Baghdadi, Majma' al-Damanat, Cairo: al-Matba'ah al-Khayriyyah bi al-Jamaliyyah, 1308H/ 1890M, p. 45.
6
Abdul Basir bin Mohamad, Vicarious Liability: A Study of the Liability of Employer and Employee in the Islamic
Law of Tort,15 JSTOR,197-205(2000)
7
Abdul Basir bin Mohamad, Vicarious Liability: A Study of the Liability of the Guardian and His Ward in the
Islamic Law of Tort, 17 JSTOR,39-40 (2002).

3
employer for the tortures committed by their employees in the course and within the scope for

their professions. Vicarious liability multiplies the number of potential accused to the

intervention by the claimant and therefore increases the probability of having a Solvent, or

defendant insured. The common law theory of on Respondeat Superior assumes responsibility

irrespective of personal fault to the higher subjects is a master of torture liability His servants

committed when behaving within the framework of their employ.8 These are the major relations

in which vicarious liability of a person arises in western jurisprudence

1. Master and Servant. (2) Partners in a Partnership Firm (3) Principal and Agent. (4)

Company and its Directors.5) Owner and Independent Contractor

An employer is held responsible for the employee's wrongful acts, such as misconduct or racial

discrimination. An employer may also be held liable if an employee operates equipment or

machinery in a careless or improper manner which results in property damage or personal injury.

If an engineer ever loses control of a train and goes down the tracks on its own, the company that

owns and maintains the train may be held responsible for any damage and injuries caused by the

runaway locomotive, and if a child behaves negligently, the parent may also be held liable for the

conduct of the child. 9

Case law
Limpus v London General Omnibus Company
An omnibus driver, trying to disrupt another company's omnibus, has driven his own across

another company's route. His employers had supplied him and other drivers with a card stating

that they 'would not compete with or hinder another omnibus on any account.' Baron Martin had

8
Harold J. Laski, the Basis of Vicarious Liability, 26 JSTOR, 105-135(1916).
9
Glanville Williams, Vicarious Liability and the Master's Indemnity.20 JSTOR, 220-235 (1957).

4
instructed the jury that if the defendant's driver did so for his employer's purposes, the defendant

would be liable for that. But if it was an act of its own, and to carry out its own intent, the

defendants were not liable. The jury found for the plaintiff. Held: Notwithstanding written orders

to the driver to exercise caution the employer was responsible for the resulting crash. The

employer was responsible because the accident resulted from an act committed by the driver in

the course of his service and for the purposes of his master; it was not done for his own purposes

by the servant, but for the purposes of his master.10

Comparative analysis
In Islamic jurisprudence vicarious liability is treated as exception to strict liability whereas in

western jurisprudence vicarious liability is treated as separate principle. Concept of vicarious

liability is extended from hadith and from Qur’anic verses in Islamic law. Concept of vicarious

liability in both jurisprudence has different background but the concept is approximately same.

Under Islamic jurisprudence, if the employee's acts favour the employer and the employee in any

way, the employer will be vicariously liability of the employer's benefits and if there are no

benefits to the employer at all, the employee's wrong will not be passed on to the employer, but

under Western jurisprudence; The employer shall be liable vicariously for the portion of the

scope of employment which is strictly applicable in Western tort law. Therefore, under Islamic

jurisprudence, it is easier to apply the principle of negligence than under Western jurisprudence

of torture.

10
Limpus v London General Omnibus Company, CExC 23 Jun 1862

5
References

Al-Quran, 53; 38-39 .

Harold J. Laski, The Basis of Vicarious Liability,26 JSTOR,105-135(1916).
Abdul Basir bin Mohamad, Vicarious Liability: A Study of the Liability of the Guardian and His
Ward in the Islamic Law of Tort,17 JSTOR,39-40 (2002).
Abdul Basir bin Mohamad, Vicarious Liability: A Study of the Liability of Employer and
Employee in the Islamic Law of Tort,15 JSTOR,197-205(2000)
Glanville Williams ,Vicarious Liability and the Master's Indemnity.20 JSTOR ,220-235 (1957).
Al-Baghdadi, Majma' al-Damanat, Cairo: al-Matba'ah al-Khayriyyah bi al-Jamaliyyah, 1308H/
1890M, p. 45.
Al-Bukhari, Sahih al-Bukhari, Arabic Texts with English Translation by Muhammad Muhsin
Khan, Turkey: Hilal Yayinlari, 1396H/1976M, Vol. 3, p 439.
al-Mawdudi (d. 1400H/1979M).
Limpus v London General Omnibus Company, CExC 23 Jun 1862.