Abstract of PhD Thesis CONSUMER PROTECTION IN THE CONTEXT OF PRODUCT LIABILITY: A COMPARISON OF ISLAMIC AND ENGLISH LAWS BY MUHAMMAD AKBAR KHAN

This study begins with a brief look at the evolution of consumer protection as a law in modern legal systems, particularly English and Islamic laws. The entire debate is based on the presumption that the protection of consumers has become significant due to the advancement of science and technology. The study focuses on the product liability that deals with the issues of damages and harms caused by a defective product in a sense that in contemporary times many products are production mysteries and that they have caused accidents. The thesis presents a discourse of various product liability regimes in the United Kingdom such as contract and tort with analysis in the light of Islamic Shari’ah. The study explores the theoretical foundation of consumer protection in general and product liability in particular in both English and Islamic laws. In this regard, the European Union Directive on product liability (1985) is widely referred which became part of the English law through enactment of the Consumer Protection Act, 1987. It is appreciated that today the English law to a large extent is capable of solving the disputes of product liability and a valuable amount of case law has been developed in this regard. The regime, however, has various deficiencies, which have been pointed out in this thesis.

Similarly, the thesis explores the protection of consumers in the context of product liability from the perspective of Islamic law. It also explores the juridical basis for the adequate protection of consumers in general and product liability in particular. The classical Islamic law has been evaluated to analyze the concept of consumer protection from an Islamic perspective. The thesis also analyzes the reasons of Muslim community for lagging behind in scientific and technological advancement and that it could not enact laws to cope with modern legal challenges. It stresses on the dire need to reconsider the Islamic law on product liability in the context of modern scientific and technological developments. It urges the Muslim jurists to learn from the experiences of modern product liability regimes in order to make the Islamic law on the subject up-to-date, adequate and effective. Similarly, the thesis recommends the English legal fraternity to learn from the Islamic law for removing gaps and deficiencies in their legal system. The research is a comparative analysis of the subject of consumer protection in the context of product liability in a sense that the key notions of modern product liability have been thoroughly examined in both English law and Islamic Shari’ah. 

This thesis concludes by making recommendations for drafting a comprehensive set of rules based on the divine principles of Islamic law in the hope that such a code will effectively contribute in the development and preservation of consumer rights against defective and dangerous products in Muslim countries in contemporary age of advanced technology.

This is the abstract of PhD thesis submitted by the author to the Faculty of Shari’ah & Law, International Islamic University, Islamabad in 2015. The author is also lecturer in law, IIUI and can be reached at: m.akbar@iiu.edu.pk 

Islamic Law and the Modern State

The Middle East is in political turmoil yet again. The rise of ISIS has reignited the debate about the relationship between Sharia and the State. Does Sharia require the establishment of a state, which is based on coercion? Or the notion of coercion-based State is antithetical to faith-based Sharia? These questions could be answered in two ways. First, by using the terminologies and theoretical frameworks developed by Western scholars. A majority of them describe Sharia/Fiqh as ‘jurists law’ because these are Muslim jurists who elaborate the rules of law by using the methodology of usul al-fiqh. In this way, Sharia/Fiqh is the only legitimate ‘Islamic law’ and all other mechanisms of governance, whether formal or informal, are illegitimate or at best extra-Sharia. This is the dominant narrative of Islamic law and legal history amongst the Western scholars.  

There is another way of looking into these questions. This is the internal view of Sharia/Fiqh about the State. It is distinguishable from the Western view in the sense that it tackles this issue in the terminologies and theoretical frameworks of Muslim jurists. Similar to the Western view, it portrays Sharia/Fiqh as the legitimate form of law, however, it also recognizes the other forms of regulations, which are equally legitimate. In fact, these other forms draw their authority from within Sharia/Fiqh. In this way, although these so-called ‘extra-Sharia’ regulations do not have the normative authority of rules laid down by the jurists, they are nevertheless not illegitimate. Rather, they are complementary to Sharia/Fiqh. This narrative is justified under two broader theories of maslaha and siyasa. As a broader concept, maslaha encompasses istishab, urf, istislah and darura while Siyasa justifies the diverse institutional framework of ruler’s mazalim courts, market regulations under hisba and crime control through police (shurta).

Note that the question about the compatibility between Sharia and the Modern State is not merely an academic question for the Islamic Republic of Pakistan. Rather, it poses existentialist threat to the security and integrity of the state. Despite being a product of geopolitics in the region, the Taliban movement relies upon the rhetoric of the implementation of Sharia in Pakistan by replacing the ‘infidel system’. The failure of the formal system in providing free and fair dispensation of justice provides further impetus to the demand of the Taliban.

In this context, Pakistani jurists have to provide answers to such questions as: what is the nature of Sharia/Fiqh as a system of governance? What type of political system is envisaged under Sharia/Fiqh? What is the role of coercion/violence under such system? Are Muslims duty bound to establish an Islamic State? What are the key features of an Islamic State? Can there be multiple Islamic States? How should such states coordinate with each other?

These questions need to be answered from within the framework of Sharia to satisfy the conscience of ordinary Muslims.