The Special Legitimate Defence in the Islamic and British Law - Research Proposal Example

In investigation into the special legitimate defence in the Islamic and British Law Table of Contents Table of Contents 2 1. TITLE: 3 2. BACKGROUND AND RATIONALE 3 3. RESEARCH QUESTION 5 4. RESEARCH METHODOLOGY 5 4.1 Proposed research approach 5 4.2 Proposed Research Design 7 5. PLAN OF WORK & TIME SCHEDULE 8 References 9 1. TITLE: In investigation into the special legitimate defence in the Islamic law and British Law 2. BACKGROUND AND RATIONALE In criminal law, legitimate defence refers to a state where an individual engages in an act intended to protect his or her legal interest or right from criminal danger in a manner that is consistent with the danger based on which an act is directed (Ismaila 2008. It points to a right that permits a defendant to resist any aggression directed on him in circumstances where no other means are available (Sakhen 2008). In general, criminal laws place legitimate defence within the structure of general permission reasons, and therefore consider the individual who exercises legitimate defence to be relying on a right that essentially goes back to protecting a legal interest that is more precious than the aggressor's interest (Ismaila 2008; Ohlin 2015). Under the Islamic law, legitimate defence is defined by the Islamic jurisprudence (Fiqh) using the term "repulsing attacker," given that it is an act that is legitimately indispensable in order to prevent an illegitimate real danger to the right of a person (Sakhen 2008). However, because of the confusion regarding the extent to which one may seek legitimate defence protection, some scholars like Al-Mutairi (1997) have argued that as many individuals who are non-experts in Islamic law have today tended to compromise by giving attention to certain secular tendencies, which are uncharacteristic of the Islamic world, use of the principle of legitimate defence may lead to abuses. In this respect, the principle is associated with the public interest principle (aslmah ah) that has been widely exploited to make matters that are incompatible with Shari'ah texts permissible in the society (Al-Mutairi 1997). Indeed, as Al-Mutairi (1997) clarifies, some Islamic jurists may be conscious of the differences between issues that compel people to pursue self-defence and the exigencies of the society, although they are not likely to agree on whether a certain case should be considered a case of necessity. A review of current and past literature reveals that they tend to disagree on their interpretations of They may disagree on lawful arrest, use of force, arresting offenders, self defence, defence of another; and crime deterrence (Shah 2013; Gogia 2015). In the proposed study, Islamic jurists would be contacted to make references would made to the Quran as well as Tradition of the Prophet, as the two are the foundation of Islam and critical source of doctrinal and legal principles (Qadoomy 2008). In the UK, the doctrine of legitimate defence originates from several sources. The common law governs a person’s defence. Defence to prevent crime is governed by the Criminal Law Act 1967, while the Criminal Damage Act 1971 governs the defence of property. The legislations appear to have brought about an agreement on the interpretation of lawful arrest and arresting offenders, self-defence, defence of another; and crime deterrence (Crown Prosecution Service 2016). Still, some researchers have argue that the Islamic penal system, which is essentially a divine system, is relatively proper and fit for mankind, as it provides security and safety, and preserve the rights of privacy and crime prevention (Sakhen 2008). Currently limited research data exists about special legitimate defence in the Islamic law. Based on this backdrop, the proposed study aims to clarify what legitimate defence means based on Islamic laws and its legitimacy compared to the British law. 3. RESEARCH QUESTION The proposed research question is: What is special legitimate defence in the Islamic law in Islamic Law and British Law and how do they relate? The aim of this proposed research is to examine special legitimate defence in the Islamic law and British Law. The proposed research objectives include:- To establish the theoretical foundations of special legitimate defence in Islamic Law and British Law. To clarify key features for an accurate definition of special legitimate defence. To compare special legitimate defence in Islamic law and British Law. The study will contribute to new knowledge on special legitimate defence in the Islamic law in Islamic Law and British Law. 4. RESEARCH METHODOLOGY 4.1 Proposed research approach Given that the proposed study would require qualitative data, a qualitative research approach is proposed for the study. The anticipated data expected is essentially qualitative in nature, as the researcher will explore in-depth and detailed data on the Islamic and British jurist’s interpretation of legitimate defence. Because the proposed study is not an objective reality and is instead concerned with gathering and interpreting subjective data within a natural decision-making environment, a qualitative research paradigm is proposed based grounded theory. Grounded theory (GT) is essentially a research methodology intended for construction of theories by facilitating analysis of empirical data. Essentially, the grounded theory is selected to guide the proposed research (Stephenson 2012). Use of a GT together with an intensive interviewing techniques are useful for collection of data allows a researcher to centre on research topics, in addition to avoidance of any probable drawbacks of data errors to qualitative data that come about from interpretation. A systematic literature review will also be performed by using suitable library-based and online sources. In regards to the online search, the research will use Boolean logic, a technique that facilitates the mixing of words and phrases to extend or limit information search. In this regards, peer-reviewed journals and academic texts will be relied on, even as their anecdotal opinions would be given consideration (Onwuegbuzie et al 2012). It is expected that research literature regarding special legitimate defence in the Islamic law and British Law will be current. As a result, online search will take consideration of databases like:- British Humanities Index (BHI) International Bibliography of the Social Sciences (IBSS) Google Scholar National Criminal Justice Reference Evaluation of literature will be based on Critical Appraisal Skills Programme (CASP) as it facilitates reflecting on major debates and identification of the theoretical and practical gaps in literature. As the topic of interest remains relatively unexplored, it is expected that academic literature would be limited. Therefore, the researcher expects to use a flexible approach where focus will be on deriving relevant aspects of the wider legitimate defence literature to establish the basic theoretical perspectives. 4.2 Proposed Research Design Data Collection The proposed methodology comprises an online assessment of semi-structured interview questionnaires research instrument, which is consistent with a qualitative research design. As Dornyei (2007) explains, a qualitative research design is method of research inquiry that depends on a sequence of procedures that essentially explore and interpret research topics with the view of gaining a deeper insight into research phenomena of interested. The qualitative research design is appropriate for collection of pertinent qualitative in-depth data or generating new findings that are intended for application beyond the scope of a certain study, subject to the degree of generalisability of the research findings (Heyvaert et al 2013). Particularly, the researcher will use semi-structured interview questionnaires instead of web-based structured surveys. The reason for this is because emails have a special feature called “push” technology, which would facilitate direct communication between the researcher and research participants, hence allowing interaction (Mack 2010). Because of the expected language barriers, it is deemed necessary to make translation of the selected questionnaires into Arabic for participants in Islamic nations. In most cases, the survey questionnaires will be based on participant’s language preference. On the hand, research participants who are physically accessible will be interviewed physically on a one-on-one basis. Research participants who are accessible by phone and wish to be interviewed that way will be interviewed via the phones, where the semi-structured interview questionnaires will act as interview guide. Study Sample The targeted research participants consist of legal workers in public and private organisation (including jurists and legal practitioners) the United Kingdom and ISLAMIC COUNTRY. The data collection process is planned to take four weeks. During participants’ recruiting process, various legislative institutions will be identified online before being contacted through emails to request permission for a research, and ultimately a list of relevant people to take part in the study alongside their contact information. Later, email invitation to the selected participants will be sent in consistency with the participants’ institutional policies regarding contacting their employees. For instance, an approval for mass emails from the organization of the participant will have to be documented before proceeding with actual data collection. Data Collection During the first week, the researcher will send out emails containing semi-structured questionnaires to selected participants who consent to participate and who cannot be reached physically. They will be requested to take 21 days, if possible, to respond. Those who wish to be interviewed by phone, because of accessibility purposes, will be phones. 5. PLAN OF WORK & TIME SCHEDULE The research proposal proposes a full-time study, which would be completed in three years. During the fourth year of registration, a final report write up will be completed. Timescale (three years full-time) Activity Year 1 Year 2 Year 3 Literature review Data collection and analysis Final report write-up References Al-Mutairi, Z 1997, “Necessity in Islamic Law," Thesis Submitted To The University Of Edinburgh For The Degree Of Doctor Of Philosophy ( Ph. D ) January 1997 Crown Prosecution Service, The 2016, Self-Defence and the Prevention of Crime, viewed 21 June 2016, Dornyei, Z 2007, Research Methods in Applied Linguistics: Quantitative, Qualitative, and Mixed Methodologies, Oxford University Press, Oxford Gogia, V 2015, The legal position of the Islamic State in international law Legality of the use of force against the Islamic State, viewed 21 June 2016, < http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=5467422&fileOId=7854976> Ismaila, Z 2008, Legitimate Defense as a reason of permission: A Contrastive Study between Sharia & Law, viewed 21 June 2016, Mack, L 2010, "The Philosophical Underpinnings of Educational Research," Polyglossia,vol 19, pp.5-10 Ohlin, J 2015, The Doctrine of Legitimate Defense," International Law Studies, vol 91, pp.119-154 Onwuegbuzie, A, Leech, N & Collins, K 2012, "Qualitative Analysis Techniques for the Review of the Literature," The Qualitative Report vol 17 np 56, pp.1-28 Qadoomy, M 2008, The Special Legitimate Defense (the payment of an Al Sael in the Islamic jurisprudence (A Study Compared to the Law)," An-Najah Scholars, viewed 21 June 2016, Sakhen, Z 2008, "The Special Legitimate Defense (The Payment of an Al Sael) in the Islamic Jurisprudence (a Study Compared to The Law)," An-Najah Scholars, viewed 21 June 2016, Shah, N 2013, "The use of force under Islamic Law," The European Journal of International Law, vol. 24 no. pp.1343-365 Stephenson, CB 2012, What causes top management teams to make poor strategic decisions?, DBA thesis, Southern Cross University, Lismore, NSW Read More