IN the Roman law of ancient times animals that caused damage or injury were brought to court and tried. In some cases they were stoned to death as punishment and in other cases thrown away outside the boundary, if not killed.
In Jewish law, on the other hand, should a bull or ox kill a man or woman, the animal would be stoned to death, and its meat would not be lawful for consumption. Its owner would not be liable unless the animal had had a previous record or tendency to cause harm.
As seen, the law in the above situation treats the animal as personally liable in some circumstances and thus subject to punishment.
Islamic law has a different approach regarding animals by holding that that they are themselves not liable for any damage or injury that they may cause because they are dumb creatures.
Instead the law places the responsibility on man, the intelligent creature who is authorised to use the animals for his own benefit to ensure that such a use is safe and not to be a source of danger to life and property of others.
On this basis Muslim jurists of various schools of Islamic law have held opinions to the effect that animals by themselves cannot by themselves create liability either criminal or civil.
Animals are created by Allah the Almighty so that man can benefit from them. Camels, for example, are mentioned in the Quran in the context of their use as a means of transportation.
Other animals are also mentioned and man is free to utilise them subject to rules governing the same.
The rules relating to slaughter of domestic animals that can be consumed by man are well-explained in Islamic law.
The rule of zakat applicable in the case of domestic animals and the rate to be paid clearly show that man is free to keep and breed such animals both for personal and trade purposes.
Additionally the keeping of hunting dogs and birds of prey is expressly endorsed in the Quran. Not only these animals are legal to be kept, but other animals they may catch and kill during supervised hunting exercises can be eaten by Muslims without the need to have them slaughtered in the normal way.
Bees, praised in the Quran for the honey they produce, is of much benefit to man.
In short, given the abundance of evidence in the Quran showing that animals are created by the Almighty for the sake of man, the general rule in Islam is that man is at liberty to use them for purposes compatible with the spirit of the Shariah, subject always, of course, to any other rules prescribed to govern such use, as is necessary in accordance with a particular situation.
Domestic animals, especially the four-legged ones, are known as ajma. The leading authority that governs the use and keeping of such animals is the hadith of the Prophet wherein he was reported to have said that al-ajma jurhuha jubar which means ‘domestic animals create no liability if they cause injury.’
In one case it was reported that Haram ibn Muhayyisah narrated that al-Barra ibn Azib told him that he had a ferocious camel which had entered a garden or farm of someone causing damage to some trees or crops.
He told the Prophet about the incident. The Prophet issued a ruling to the effect that it was a duty of farmers to guard their farms during the daytime, and owners of animals owed a similar duty to keep their animals at bay during the night.
The animal owners were to be held liable had damage been caused during the night.
With regards to injuries inflicted on human beings by domestic animals, the principle of no liability as enunciated by the previously quoted hadith was held to be of general application insofar as there was no negligence or tafrit on the part of the owner, keeper or anyone else who had direct control over the animals.
Al-Baji, one of the leading jurists of the Maliki school of Islamic law, while commenting on the above hadith had this to say:
“The injury mentioned therein is meant to be that which is the product of an act by no one and that which is not caused by anyone, that is an act that can be truly considered as that of the animal in the real sense. Whereas an injury that is indirectly caused by a human being like the leader of the animal or its driver or caused by frightening the animal has nothing to do with the animal because the injury that has been caused is the result of an act by a human being and not of the animal.”
Another prominent jurist Ibn Abd al-Barr maintained that Muslim jurists had reached a consensus to the effect that damage or injury caused by domestic animals during daytime and any injury caused not as a result of an act of anyone shall give rise to no liability.
Non-liability in this case is not limited to injuries caused to human beings but covers all types of damage that could be possibly brought about by the animals.
Perhaps a summary of the law by another well-known jurist, Ibn Daqiq al-Id, can make a clear statement on the rules governing this issue. He wrote:
With respect to injuries caused by domestic animals to human beings, the jurists had discussed this at length in the context of the liability of the rider, driver and leader (of those animals in the old days). Despite their disagreement on some points, the fact is that no one took the above-mentioned hadith in its general and apparent meaning, i.e. that the animal gives rise to no liability at all. Hence what can be properly deduced from their elaboration is that the no-liability principle (as mentioned in the hadith) shall only apply where there is no negligence on the part of the owner or anyone under whose control the animal is kept, and the hadith needs to be interpreted accordingly.
The second Caliph Umar ibn al-Khattab had his own policy regarding animal liability; when an animal which was tied up or confined inside a certain enclosure ran or escaped from such a place and caused injury to any person, no liability would arise for the first three times it did so.
Under those circumstances it must be returned to its owner. However, should the same animal attack for the fourth time, the victim was entitled to kill the animal, and at the same time the owner would be made liable for the injury caused.
According to Islamic law, domestic animals that are known to have caused damage or injury in the past or wild animals kept for certain purposes need special handling by their owners, failing which they will be held liable based on negligence.
As such, the owners of camels, donkeys, dogs or even cats which have a previous record of attacking people or causing damage to property many times in the past, will be held liable if damage or injury is caused by the animals.
They also owe extra duty of care in cases where others have complained about the conduct of their animals, and as such any failure to take necessary steps to control the animals will certainly amount to negligence (tafrit).
However, when the domestic animals have no such record, then no liability will arise because the general practice is that such animals are normally allowed to move about freely and not to be tied up or confined all the times.
Similarly, no liability will be incurred when it is the victim who is the cause of an attack, such as by entering an area within which the animals are kept without the permission of the owner.