Principles of Identifying the Cause of Events from the Perspective of Imamiyah Jurisprudence and English Law

Abstract

Islamic jurists, judges and legal scholars invoke their ‘common sense’ for identifying the cause of an event and according to them, they try to examine the event from the perspective of an ordinary human being and not a philosopher or a scientist. However, maintaining that "common sense" is essentially obscure, misleading and non-regulated and invoking such a factor in identifying the causes of events seems to be incorrect, some scholars have harshly criticized this approach. Developing the "common sense principles" theory in 1959, Hart and Honore´, two distinguished English jurists, aimed at providing certain principles and rules for standardizing common sense. However, the theory of "common sense principles" was not accepted by the legal community due to the existing problems in their method of argument. In the present article, relying on the studies conducted in the field of empirical psychology, first and foremost, the authors attempt to persuade the readers that the theory of "common sense principles" is the best standard for identification of the causes of events. Secondly, they deal with comparing this theory with the viewpoints of Imamiyah jurists and valid narrative texts. Accepting the conclusions of the present theory, in addition to its theoretical impacts in scientific circles, can help the judges to identify the causes of events.

Keywords

• causation
• common sense
• hart
• common law
• tort