The mistake and its impact on judgment: An analytical jurisprudential comparative study by Dr. Omar Mahmoud Hassan

The mistake and its effect in judgment: a foundational comparative jurisprudential study Author: Omar Mahmoud Hassan Classification: Criminal Year of publication: 2015 ISBN: 9786144017074 =========================== Contents Preliminary chapter: The reality of the mistake and the reality of judgment First section: The mistake: its definition, related terms, its types, its controls, its relation to competence First requirement: Definition of mistake linguistically and idiomatically Mistake linguistically Mistake in terminology The defining reference Explanation of the definition and its reservations Second requirement: Related terms and their difference from mistake First: Forgetfulness Second: Error Third: Ignorance Third requirement: Types of mistake First: Considering intention and lack thereof Second: Considering the direct action of the wrongdoer and its causation Third: Considering guarantee and non-guarantee Fourth: Considering its source as suspicion or certainty Fifth: Considering the act of doing or abstaining from doing Sixth: Considering its cause Fourth requirement: Controls of mistake Fifth requirement: The obligation of the wrongdoer and holding him accountable for the mistake First: Rules of competence Definition of competence Categories of competence Disorders of competence Second: Holding the wrongdoer accountable for the mistake Third: The effect of mistake on the actions of the accountable person Second section: Judgment: its reality, legitimacy, ruling, pillars, the judge, and his approach in issuing rulings First requirement: Definition of judgment linguistically and idiomatically Second requirement: Legitimacy of judgment and its ruling First: Legitimacy of judgment Second: Ruling of judgment Third requirement: Pillars of judgment Fourth requirement: The judge First: Definition of the judge and his responsibilities Second: Conditions and attributes of the judge — agreed conditions — differing conditions Fifth requirement: The judge’s approach in issuing rulings First: The judge’s approach in his rulings in Islamic jurisprudence Second: Procedures of trial in positive law Chapter One: Mistake in testimony First section: The reality of testimony First subsection: Definition of testimony, its authenticity, its legitimacy, and its ruling First: Definition of testimony linguistically and idiomatically First: Testimony in language Second: Testimony in terminology Definition of testimony in Islamic jurisprudence Definition of testimony in positive law Third: Comparison between Islamic jurisprudence and law in defining testimony Second subsection: The validity of testimony Third subsection: The legitimacy of testimony Fourth subsection: The ruling of testimony Second section: Conditions of testimony and acceptance controls with the impact of mistake in it First requirement: Conditions of testimony and acceptance controls in Islamic jurisprudence Second requirement: Conditions of testimony and acceptance controls in positive law Third requirement: Comparison between Islamic jurisprudence and law on the subject of testimony Fourth requirement: Factors leading to mistake in testimony and their impact First: Mistakes resulting from weak senses Second: Influential pathological factors affecting the mind Third: Psychological illnesses Chapter Two: Witnesses’ withdrawal from testimony and its return First section: The reality of withdrawal from testimony First subsection: Definition of withdrawal from testimony linguistically and idiomatically Second: Extent of legitimacy of withdrawal from testimony Third: Conditions for the validity of withdrawal from testimony Fourth: Causes of withdrawal from testimony Second subsection: The effect of withdrawal from testimony before issuing the judgment and its consequences First: Effect of withdrawal before judgment in Islamic jurisprudence First: Effect on the judge’s ruling Second: Effect on guaranteeing the right of the witness Third: The extent of punishment for the one who withdrew from testimony Fourth: The acceptance of the witness’s testimony in the future Second requirement: Effect of withdrawal before judgment in positive law Third requirement: Balancing between Islamic jurisprudence and law regarding withdrawal before judgment Third section: The effect of withdrawal after judgment and before enforcement and its consequences First: Effect of withdrawal after judgment and before enforcement in monetary cases Second: Effect of withdrawal after judgment and before enforcement in cases of hudood and blood money Third: Balancing between Islamic jurisprudence and law regarding withdrawal after judgment and before enforcement First: The impact of withdrawal on the judge’s ruling Second: Impact regarding responsibility of the witness who withdrew criminally Fourth section: The effect of withdrawal after judgment and after enforcement and its consequences First: Effect of withdrawal after enforcement in monetary cases Second: Effect of withdrawal after enforcement in hudood and blood money cases Third: The stance of positive law on withdrawal after enforcement in criminal matters Fourth: Balancing between Islamic jurisprudence and law regarding withdrawal after enforcement in hudood and blood money cases First: Effect of withdrawal on the ruling Second: Responsibility of the witness who withdrew criminally Chapter Two: The effect of mistake in issuing judicial rulings First section: The reality of the judicial ruling First subsection: Introduction to judicial ruling, its conditions, and its legal classification First: Definition of judicial ruling linguistically and idiomatically First: In Islamic jurisprudence Second: In positive law Second subsection: Conditions of judicial ruling First: Conditions in Islamic jurisprudence Second: Conditions in positive law Third subsection: Classification of judicial ruling and avenues of error on it First: Classification of judicial ruling Second: Avenues of error on judicial ruling Second subsection: The effect of mistake in changing the nature of the thing First: The legal description of the ruling First: Opinions of jurists on the matter (Does the judge’s ruling execute outwardly and inwardly?) Second: The case scenario Third: Evidence for the opinions and discussion of them Fourth: The preferred opinion in the matter Second requirement: The validity of the judicial ruling First: The extent of the ruling’s validity Second: Manifestations of the ruling’s validity Third requirement: The effect of the ruling in positive law First: The binding authority of the res judicata Second: The case leaving the court’s jurisdiction Third: Declaration of rights Fourth: Strengthening of the right Second chapter: Responsibility of the judge for errors in his rulings First section: Protecting the judge, his duties, and responsibility for his rulings First requirement: Protecting the judge Second: The judge’s duties Third: Responsibility of the judge for his rulings Second section: Avenues of error on the judicial ruling First: Error resulting from the judge’s effort and its consequences Second: Error based on false cause and its consequences Third: The judge’s error in issuing the ruling First: The effects of intentional error by the judge Second: The effects of unintentional error by the judge Third: Responsibility of the judge for his mistakes in positive law Chapter Three: The effect of mistake in executing judicial rulings First section: The reality of executing the judicial ruling First subsection: Definition of execution, its legitimacy, importance, nature, and the jurists’ stance on execution First: Definition of execution linguistically and idiomatically Second: Legitimacy of executing judicial rulings Third: The importance of executing judicial rulings Fourth: Nature of execution and the jurists’ stance on executing judicial rulings First: Nature of execution Second: Jurists’ stance on executing judicial rulings Second subsection: Executing the judicial ruling First: Conditions for executing the judicial ruling Second: The competent authority in executing the judicial ruling First: The competent authority for execution in Islamic jurisprudence Second: The competent authority for execution in positive law Chapter Two: Mistake of the judge in executing the judicial ruling First subsection: Types of execution First requirement: Types of execution in Islamic jurisprudence First: Voluntary execution Second: Coercive execution Second requirement: Types of execution in positive law First: Voluntary execution Second: Coercive execution Third requirement: Balancing between Islamic jurisprudence and law on types of execution Second subsection: Mistake of the judge in executing the judicial ruling First: Mistake in executing the hudood and ta’zir in Islamic jurisprudence and its consequences Second: Mistake of the judge in executing qisas in Islamic jurisprudence and its consequences Case scenario: Organ transplantation after amputation in hudood or qisas — old and contemporary jurists’ opinions — Islamic Fiqh Assembly decision on transplanting an organ removed in hudood or qisas Third: Mistake in executing the judicial ruling in positive law and its consequences Fourth: Compensation for the accused upon proving innocence Conclusion