The research context:
History of tort law
Tort law originated a century ago when Oliver Wendell Junior examined the history of negligence in the legal system, which later resulted in the theory of tort. He concluded in his study that the duty to exercise care in England was faulty. He noted that most plaintiffs suffered overwhelmingly when another party or entity caused a significant level of damage to them. Similarly, Morton J. Horwitz reexamines the history of negligence and found out that many jurisdictions did not understand negligence as carelessness or fault (Kaczorowski). Since its discovery, many nations such as the USA, Ireland, and England, among others have applied the use of this legal direction in all their court systems. However, a country like Saudi Arabia greatly lacks the application of this legal method. Therefore, with regard, this Ph.D. research will be a comparative study between the common law in English and Sharia Law. The study will focus on the application of common law in Ireland and the application of Sharia law in Saudi Arabia.
The area of study will be Tort law, in particular, the size of awarding in tort cases. This area of law because there are many types of research about administrative liability and criminal liability accompanied by separate course to teach them in Saudi Arabia. However, civil liability has not been awarded the much attention it deserves based on its importance along various legal lines. Many law schools and legal researchers put more weight on administrative and criminal liability. They have proper codes for any wrongdoing that takes place in these areas, but have not come up formulated any working code for civil liabilities in the country. As usual, the lack of an adequately enacted code of conduct for civil liability cripples the law in Saud Arabia.
As such, legal professional’s in the country needs to give major importance to tort laws in the nation just as much as they award it to criminal and administrative laws. It is important to understand that tort laws or civil liabilities seek to grant remedies on issues such as medical negligence, defamation, nuisance, and other wrongdoing that are civil but not criminal in nature (Hinds 1). Therefore, lack of legal codes of conduct that outlines the type of punishments awarded to such offenders means that they walk scot-free all the time.
The onset of the research will focus on civil liability in general and its history. I will also mention why Saudi Arabia did not codify this area of law. Then, the study will illustrate the definition of damages because legal procedures do not conduct any awarding or punishment if there are no damages caused. Therefore, the study will dedicate a whole chapter that examines the act of awarding liability to the offender. The study will then deliberate more on the compensation (the awarding) which is the core of the research. Since the whole point of tort law is to make the injured or offended party whole again, this chapter will explain the size of awarding and will address the research questions and issues. It will also mention some cases that have unique awarding. Lastly, the study will address the methods that the judges can use to determine the size of the awarding as per the damage caused. The research will hypothetically assume that there are a minimum and maximum amount for the compensation and study the pros and cons for this theory.
The available conducted study so far found some Arabic research about tort law. However, it addressed the compensation (awarding size) only from the Sharia law’s perspective. It did not have or illustrate any comparative study between the Sharia law and common law about tort law. Therefore, the findings will enrich the research.
The research questions
1-Does the tort system overpay large claims?
2-Are awards for pain and suffering capricious and arbitrary.
3-Do awards for pain and suffering play an increasing role in the tort system.
Answering these questions will contribute in saving the plaintiff money so he or she will not waste time on court procedures without getting achieving the right results at the end of the case. Answering these questions will shed more light on the applicability of the tort law in Saudi Arabia. It also means that if the plaintiff knew from the beginning that such types of case are under compensated, then they won’t even bother to waste their time in hiring a lawyer to win a case that has little amount of awarding. It will also save the court time. Time-consuming.
The importance of the proposed research
First, while I was working on LLM research, I find out that most of the comparative study between Common law and Sharia law revolve around Commercial law. Similarly, there were only a few books that compared property law, but almost none in tort law. The main reason behind that is that tort law is uncodified in Saudi Arabia, which leaves the size of awarding to the judge’s discretion (Hudson and Ben 44). Since Saudi Arabia is moving forward towards codifying civil law (in Saudi Arabia civil law include: Tort law, Family law, Property law, Insurance law, and contract law) I want to codify some of tort law by deriving the laws from the main sources of Sharia law which are Quran and Sunnah and write them as a statute. It will be vital to adopt some ideas from the Irish law. From my perspective, using my Ph.D. research to participate in codifying the law will add more value to the research. If the supervisor allows me to explain in a chapter or even a paragraph to explain what holds Saudi Arabia from codifying their civil law, this would enrich the research (wordpress.com).
Third, the size of awarding varies in Saudi Arabia. In some cases, the judge may award with millions. In others, he might dismiss the case and not award the plaintiff with anything claiming that the case will be a waste of the court’s time and open unclosed door to the court to accept ridicule cases. I want to discover during my research if the Irish legal system faced the same dilemma or not. Fourth, this research paper will focus on court holding in different cases to decide what would usually effect the awarding by increasing it or decreasing it (Gruggemeier 15).
Research methods
The research study will use qualitative research methods. This approach was chosen because it provides the researcher with the ability to conduct survey and interviews with various legal practitioners concerned with the Islamic and Irish laws. The survey and interview will provide the researcher with an opportunity to have a one on one conversation with the interviewees with the aim of collective quality primary data. The researcher will also refer to existing secondary materials such as books, journals, and reports to corroborate the findings and complete the study.
Timetable for the research
months 1-3 reading the theoretical material and developing a theoretical framework
months 4-6 reading and analyzing Irish materials
months 7-9 reading and analyzing Saudi materials
months 9-12 writing up the thesis
Works Cited
Gruggemeier, Gert. "Modernizing civil liability law in Europe, China, Brazil and Russia: texts and commentaries." Cambridge: Cambridge University Press, 2011.
Hinds, Anna Louise. The duty of care in Irish tort law. Dublin: Legal Framework Formation, date.
Hudson, Diana and Cowling Ben. "Construction in Saudi Arabia: decennial liability." Asian- Mena Councel (2014): 44. <Web>.
Kaczorowski, Robert. "The common law background of the nineteenth-century tort law." Journal of Law (1990): 1-75.
wordpress.com. Irish law: a student's guide. <Web> https://lawinireland.wordpress.com/tort- law/. Legal report for students. Dublin: Irish Law Society, 2016.
