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Unformatted text preview: e) Rights which consist of punishment only, like the hudud, that is, the prescribed penalties for theft and adultery, and so forth. f) Rights which consist of minor punishment (`uqubah qasirah), such as excluding the murderer from the inheritance of his victim. This is called `uqubah qasirah on account of the fact that it inflicts only a financial loss. g) `Punishments which lean toward worship', such as the penances (kaffarat). h) Exclusive rights, in the sense that they consist of rights alone and are not necessarily addressed to the mukallaf, such as the community right to mineral wealth or to the spoils of war (ghana'im). Nazariyyah al-Haqq', p.179; Abu 'Id, Mabahith, p. 141ff.] Secondly, acts which exclusively consist of the rights of men, such as the right to enforce a contract, or the right to compensation for loss, the purchaser's right to own the object he has purchased, the vendor's right to own the price paid to him, the right of pre-emption (shuf ), and so on. To enforce such rights is entirely at the option of the individual concerned; he may demand them or waive them, even without any consideration. Thirdly, acts in which the rights of the community and those of individuals, are combined, while of the two the former preponderate. The right to punish a slanderer (qadhif) belongs, according to the Hanafis, to this class, by reason of the attack made on the honour of one of its members. Since the Right of God is dominant in qadhf, the victim of this offence (i.e. the maqdhuf) cannot exonerate the offender from punishment. The Shafi`is have, however, held the contrary view by saying that qadhf is an exclusive Right of Man and that the person so defamed is entitled to exonerate the defamer. All acts which aim at protecting human life, intellect and property, fall under this category. To implement consultation (shura) in public affairs is one example, or the right of the individual in respect of bay'ah in electing the head of state. According to the Maliki jurist al-Qarafi, all rights in Islam partake in the Right of God in the exclusive sense that there is no right whatsoever without the haqq Allah constituting a part thereof. Thus when a person buys a house, he exercises his private right insofar as it benefits him, but the transaction partakes in the Right of God insofar as the buyer is liable to pay the purchase price. The basic criterion of distinction between the Right of God and the Right of Man is whether it can be exempted by the individual or not. Thus the vendor is able to exonerate the purchaser from paying the price, and a wife is able to exonerate her husband from paying her a dower (mahr), but the individual cannot exonerate anyone from obligatory prayers, or from the payment of zakah. Haqq', p. 181.] Principles of Islamic Jurisprudence ~ Kamali 303 [67. Abu Sinnah, [68. Abu Sinnah, Nazariyyah al- Fourthly, there are matters in which public and private rights are combined but where the latter preponderate. Retaliation (qisas), and blood-money (diyah) of any kind, whether for life or for grievous injury, fall under this category of rig...
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- Spring '13