Al-Waadih Fee Usool ul-Fiqh by Muhammad Hussein Abdullah

The action of the Mukallaf in respect to its connection to the Haqq (right) of Allah and to the right of the ‘Ibaad (servants/people) is divided into four categories:

This is the action upon which a general benefit/good is built and for this reason it is attributed to the Lord of the worlds due to the comprehensiveness of its benefit.

It is not permitted to remove this right and it is not right for anyone to give it up (compromise in respect to it) or go against it. These types of Huqooq (rights) include:

- The ‘Ibaadaat (acts of worship): Like the Salaah, Zakaah, Siyaam, Hajj, Al-Jihaad, carrying the Da’wah, Sadaqat ul-Fitr and the Zakaah upon the what is cultivated upon the ‘Ushri land.

- Al-Kharaaj: This represents the taxes upon the Kharaajiyah lands and these are the lands which were opened up by force and were left in the hands of its non-Muslim owners. There is also the Jizyah that is taken from the non-Muslim subjects (Ri’aayaa) of the Islamic State.

- Al-Kaffaaraat (expiations) in all of their forms like the Kaffaarah of breaking the oath sworn in Allah’s name amongst other types. There is also the Khumus of the Ghanaa’im (fifth of the war booty) and the fifth of the Rikaaz. This is treasure buried under the ground and the one who finds it must give a fifth of its value to the State to be added to the revenues of the Bait ul-Maal (treasury). - Establishment of the punishments that have been specified and set by the Shar’a and these are the Hudood like the Hadd of Zinaa, the Hadd of Saraqah (theft), the Hadd of drinking alcohol and the Hadd of the one who blocks the road to steal (highway robber) … The Messenger of Allah (saw) said:

This is the action that has within it a specific Maslahah (interest/benefit) for the individual. This is like the settling of the debt or blood money, guaranteeing the damaged or broken item and gifts. If the ‘Abd (servant/person) wishes, this type of right can be dropped or let go and if he wills he can fulfil it because the Shaari’ has given the human the right to conduct himself freely in his right as he wishes within the remits of the Ahkaam Ash-Shar’iy.

3 – That in which the Haqq of Allah and the Haqq of the ‘Abd come together whilst the Haqq of Allah dominates. Example: The Hadd of Al-Qadhf (slanderous accusation against a woman’s honour) as it contains within it a deterrent for criminals and the preservation of the peoples’ honours. This punishment falls under that which is from the Huqooq (rights) of Allah.

From another angle, in the occurrence of this punishment there exists a Maslahah Khaassah (specific benefit or interest) for the one who has been slandered as it clears the name, integrity and repels the taint or dishonour. Therefore, this punishment also includes a right for the ‘Abd and a Maslahah for him or her.

Despite that the Haqq of Allah is dominant and for that reason it is not permissible for the one who has been accused or slandered (Al-Maqdhoof) to drop the punishment from the Qaadhif (slanderer) and that is because the Haqq of Allah does not fall as a result of the servant’s wish for it to be dropped.

4 – That in which the Haqq of Allah and the Haqq of the ‘Abd come together whilst the Haqq of the ‘Abd (servant) dominates. Example: Al-Qisaas (law of retribution) against the intentional or deliberate killer. Within the Qisaas there exists life and a security for the life of the people and the preservation of that security. This then is representative of the Maslahah Al-‘Aammah (the general interest and benefit) which the Haqq of Allah is reflected in.

Al-Qisaas, from another angle, heals the hearts of the family of the one who was killed and removes their anger and hatred towards the killer. From this angle it represents a Haqq (right) of the ‘Abd (servant/person). However, the Shaari’ (Legislator) has provided the Waliy (guardian) of the killed person the right to pardon the killer or to find the receipt of blood money sufficient. This indicates that that the Haqq of the ‘Abd is more dominant in respect to the ruling of Al-Qisaas.

The man-made laws that were applied over the Muslims in the absence of the Islamic State followed a path opposing what was mentioned above. So they made Al-Qisaas (retaliatory punishment) of the killer a right belonging to the society and the affair of the killer was delegated to the ruler. If he wished, he would kill him and if he wished he would pardon him without any consideration being given to the Waliy of the killed person, in respect to him pardoning the killer or not pardoning him. The man-made law also made the punishment of Az-Zinaa a private Haqq (right) and so the Zinaa in accordance to these laws is not considered to be a crime unless it was by way of compulsion or force and then the punishment in respect to it would be from the private right. The claim is not raised except from her husband and he has the right to stop its procedures. Then if judgment is passed against her, he has the right to stop or prevent the implementation of the ruling.

There is therefore a wide gap and difference between the Hukm of Allah and the Hukm of people