CHAPTER IV ACTS AND THEIR SHARIA VALUE, RIGHTS AND OBLIGATIONS Jurisprudence ( i!

"# classifies acts according to its secular or temporal or canonical or religious nature and rights and obligation arising from mans relation or dealings. Usul al fiqh science of fiqh Makhum bihi objectives of the law **Mans Act Categories: . Natural Acts (hissi) ph!sical acts "afalul#jawarih$ or acts of the human bod! e%ternall! manifested b! means of the utterances "gaul$ or conduct "amal$& as well as acts of the mind "afalul#gaib$& e.g.& intend when not manifested b! e%ternal act. # '%ternal acts that produce cause and effects can be regulated b! law& while acts of the mind cannot be the object of regulation as no one e%cept the (ivine )rovidence can find out whats in a persons mind. # *oluntar! acts are called tassarufat& which means through ones will and tassarufat usharai are acts according to the +haria "laws$ or lawful acts. ,. Juristic Acts (sharai) aggregate of more than one natural act of one or more persons which the law treats as one act& such as iman or acts of faith or belief& salat or pra!ers& a contract of sale or hire or an offense of sedition and the li-e. a. Inshaat (originating acts) the production of a legal result and on that basis it is again classified into: i. Itibatat (creative acts) acts creating rights. for e%ample: a sale& a lease& a gift& etc. ii. Isqadat acts e%tinguishing rights& such as lease& divorce& manumission b. Akh-barat (information) to describe an event such as testimon! "shahadat$ of a witness in a court& admission "igrar$ which is the testimon! against oneself& narration of tradition and the li-e. c. Itiqadat (acts of faith) **Ori$in%&in$ Ac&s C'%ssi(ied Acc)rdin$ &) Re*)c%+i'i&, . Re*)c%+'e Ac&s& those whose legal effect can be undone& e.g.& sale& lease. ,. Irre*)c%+'e Ac&s& those whose legal effect cannot be undone& e.g.& divorce& manumission and vows. **Ac&s C'%ssi(ied Acc)rdin$ &) I&s Secu'%r )r Te-p)r%' Purp)se )r N%&ure . S%"i" (*%'id# those acts that possess all the essential elements "ar-an$ for its validit! and conforms to the necessar! condition "sharait$ and the law ta-es notice of it as legall! correct "sahih$& in terms of corresponding rights and obligations between the parties thereof. or& if both its nature "asf$ and its circumstances "wasf$ correspond with the law. ,. %sid (V)id%+'e# those acts that suffer from certain essential requirements and therefore are imperfect "fasad$ though can be ratified b!

compl!ing with the lac-ing requirements for its validit!. or& if its nature "asl$ correspond with the law but not its circumstances "wasf$ /. B%&i' (*)id# those acts that are prohibited b! law and are therefore considered null and void "butian$ and without an! legal effect 0. .%/ru" (repre"ensi+'e# if its nature "asl$ and circumstances "wasf$ correspond with the law& but something forbidden is connected with it. 00Essen&i%' E'e-en&s (%r/%n# )( %n Ac& )( &"e N%&ure )( Secu'%r Tr%ns%c&i)n (-u%-%'%&# . Juridic%' C%p%ci&, (A"'i%&u' 1%2%u+# of the parties& which is the legal fitness to be the subject of the legal relation& e.g.& the fetus can be the subject of legal relation& though it has no legal capacit!. ,. Le$%' C%p%ci&, &) %c& (A"'i%&u' %d%# which is the power to do act with legal effect. e.g.& thus& a gift b! an infant is void in law as he lac-s legal fitness to ma-e disposition of propert! without consideration. /. C)nsen& (I$r%r# of the parties freel! and consciousl! given& e.g.& as regards consent the general rule is in contract the consent of both parties is necessar!. if it is e%tinguishing a right& consent of the owner of the right is necessar!. 0. O+2ec& )r su+2ec& -%&&er 1"ic" -us& +e 'e$%' & e.g.& a sale of a carcass is void& so it is not a proper subject matter& not being propert! according to Muslim law. 1. C)-p'i%nce 1i&" &"e essen&i%' c)ndi&i)ns (%r/%n# )( '%1 required for its validit!& e.g.& mahr in marriage. or presence of two competent witness& and consent of the wali to the marriage of a virgin. Legal Capacity (Dhimmah) the qualit! b! which person "mu-allaf$ becomes fit for what he is entitled to "ma lahu$ and what he is subject to "ma alaihi$. . Capacit! for the inherence of rights and obligations "ahliatul wajub$ ,. Capacit! for the e%ercise of rights and discharge of obligations "ahliatul ada$ 00Circu-s&%nces (A1%rid# A((ec&in$ % Pers)n Le$%' C%p%ci&, . S%-%1i or circumstances which are the wor- of providence that is those which are be!ond the control of man. ,. .%/su+%& that is those which are created b! man. 2nfanc!& idioc!& lunac!& forgetfulness& sleep& a fainting fit& illness and death and circumstances of the former class& while ignorance of the truth of the 2slamic religion as in the case of the non#Muslims and heretics& or ignorance of the fact or law with respect to a particular matter& slaver!& drun-enness& jest& foll!& mista-e and duress are circumstances belonging to the latter class. 00Ac&s C'%ssi(ied Acc)rdin$ &) i&s Re'i$i)us N%&ure )r i&s Spiri&u%' E((ec&s . %rd )r ()+'i$%&)r,# in the first degree if it be an act such that the doing of it is regarded as better than the omitting of it and the omitting of it is prohibited. '%: sa!ing of five dail! pra!er& fasting& pilgrimage& pa!ment of the poor rate "3a-at$ ,. 3%2i+& prohibition is established b! an authorit! of a presumptive nature such as maintenance of ones wife& children and poor parents

/. 0.

1. 4. 5.

6.

%rdu- /i(%,%&u-& acts which are obligator! in the Muslim communit! as a whole such as jihad a religious war Sunn%& are acts the doing of which is better that abstention from it& but at the same time such abstention is not forbidden. these are acts based from the practice "traditions$ of the )rophet or "ummah$ his Companions or of the Muslims as bod! such as to put up a charitable or religious endowment "wagf$ .%ndu+& -us&%"%+ or n%('& acts which are superogator!& but commended such as to give alms to the poor. H%r%- )r ()r+idden& acts abstention from it is considered better than doing it& and the doing of it is prohibited. .%/ru" or condemned& acts that are regarded as abominable a. Makruhum kirahata tahrimin acts appro%imatel! towards unlawfulness b. Makruhum kirahata tan akin acts towards lawfulness .u+%" or permissible& acts the commission or omission of which is regarded with the indifference b! the lawgiver such as pledge.

00C'%ssi(ic%&i)n )( Ac&s Acc)rdin$ &) S"%ri% V%'ue (Hu/- S"%r%i# )r Is'%-ic Le$%' Ru'e . Man!at"ry (taklifi) rules& that which requires certain action or provides a choice whether to follow it or not. Actions are: a. 7bligator! i. 8ardu -ifa!a& collective obligation ii. 8ardu a!in& individual obligation b. 8orbidden such as not to eat swine c. Commendable "mandum$& such as to ta-e pilgrimage to Mecca d. 2mproper& disapproved or condemned "ma-ruh$& such as fornication and usur! e. )ermissible "mubah$ such as sunnat pra!ers. ,. Declarati#e ($a!i) la$s (hukm)& which are those rules which were promulgated as the reason& or condition& or a detterent for actions a. 9eason "sabab$ such as marriage is the cause of right of inheritance b. Condition "shurt$ such the requirement that a propert! should be possessed for one !ear is the condition for the pa!ment of 3a-at c. (eterrent or preventive "mani$ such as the impurit! of a person prevents the validit! of the pra!er d. :icense "ru-sah$ e. )ossible "ajima$ 00E'e-en&s )( Hu/- S"%r%i . ,. /. 0. :awgiver "ma-hum fih or mah-um bih$ ;u-m the relevant law&. the <uran& ;adith& and 2jma =he act to which the ;u-m is related "Ma-um fil or mah-um bih$ =he subject who performs the act "mah-um ala!h$

RIGHT (HU4U4#

# #

=he power which a person ma! e%ercise over another for the performance of a prestation& or require the compliance of an act& pursuant to a contract or as enjoined b! law. Classifications: o ;u-u- Allah "9ight of >od$ Acts of (evotion "2badat$ such as the faith in >od "iman$ and the obligation therefrom such as pra!ers& fasting& almsgiving and pilgrimage =he right to inflict penalties "hudud& uqubat or punishment$whether complete "-amilah or -halisah$ such as the penalt! for adulter!& theft or defamation Mi%ed rights which have both character of devotion and penalt! such as emancipation of slaves o 9ight of Man or )rivate 9ights ";u-u- Al#2bad$. ma! arise from: Contracts 9ights arising from famil! relationship ;uman right or rights of a person 9ight to securit! of a person "nafs$ 9ight to reputation "hurmat$ 9ight to do lawful acts "tasarrufat$ o Common or Mi%ed 9ights Common 9ight& in which the right of the communit! and of the individual man are combined but& the former is dominant such as the right to punish a person who falsel! accuses another of fornication or a woman of adulter! is dominantl! a private right and the right to prosecute the case belongs to the offended part! onl! and could not be transmitted upon his death to his heirs. Matters in which public and private rights are combined but the latter preponderates or is dominant

OBLIGATIONS (3AJIBAT# # =he relation which e%ists between two persons of whom one has a private and peculiar right "that is not a mere public or official right or a right incidental to ownership or a famil! relation$ to control the others action b! calling upon him to do or forbear some particular thing. # Classifications: . 7bligation arising from law a. =oward >od or the state such as religious obligation of worship& the obligation to pa! ta%es b. =owards individuals such as those arising out of famil! relations namel!: connubial& parental& filial and -inship and out of constructive trust ,. 7bligations arising from declaration of mans "contractual$ intention /. 7bligations deriving from mans act infringing anothers right or causing damage or injur! to anothers personal safet!

003%,s )( E5&in$uis"-en& )( O+'i$%&i)n6

78 Speci(ic (%d%# a. )erfect "-amil$ b. (efective "qasir$ ,. Su+s&i&u&)r, )r n)n9speci(ic (!%d%# ma! be b! means of something& which is intelligibl! similar "mithlum maagulun$ to the subject matter of the right both in appearance "3ahirun$ and in the essence "bainun$

CHAPTER V THE DAR9UL9ISLA., DAR9UL9HARB, DAR9UL9A.AN AND CON LICT O

LA3S

D%r9u'9Is'%- literall! means territor! of safet!. technicall!& it refers to a countr! governed b! a Muslim ruler and where the Muslim law is in force and religion of 2slam is observed. D%r9u'9H%r+ literall! means territor! of hostilit!. a countr! ruled b! a non#Muslim power& and where a non#Muslim law is enforced there& and the Muslim law is not enforced and neither is the 2slam religion is observed. D%r9u'9A-%n a countr! where a Muslim and a non#Muslim acquired reciprocal rights. D"i--i a non#Muslim entering a Muslim countr! who acquired a status of a permanent resident& and becomes subject to the pa!ment of ?haraj "ta%es$ and reciprocall! gets entitled to the privilege which the Muslim law gives to its own non# Muslim subject. L%1s %pp'ic%+'e in Li&i$%&i)n +e&1een A"' %'94i&%+ )u& 1i&" .us'i-6 . 2n case of litigation between non#Muslim before a Muslim judge& the rule is& where the litigants are dhimmis "non#Muslims residing in a Muslim state$& the judge has a discretion to either judge according to the 2slamic law or to dismiss the case without an! hearing in accordance with the verse in the >lorious <uran. ,. 2n one of the litigants is a dhimmi or harbi and the other Muslim& the judge is obliged to accept the suit and to judge between them according to 2slamic law. /. 2f a dhimmi woman sues her husband& the judgment will be given according to 2slamic law. C)n('ic& )( L%1s Ru'es

. =he Muslim law is generall! a personal law& that is its incidents remain attached to the individual Muslim whatever the domicile& so long as he continues even outwardl! faithful to the 2slamic faith. >'@'9A: 9A:': A Muslim is absolutel! subject to the laws of 2sla& wherever the domicile. ,. Adherence in 2slam implies allegiance to the 2slamic Commonwealth and consequentl! such allegiance is the test of the civil rights and liabilities of Muslims. C'%ssi(ic%&i)ns: . 2nterpersonal conflict of laws within one class race& religion tribe a. Apostas! b. Conversion ,. 2nterpersonal conflict of law between two classes