CHAPTER IV ACTS AND THEIR SHARIA VALUE, RIGHTS AND OBLIGATIONS Jurisprudence (Fiqh) classifies acts according to its

s 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: 1. Natural Acts (hissi) physical acts (afalul-jawarih) or acts of the human body externally manifested by means of the utterances (gaul) or conduct (amal), as well as acts of the mind (afalul-gaib), e.g., intend when not manifested by external act. - External acts that produce cause and effects can be regulated by law, while acts of the mind cannot be the object of regulation as no one except the Divine Providence can find out whats in a persons mind. - Voluntary acts are called tassarufat, which means through ones will and tassarufat usharai are acts according to the Sharia (laws) or lawful acts. 2. 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 prayers, a contract of sale or hire or an offense of sedition and the like. 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 example: a sale, a lease, a gift, etc. ii. Isqadat acts extinguishing rights, such as lease, divorce, manumission b. Akh-barat (information) to describe an event such as testimony (shahadat) of a witness in a court, admission (igrar) which is the testimony against oneself, narration of tradition and the like. c. Itiqadat (acts of faith) **Originating Acts Classified According to Revocability 1. Revocable Acts, those whose legal effect can be undone, e.g., sale, lease. 2. Irrevocable Acts, those whose legal effect cannot be undone, e.g., divorce, manumission and vows. **Acts Classified According to Its Secular or Temporal Purpose or Nature 1. Sahih (valid) those acts that possess all the essential elements (arkan) for its validity and conforms to the necessary condition (sharait) and the law takes notice of it as legally 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. 2. Fasid (Voidable) those acts that suffer from certain essential requirements and therefore are imperfect (fasad) though can be ratified by

complying with the lacking requirements for its validity; or, if its nature (asl) correspond with the law but not its circumstances (wasf) 3. Batil (void) those acts that are prohibited by law and are therefore considered null and void (butian) and without any legal effect 4. Makruh (reprehensible) if its nature (asl) and circumstances (wasf) correspond with the law, but something forbidden is connected with it. **Essential Elements (arkan) of an Act of the Nature of Secular Transaction (muamalat) 1. Juridical Capacity (Ahliatul wajaub) 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 capacity. 2. Legal Capacity to act (Ahliatul ada) which is the power to do act with legal effect; e.g., thus, a gift by an infant is void in law as he lacks legal fitness to make disposition of property without consideration. 3. Consent (Igrar) of the parties freely and consciously given, e.g., as regards consent the general rule is in contract the consent of both parties is necessary; if it is extinguishing a right, consent of the owner of the right is necessary; 4. Object or subject matter which must be legal, e.g., a sale of a carcass is void, so it is not a proper subject matter, not being property according to Muslim law; 5. Compliance with the essential conditions (arkan) of law required for its validity, 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 quality by which person (mukallaf) becomes fit for what he is entitled to (ma lahu) and what he is subject to (ma alaihi). 1. Capacity for the inherence of rights and obligations (ahliatul wajub) 2. Capacity for the exercise of rights and discharge of obligations (ahliatul ada) **Circumstances (Awarid) Affecting a Person Legal Capacity 1. Samawi or circumstances which are the work of providence that is those which are beyond the control of man. 2. Maksuba, that is those which are created by man. Infancy, idiocy, lunacy, forgetfulness, sleep, a fainting fit, illness and death and circumstances of the former class, while ignorance of the truth of the Islamic religion as in the case of the non-Muslims and heretics, or ignorance of the fact or law with respect to a particular matter, slavery, drunkenness, jest, folly, mistake and duress are circumstances belonging to the latter class. **Acts Classified According to its Religious Nature or its Spiritual Effects 1. Fard or (obligatory) 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. Ex: saying of five daily prayer, fasting, pilgrimage, payment of the poor rate (zakat) 2. Wajib, prohibition is established by an authority of a presumptive nature such as maintenance of ones wife, children and poor parents

3. Fardum kifayatum, acts which are obligatory in the Muslim community as a whole such as jihad a religious war 4. Sunnat 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 Prophet or (ummah) his Companions or of the Muslims as body such as to put up a charitable or religious endowment (wagf) 5. Mandub, mustahab or nafl, acts which are superogatory, but commended such as to give alms to the poor. 6. Haram or forbidden, acts abstention from it is considered better than doing it, and the doing of it is prohibited. 7. Makruh or condemned, acts that are regarded as abominable a. Makruhum kirahata tahrimin acts approximately towards unlawfulness b. Makruhum kirahata tanzakin acts towards lawfulness 8. Mubah or permissible, acts the commission or omission of which is regarded with the indifference by the lawgiver such as pledge. **Classification of Acts According to Sharia Value (Hukm Sharai) or Islamic Legal Rule 1. Mandatory (taklifi) rules, that which requires certain action or provides a choice whether to follow it or not. Actions are: a. Obligatory i. Fardu kifaya, collective obligation ii. Fardu ayin, individual obligation b. Forbidden such as not to eat swine c. Commendable (mandum), such as to take pilgrimage to Mecca d. Improper, disapproved or condemned (makruh), such as fornication and usury e. Permissible (mubah) such as sunnat prayers. 2. Declarative (wadi) laws (hukm), which are those rules which were promulgated as the reason, or condition, or a detterent for actions a. Reason (sabab) such as marriage is the cause of right of inheritance b. Condition (shurt) such the requirement that a property should be possessed for one year is the condition for the payment of zakat c. Deterrent or preventive (mani) such as the impurity of a person prevents the validity of the prayer d. License (ruksah) e. Possible (ajima) **Elements of Hukm Sharai 1. 2. 3. 4. Lawgiver (makhum fih or mahkum bih) Hukm the relevant law,; the Quran, Hadith, and Ijma The act to which the Hukm is related (Makum fil or mahkum bih) The subject who performs the act (mahkum alayh)

RIGHT (HUKUK)

The power which a person may exercise over another for the performance of a prestation, or require the compliance of an act, pursuant to a contract or as enjoined by law. Classifications: o Hukuk Allah (Right of God) Acts of Devotion (Ibadat) such as the faith in God (iman) and the obligation therefrom such as prayers, fasting, almsgiving and pilgrimage The right to inflict penalties (hudud, uqubat or punishment)whether complete (kamilah or khalisah) such as the penalty for adultery, theft or defamation Mixed rights which have both character of devotion and penalty such as emancipation of slaves o Right of Man or Private Rights (Hukuk Al-Ibad); may arise from: Contracts Rights arising from family relationship Human right or rights of a person Right to security of a person (nafs) Right to reputation (hurmat) Right to do lawful acts (tasarrufat) o Common or Mixed Rights Common Right, in which the right of the community and of the individual man are combined but, the former is dominant such as the right to punish a person who falsely accuses another of fornication or a woman of adultery is dominantly a private right and the right to prosecute the case belongs to the offended party only 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 (WAJIBAT) - The relation which exists 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 family relation) to control the others action by calling upon him to do or forbear some particular thing. Classifications: 1. Obligation arising from law a. Toward God or the state such as religious obligation of worship, the obligation to pay taxes b. Towards individuals such as those arising out of family relations namely: connubial, parental, filial and kinship and out of constructive trust 2. Obligations arising from declaration of mans (contractual) intention 3. Obligations deriving from mans act infringing anothers right or causing damage or injury to anothers personal safety

**Ways of Extinguishment of Obligation:

1. Specific (ada) a. Perfect (kamil) b. Defective (qasir) 2. Substitutory or non-specific (qada) may be by means of something, which is intelligibly similar (mithlum maagulun) to the subject matter of the right both in appearance (zahirun) and in the essence (bainun)

CHAPTER V THE DAR-UL-ISLAM, DAR-UL-HARB, DAR-UL-AMAN AND CONFLICT OF LAWS Dar-ul-Islam literally means territory of safety; technically, it refers to a country governed by a Muslim ruler and where the Muslim law is in force and religion of Islam is observed. Dar-ul-Harb literally means territory of hostility; a country ruled by a non-Muslim power, and where a non-Muslim law is enforced there, and the Muslim law is not enforced and neither is the Islam religion is observed. Dar-ul-Aman a country where a Muslim and a non-Muslim acquired reciprocal rights. Dhimmi a non-Muslim entering a Muslim country who acquired a status of a permanent resident, and becomes subject to the payment of Kharaj (taxes) and reciprocally gets entitled to the privilege which the Muslim law gives to its own nonMuslim subject. Laws applicable in Litigation between Ahl al-Kitab out with Muslim: 1. In 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 Islamic law or to dismiss the case without any hearing in accordance with the verse in the Glorious Quran. 2. In 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 Islamic law. 3. If a dhimmi woman sues her husband, the judgment will be given according to Islamic law. Conflict of Laws Rules

1. The Muslim law is generally a personal law, that is its incidents remain attached to the individual Muslim whatever the domicile, so long as he continues even outwardly faithful to the Islamic faith. GENERAL RULE: A Muslim is absolutely subject to the laws of Isla, wherever the domicile. 2. Adherence in Islam implies allegiance to the Islamic Commonwealth and consequently such allegiance is the test of the civil rights and liabilities of Muslims. Classifications: 1. Interpersonal conflict of laws within one class race, religion tribe a. Apostasy b. Conversion 2. Interpersonal conflict of law between two classes