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Financial Relations

Islam appeared in a society with its own set of morally acceptable and unacceptable norms. Thus, it saw its sole mission as reforming the norms which were worth salvaging. This resulted in a large number of its legal rules being a reaffirmation of the existing norms. It only set forth new rules in cases were the existing ones had to be modified or abrogated.

The underlying principle in all Islamic teachings is the protection of societal interests, a fact that is underscored in the science of kalam (dogmatic theology). This has laid the basis in fiqh for a mode of decision-making (istinbat) called maslahah (general good; public interest).

Haqq (true; real; right) is a Quranic concept which occupies a special place in Islamic fiqh, especially when it comes to elaborating social relations. In fiqh, haqq refers to an inexorable right which empowers an individual to commit certain actions, e.g. dissolve a purchase agreement in case the item is defective. The discussion about the difference between a right and a religious rule (hukm) has given rise to a large number of the books of the same title by Muslim jurists.

At times, in general fiqhi discussions, mention is made of the notion of haqqa ’l-lah (God’s penal ordinances) as opposed to haqq al-nas (the civil right or claim of a human), which provides a means of classification of violations. This implies a twofold possibility: by violating a religious rule an individual may impinge on the right of another individual, or he may disobey a divine commandment, without having trampled on the right of another human being. Based on the notion of divine justice in theological discussions, God does not violate the rights of any individual. Therefore, in cases where the right of an individual is impinged upon, in addition to God’s forgiveness, it is necessary to secure the pardon of the victim, whereas in haqq ’l-lah the only issue is divine forgiveness. That is why, in spite of their optimism regarding God’s forgiveness, in cases of haqq ’l-lah Muslims are weary of haqq al-nas, which plays a major role in their social relations.

The notion of civil responsibility, though not mentioned explicitly in Islamic fiqhi sources, has sufficient grounds in shar`i rules. These grounds may be sought in discussions of compulsory responsibility (diman al-qahri), e.g. an individual’s responsibility in case of usurpation or transgression against another’s property. Another important instance of compulsory responsibility is the accidental destruction or damage to someone’s property. Discussions of this subject in fiqhi works occur under the rules of itlaf (destruction) or tasbib (causation).

It is worth noting that two of the four major divisions of Islamic fiqh are devoted to discussions of `uqud and iqa`at (contracts), which except for discussions of marriage and divorce and a few other minor contracts, deal with various types of ownership. It goes without saying that among various types of contracts discussed in Islamic fiqh bay` (sale) is the most prominent. It is explicitly mentioned in the Quran that God has made bay` lawful (Baqarah 2: 275). All the rules pertaining to `uqud and iqa`at are consensual matters except in a few cases, whose most prominent example is usury, which is mentioned in the same verse (Baqarah 2: 275).

By iqa`at, in fiqhi discussions, is meant insha’i actions which are unilateral and which bring about legal consequences. A financial example of such action is ji`alah in which a person takes on the obligation to perform a specific action in return for a certain fee.

It should be noted that in Islamic shari`ah an insha’i action of the `aqd or iqa` type is not the only basis for constituting ownership. At times, a compulsory transfer may take place based on a shar`i rule. The best example of this type of ownership is inheritance. Based on the rule of shari`ah the moment a person passes away his or her property comes into the ownership of the heirs, without the need for any insha’ (agreement). Needless to say, the division of inheritance takes place only after the financial and religious obligations of the diseased are fulfilled and other issues such the cost of burial and one third of the estate, in cases of existence of a testament, has been calculated. In Islamic fiqh the right to inheritance is established in two ways: through being a blood relation or through marriage. There exists a third method of inheritance in Sunni fiqh called `asbah. The amount of inheritance is contingent upon the degree of lineal proximity to the diseased and is calculated based on a particular schedule, which is the subject of the science of fara’id. This calculation is of increased complexity in Sunni fiqh owing to the notion of `awl and ta`sib.

source: Gorji , Abolghasem "Islam Entry" The Great Islamic Encyclopedia. Ed. Kazem Musavi Bojnourdi.Tehran: The Center of Great Islamic Encyclopaedia , 1989-, V.8 ,pp.416

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