Rights and Duties in Shari'ah and Common Law

Abstract

Does Shari‘ah recognize individual rights, or is it merely a system of obligations? The answer is presented in a form of legal analysis of the Sharī‘ah sources. The analysis rests on the views of the various jurists of the five major schools of the Islamic jurisprudence. Issues that are covered, here, range from jurisprudence, to laws of peace and war, i.e. constitutional law, family, transactions, land and property, succession, torts, and criminal law. The book introduces hukm (legal rules or texts) as the source and/or standard of behaviour and thus of rights and duties. The discussion advances from perspectives of constitutional lawyers and legal philosophers. It explores the basic theories of rights and duties pertaining, will and choice, benefit and interest, individual freedoms and collective good, justice, and equality. Further, rights are analysed as whether titles and interests (claims, powers, liberties, and immunities) are perfect rights or otherwise, whether they are protected by the duty of others or an immunity of the interest holders and so on. Under liberties, fundamental rights and bare liberties are distinguished, both from perspective of choice and absence of duty. The book also discusses various classifications of rights and duties, the concept of obligations, and the theory of correlativeness of rights and duties.