ISLAMIC Law knew from the outset the distinction between public and private law.
Although there had been no classification of wrongful acts into crimes and torts as such, yet the notion of civil and criminal liabilities were all too manifest in the Islamic doctrine of huquq Allah and huquq al-Ihad.
Al-Taftazani defines haq Allah as that which concerns the public interest of which no single individual has exclusive privilege over.
It is so named due to its importance and overwhelming benefit and connected to Allah as a form of glorification because of the special place it holds and the important functions it serves.
While al-Qarrafi, on the other hand, described it as Allah�s command and prohibition as distinct from huquq al-Ibad which are men�s interests or rights.
In this connection wrongful acts in Islamic Law are in fact classified, not merely by looking at whom the law grants its remedy, private individuals or the public, as is the case with the test adopted in English law, but it is made rather on the basis of right.
After all, the Islamic concept of wrongful acts has at all times been influenced by the notions of rights and duties.
The consequence of this approach is that, in a wider perspective, the exercise of a right is actually regarded as the fulfilment of a duty for if right is good it is not possible to ‘omit it without sin’.
He who claims his property from a wrongful possessor fulfils also a religious duty, for if he just keeps silent, he would allow the wrongful possessor to continue his sin.
Such notions are supposed to be the governing principle in the relationship between an individual Muslim and his fellows as well as his relationship with Allah his Creator and also with the world at large.
As far as life on Earth is concerned Allah as the lawgiver has set certain limits on man’s freedom of action in his daily interaction with his fellows and with other creatures, including the physical world itself.
Such restriction was laid down in a series of divine injunctions sent down to man in the form of laws revealed to His prophets and messengers throughout the history of mankind.
He thus prescribed for man a set of rules governing his relationship with Him as his creator and with his fellows so that he can achieve a true salvation in the hereafter and also a successful life (al-Falah) on Earth.
Because man is supposed to interact at different levels, Allah had sent down rules to regulate such interactions so that a correct balance (tawazun) can be maintained for the sake of good life of man. Because man’s life on Earth is not for no purpose.
Indeed it is very important to recall at this juncture that in Islam men are free to act within the limits set by Allah.
Limits are rather exception to general norms especially with regards to relationship between individuals.
Thus the rule in Islamic law is that an individual is at liberty unless proved to be limited or restricted by a certain established law expressed in the Islamic legal maxim ‘al-asl fi’l ashya wa’l af’al al-ibahah meaning “the principle is that all things and deeds are permissible (unless prescribed otherwise)”.
Starting from liberty as the fundamental basis of the law, Muslim jurists have reached a two-fold conclusion;
1. Liberty finds its limit in its very nature, because liberty unlimited would mean self-destruction and that limit or boundary is the legal norm or law.
2. No limit is arbitrary, because it is determined by its utility (maslaha) or the greatest good of the individuals or of society. Utility, which is the foundation of the law, traces also its boundary and extent.
However if the individual intentionally goes beyond the limit or boundary then such an action is considered a sin as a result of which certain consequences will emerge.
In a nutshell, wrongs are simply acts described as ithm (sin) which is the crossing by man of the limits set by Allah.
The Islamic concept of sin is wide enough to cover all acts which are, in the eyes of the law, illegal for which the sinner is to be held accountable.
Sin is expressed with the use of such terms as ma�siah, zulm, baghy, sayyiah, fahishah, zanb, jarimah, udwan, sharr and idrar.
Some sins are considered so serious that they are said to be a breach of huquq Allah (rights of Allah) that will make the sinner liable for Allah’s displeasure which, in turn, will lead him to uqubah or punishment.
Such can be imposed on him either in his life time in the form of worldly punishment carried out by the state or put in store for him in the Hereafter.
Punishment which are to be carried out in this world are generally termed as uqubah while the one in the hereafter as ‘azab and ‘iqab.
On the other hand there are sins which are considered as violations of rights of men (huquq al-Ibad) whereby the parties involved can settle their dispute through worldly claims to their full satisfaction.
Still there are situations where the cases are such that remedies of some kind need to be rendered to the injured party despite the fact such cases do not involve sin.
In the context of individual liberty as described above, an individual is free to conduct his life within the boundary as set by the lawgiver, but it is important to remember that such a freedom is subject also to the individual exercising his fundamental right in a proper and reasonable manner.
Thus should there be an indication that he has abused the right in question or exercised it in an arbitrary way to the detriment of his fellows or neighbours, he could be made liable for the conduct.
In this regards Muslim jurists of various schools of Islamic law have accepted the concept of abuse of right as a proper restriction to the notion of the absoluteness of right.
Thus from the period of as early as that of Imam Malik, the founder of the Maliki school, we find juristic opinions to the effect that any act that constitutes an abuse of right shall make the person liable for its consequence if damage or loss is caused to others.
The basis for such an approach is found in the Quran itself wherein a number of texts are indicative of the fact that in general, rights need to be exercised in a proper way so that no undue harm is caused to others.
A case was brought to the Prophet by a man from Medina against Sumrah ibn Jundib in which the plaintiff’s claim was that the defendant had encroached his privacy every time he entered a date orchard close to the plaintiff’s living quarter.
The plaintiff claimed that some of the defendant’s trees had extended to his land giving excuse for the defendant to enter the plaintiff’s area for the sake of his trees.
The plaintiff had made offers to the defendant to swap those trees with others so that his privacy and convenience would not be disturbed by any future act of the defendant.
The defendant, however, rejected the offers. The Prophet later urged the defendant to sell the trees to the plaintiff if he still disagreed to do the swapping.
The defendant also disagreed with this suggested solution. The Prophet eventually decided that the trees should be removed and said to Sumrah: “You are causing harm on purpose”.
In another case, Kharijah ibn Hudhafah was one of the foremost and perhaps the most efficient generals of “Amr ibn al-Ass, the governor of Egypt after it was put under the Muslim administration during the time of Umar ibn al-Khattab, the second caliph.”
When a new capital called Fustat was laid out in the suburb of today’s Cairo, and the military operation in the country almost came to an end, the governor in appreciation of Kharijah’s outstanding services appointed him as his chief police officer.
Like other Muslims, Kharijah built for himself a house, but unlike them, he constructed a small apartment on the rooftop of his house. This was regarded by many as an innovation and caused public resentment.
A complaint was lodged with Caliph Umar in Medina. Soon the Caliph’s courier brought this order to the Governor of Egypt:
I have been informed that Kharijah ibn Hudhafah has made a room (on the rooftop of his house), and his motive in doing so is indeed to study the private lives of his neighbours. On receiving my letter, pull down the room.
The fact of the case showed that Kharijah’s neighbours had protested against the ‘watching activity’ of the police officer from the window or ventilators of the said apartment which was claimed to be used for peeping on private affairs of the neighbours.