The rights of God and human beings

Perhaps the clearest articulation in Islamic jurisprudence of the distinctive spaces occupied by the sacred and profane is the categorical differentiation between the rights of God (huquq Allah) and the rights of humans (huquq al-‘ibad).

Muslim jurists clearly recognized the exceptionality and exclusivity of the sacred space, and even jealously guarded it from the encroachments of the profane. Ironically, however, it is in dealing with the issue of God’s clear boundaries and limits that the jurists most famously collapsed the sacred and profane into a single space, at least in theory if not in application. In what is known as the hudud penalties, Muslim jurists asserted that there is a category of Divinely ordained punishments that apply to violations committed against a class of mixed rights (huqiiq mukhtalita), which are shared by God and human beings.

As far as the classical jurists were concerned, the hudud, like all matters implicating the rights of God, were better left to Divine vindication in the Hereafter. In most cases, instead of pursuing a hudud penalty, the state proved a lesser included crime under a less demanding burden of proof, and applied lesser penalties, normally involving imprisonment, some form of corporal punishment, banishment, or a fine. Lesser penalties for non-hudud crimes, or lesser included crimes, fell into two categories: qisas (tallion) or ta'ztr (penalties prescribed by the state for offenses against public interest). Qisas was treated as a private recourse and right, where pardon or forgiveness was always preferable, but ta'ztr were thoroughly profane puni­tive measures left to the authority and jurisdiction of the state, applied to protect the public through deterrence. Classical Muslim jurists enunciated various principles regulating and restricting the powers of the state over ta'ztr punishments, such as the precept that no crime is committed unless there is prior notice, and the ban against ex post facto findings of guilt. Muslim jurists stressed that summary executive punishments are impermissible in all cases involving contested questions of fact or law, and that all such cases must be referred to the ju­diciary.⁵⁸ Moreover, many classical jurists placed a limit on the number of lashes that could be imposed upon a defendant, typically with the cap ranging from 30 to 100 lashes, depending on the nature of the criminal offense and the record of the offender. Fundamentally, how­ever, while hudud punishments were greatly circumscribed, throughout Islamic history, what and how ta 'ztr punishments were applied greatly varied from one time and place to another.

By circumscribing the enforcement of the rights of the Divine, the classical jurists of Islam constrained the power of the state to act as God’s avenger.⁵⁹ However, doctrinally the rights of God, as a concept, played an important normative and ethical role in the Shari 'ah dynamics taking place within Muslim societies. The rights of God symbolically represented the moral boundaries of appropriate social mores and values in the public space. This does not mean, as some contemporary reformists have claimed, that the rights of God are equivalent to or substantially the same as public interests or space. Normatively, the Shari 'ah is expected to pervade the private and public spaces by appealing to the private consciences of individuals and to societies as collectivities. But there is one way this could happen and that is through voluntary compliance. For the most part, Islamic jurisprudence invoked the compulsory powers of the state in order to enforce obligations or rights owed to people — not to God. Functionally, Islamic law was thought of, not as a means for empowering the state to act on God’s behalf, but as setting limits to the powers of the state through the imposition of the rule of law. Therefore, the greater legacy of the Islamic tradition deals with questions involv­ing mu'amalat or social intercourses and dealings, or the resolution of conflicts arising from competing claims and interests.