. J "" (cont.)

According to the Shafi' ees and Malikis, such a divorce is not valid or, in essence, has not occurred. One of the proofs they use for their position is this hadith, "Allah has pardoned for my Nation [what is done] mistakenly, out of forgetfulness or under duress." In other words, according to them, the man who stated those words of divorce is neither held accountable for that action in the Hereafter nor is he accountable for it in this life. Hence, the divorce, in fact, never happened. According to the Hanafis, however, that argument is not valid. True, the man will face no consequences for his action in the Hereafter. The worldly ruling, though, is that the divorce did take effect and that the hadith under discussion here is irrelevant because it is only concerned with what will occur in the Hereafter. They, on the other hand, argue on the basis of an analogy between the one who is coerced to divorce his wife and the one who divorces his wife in jest. The divorce said in jest is a valid and enforced divorce, as is clear in a hadith of the Prophet (peace be upon him). However, the person who said the divorce in jest did not actual truly intend to divorce his wife. He is, then, akin to the one who is coerced to divorce his wife. Since the divorce said in jest is valid, the divorced said under duress must also be valid.2 Different Types of Rights Perhaps the answer to the above question, "Given no other evidence, does this hadith imply that both the sin and worldly ruling of an are overlooked or just the sin?" may be answered by viewing the question from a different angle. In this approach, one emphasizes the type of right involved. Based on the type of right, one may say that just the sin or both the sin and worldly ruling are overlooked. In Islamic law, there are different types of rights. There are the rights of Allah upon His servants, such as prayers, fasting and so forth. With respect to the deeds that violate those rights, a general principle is that if the person has faith, any act he performs without complete intention or which he cannot 1 lbn al-Najaar, vol. 3, p. 1 98; Shihaab al-Deen al-Hanbali, p. 91. In many places in al­ Musawwadah it states that such is the opinion of some of the Shafi'ees. 2 See Saalih, Ta/seer al-Nusoos, vol. 1 , pp. 568-579. Saalih himself concludes that the opinion of the majority (Shafi'ees, Malik.is and Hanbalis) is the stronger opinion on this question as they have ample evidence to support their viewpoint (in addition to the hadith under discussion here). Hadith #39: "Allah has pardoned . . . " perform due to incapability are forgiven and pardoned by Allah. This is, of course, related to Allah's encompassing and great mercy and forgiveness. There are other rights that are termed, "the rights of Allah,'' but in reality they are referring to the rights of the community as a whole as opposed to the rights of the individual. The general principle is that these rights are not to be violated. However, if they are violated by mistake or something similar to that, they may be overlooked to some extent depending on the exact situation.1 Examples of these types of rights are the prescribed punishments, such as the punishment for adultery and theft. These are the "rights of Allah" and no one has the right to lessen those punishments once the conditions for their enactment have been fulfilled. The last types of rights are the rights of the individuals themselves. Under no circumstances is it allowed for one person to violate the rights of another person. If one person does so, even if Allah does not hold him sinful for his act, he still must undo the wrong that he has done to the other person. 2 When looked at in this way, there seems to be general agreement among the scholars that the rights of humans cannot be violated even in the case of mistake, forgetfulness or coercion. In other words, if such rights are violated, the worldly ruling is not "overlooked" and there must be some form of compensation done for the personal right that was violated. However, this agreement among the scholars may be based on other evidences, such as the numerous hadith stressing the inviolability of people's lives, wealth and honor. It may also be based on general principles of public welfare which would be at risk if people were not held responsible for the acts they committed due to mistakes or out of forgetfulness. Also when it comes to the rights of the community, the second category of the "rights of Allah" discussed abo.ve, such rights are not completely overlooked when acts are done by mistake, out of forgetfulness or due to coercion. It is true that the legal punishments are not meted out.