A Warm Call from Hizb ut-Tahrir to the Muslims - MyKhilafah.com

26 u A Warm Call from Hizb ut-Tahrir to the Muslims
with which the creditor ' indicates that this theory should be considered
as an agreement based on contract. This definition excludes those
transactions that exclude any form of agreement like the award of a
grant for example, although this would be covered by the right in
personam. Also excluded from this definition are those transactions that
originate from one individual and do not involve anyone else, such as the
transactions they call the 'individualistic will', for example, formation of
share companies and cooperatives, bequests and reward or prize
incentives. In spite of this, the Capitalists classified all these under the
Theory of Liability. Furthermore, there are many other transactions that
occur between different individuals but are not covered by this
definition, such as charitable endowments, the giving of Zakah and
charity and so on, a matter which indicates the invalidity of the
definition. Since the definition of something is always based upon a
depiction of the reality, then either the definition or the reality itself is
false. It is therefore necessary to examine the reality carefully and
accurately to redefine it correctly. The alternative definition of the
Theory of Liability as 'a legal condition according to which…' means
that liability must be considered as a legal issue, although in truth it is a
relationship that has been agreed by civil law and not just a legal issue.
For example, a command issued by the State to its citizens not to cut
down certain forests or just forests in general, is a legal issue in which an
individual or group of individuals are obliged to abstain from
performing a particular action. According to the Capitalist viewpoint,
this issue is considered from the civic law, although it is not. In other
words such a command would be considered from the liability angle
even though it clearly has no connection with liability. This example
highlights the invalidity of this definition.
The view that liability is based on a legal bond between the creditor
and the debtor is also wrong, whether it is described as a personal or a
financial bond. This is because it is not a bond but a human relationship
that emerged due to the human being's endeavour to satisfy his organic
needs and instincts. Therefore, this could be a relationship between two
individuals over an interest (maslahah), or a relationship from one
individual, such as originating divorce, issuing a will and charitable
endowment. The issue at hand is not the existence of two individuals or
the existence of an individual together with a material item. Rather what
should be looked at is treating and solving the individual's problem in a
A Warm Call from Hizb ut-Tahrir to the Muslims u 27
manner that organises his instincts and organic needs and regulates his
relationships. The truth as indicated by the reality of the human being's
existence, is that liability in its own right does not exist. The correct
issue is the relationship between two individuals over an interest that
must be resolved and organised by the law. Events, questions, issues and
problems involving an individual or individuals are what create
relationships and no other factors are involved. It is the law that decides
to consider such a relationship or not, and nothing else. There is no
liability in this matter either in the financial or in the personal sense.
This is because the issue does not relate to a relationship between a
creditor and a debtor, nor does it relate to a bond between an individual
and a material item. Rather the subject matter is summed up in a
relationship that exists between two individuals over a specific interest.
This interest could relate to property or possession, or could exist at
the point of generation or at the point of execution. The relationship is
generated by the interest, i.e. procuring a benefit or removing harm, and
it is organised by the law. So the issue of selling or trading is a
relationship between two people at the point of generation and the
subject matter is property or possession. The incentive of reward for the
individual who finds lost property is a relationship between two people
at the point of execution and it concerns the subject of property.
Marriage is a relationship between two individuals, but the subject at
hand is an interest that is not material. Beside the relationship between
two individuals, there also exist relationships based on the issue of
property or material items such as charitable endowments, the giving of
Zakah and charity, establishing places of worship and setting up public
services like the provision of pastures and drinking water. All this leads
to the conclusion that liability, according to the understanding based
upon Western legislation and from which sprang Western canons and
laws, does not exist either in the personal or financial aspect.
Consequently, liability in the meaning they wanted, which are the
personal rights, does not also exist. Therefore, transactions are not an
authority that a particular individual holds over some material item, nor
it is a bond between two individuals. Rather, it is a relationship between
two people over an interest accepted by the law. This applies to
transactions that happen between two individuals at the point of
generation i.e. a lease or tenancy agreement, or at the point of execution
i.e. reward given to the individual who performs a certain action. It also
applies to transactions that originate from the actions of one individual,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39