Originally Posted by Virtual Shariah Court

Under the English legal system, which Pakistan inherited from the British Raj, wrongs are divided into two broad categories: civil and criminal. The former is violation of a private right while the latter is violation of a public right. Breach of contract is violation of a private right in personam, while tort is violation of a private right in rem. Sometimes a wrong is deemed violation of both a private right in rem as well as a public right. Thus, at the same time it is both a tort as well as an offence – the so-called “felonious tort”.

Islamic law has an altogether different classification of rights. Thus, it divides the rights into three kinds: rights of individual, rights of community and rights of God. All the punishments in Islamic law are linked to one or more of these rights. Thus, hadd punishments are linked to the rights of God; ta‘zir punishments are linked to the rights of individual; while siyasah punishments are linked to the rights of the community.
Sometimes a wrong is considered violation of the joint right of God and of individual. In such a joint right, sometimes the right of God is predominant – such as in case of the hadd of qadhf – while sometimes the right of individual is deemed predominant – such as in case of qisas.
Modern scholars working on Islamic criminal law have generally considered the right of God synonymous with the right of the community. Perhaps, they were influenced by the binary division of English law – public and private. This has caused several problems. For instance, the government cannot commute or pardon a hadd punishment. The reason for this rule, according to the jurists, is that ╒add is the right of God. Had the right of God been the same as the right of the community, the government would have the right to pardon the hadd punishment.
Another confusion, particularly in Pakistani law, is that the spheres of ta‘zir and siyasah have been merged together. Thus, the punishments, which the hanafi jurists mentioned under the doctrine of siyasah have been called ta‘zir in Pakistan.
The Islamic criminal justice system as envisaged by the jurists consists of three spheres: hadd, ta'zir and siyasah, relating to the rights of God, of individual and of community, respectively. In case of qisas, the first and the second spheres overlap with each other. Now, when this system is compared with the English legal system, the first thing that strikes the mind is that hadd, ta‘zir and qisas are not properly called “offences” because offence in English law is violation of the right of the community. In other words, the nearest match in Islamic law for the English law concept of “offence” is siyasah.
It is really surprising, then, that the modern discourse on Islamic criminal law has generally ignored the doctrine of siyasah and all this confusion and discussion is being generated.