DISCRETIONARY RIGHTS IN ISLAMIC PERSPECTIVE – A CRITICAL ANALYSIS

Abstract

In the present age, different kinds of rights have come up and the same are traded too in markets such as copyrights, trademarks, patents etc. This issue came under discussion by Fiqhi scholars of modern times for quite some time whether these rights can be branded as ‘money’ or not. And, then, again it is to be ascertained as to their sale and purchase. This problem did not however exist for Fiqhi scholars of olden times in its universality as it is found today. Yet they spoke of rights and the acceptance of taking reward, which could be visualised and was in vogue in their time, such as ‘right of pre-emption’, ‘right to pass by’ and the ‘right to take water’ etc. So some Fiqhi scholars have favoured taking reward for them, while others have thought it otherwise. The Fiqhi scholars of present times have put the present-age rights – as are in vogue ‑ such as copyrights, patents, trademarks and geographical indications in the category of ‘Discretionary Rights’. To ascertain whether the said rights could be treated as saleable or non-saleable, and how fair it was to note as to their sale-and-purchase, it seems appropriate to consider and analyse the decisions by primitive Fiqhi scholars in regard to the rights of their times before reaching a conclusion. As per the terminology used in present times, such as copyrights, patents, trademarks etc. which the contemporary Fiqhi scholars have included in discretionary rights and done discourse on them. So, it seems appropriate to dilate upon Discretionary Rights and its kinds here.