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The ulema of usul define Hukm Shari: they so wish, but they are under no
obligation if they do not.
- As a locution or communicaion from the
Law giver concerning the conduct of the 3. Expiation (Kaffarah) of erorneous
mukallaf (person in full possession of his killing
faculties) which consists of demand, an Perpetrator has been given the choice
option or an enactment. either to set a slave freem or feed 60
destitute, or fast for 2 consecutive
A. DEMAND (Talab/Iqtida) months.
the requirement of
- Variously known as: documentation.
and if any of your slaves seek their
a. Sunnah release from you in writing, set
If it is an act which the Prophet them free [fa-katibuhum] if you
has done at one time but know any good in them. The last
omitted at other times. portion of this text indicates an
element of choice which renders
3 types: the command therein mandub.
- Mandub is conveyed in persuasive
Emphatic Supererogatory Sunnah al- language rather than as a command per
Sunnah Sunnah zawa id se.
(Sunnah (Sunnah ghayr Ex.
muakkadah) muakkadah) Whoever makes an ablution for
the Friday prayers, it is good, but if
it takes a bath, it is better [afdal].
Performing this To perform this leads Refers to the - The Hanafis have held that once the
leads to spiritual to spiritual reward acts and mandub is commenced, it is completed
reward from while neglecting it is conduct - Shafiis: The mandub is never turned into
Almighty God not blameworthy. performed by
wajib and always remain sa mandub,
while neglect is the Prophet as
merely a human leaving the person who has started it with
blameworthy but being. the choice of discontinuing it whenever he
not punishable. wishes. There is no duty of belated
Omission is performance (qada) on account of failure
If the entire neither
to complete a mandub.
population of a abominable
locality agree to nor
abandon this blameworthy. 1.3 HARAM (Forbidden)
Sunnah, they are
to be fought for - A binding demand of the Lawgiver in
contempt of the
respect of abandoning something, which
Sunnah.
Ex. Ex. Ex.
may be founded in a definitive or a
The call to Non-obligatory His style of speculative proof.
congregational charity; dress; - Committing it is punishable and omitting it
prayers; Supererogatory His choice of is rewarded.
Attending prayers preceding food - Hanafis: Haram is a binding demand to
congregational the obligatory salah
prayers; in the early and late
abandon something which is established in
Gargling as a part afternoon. definitive proof; if the demand is founded
of the ablution in speculative evidence, it constitutes a
makruh tahrimi, but not haram.
b. Mustahabb
c. Nafl - Variety forms of Haram:
- Mandub occurs also in the Quran in the A. The text may dearly use the word
form of a command which is then haram or any of its derivatives.
accompanied by indications to suggest Ex. Forbidden to you [hurrimat alaykum] are the
that the command is only intended to dead carcass, blood and pork; and God permitted
convey a recommendation. sale but prohibited usury.
Ex. Everything belonging to a Muslim is forbidden to
A command which requires that his fellow Muslims: his blood, his property and his
giving and taking of period loans honour.
must be set down in writing. But
the subsequent portion of the B. Haram may be conveyed in other
same passage provides that if any prohibitory terms which require the
of you deposits something with avoidance of a certain form of
another, then let the trustee conduct.
[faithfully] discharge his trust. This Ex. Slay not [la taqtulu] the life that God has
passage implies that if the creditor made sacrosanct, save in the course of justice;
trusts the debtor, they may forego and devour not [la ta kulu] one anothers
property in defiance of the law.
- An act may be originally lawful but has b. May be identified by words that may
been lawful owing to the presence of convey an equivalent meaning.
certain circumstances. Ex.
Ex. Prophet discouraged any
A marriage which is contracted for prayers at midday until the
the sole purpose of tahlil, in order decline of the sun, with the
to legalise another intended exception of Friday. (The actual
marriage word used in the Hadith is that
Performing salah in stolen clothes the Prophet disliked [kariha al-
nabi] prayers at that particular
time.
- May be beyond the control of the mukallaf Ex. Spouses stipulate in their marriage
(minority being the cause of guardianship contract the condition that they will
over the person and property of a minor.) reside in a particular locality.
- When the sabab is present, whether it is
within or beyond the control if the Rukn vs. Shart
mukallaf, its effect is automatically present
even if the mukallaf had not intended it to Rukn it partakes in the essence of thing.
be. - The law or hukm could not exist in the
Ex. absence of of its rukn.
When a man divorces his wife by a - When the whole or even the part of the
revocable talaq, he is entitled to rukn is absent, the hukm collapses
resume marital relations with her completely with the result that latter
even if he openly denies himself that becomes null and void (batil).
right. Shart does not partake in the essence of hukm,
When a man enters into a contract of athough it is a complementary part of it.
marriage, he is obligated to provide Ex. Bowing and prostration (ruku and sajdah) are
dower and maintenance for his wife each an essential requirement of salah and
even if he explicitly stipulates the partake in the very essence of salah, but ablution
opposite in their contract. is a condition of salah as it is an attribute whose
absence disrupts the salah but which does not
II.2 CONDITION (Shart) partake in its essence.
spouses can proceed from such The ulema are in disagreement as to the
marriage. way in which the will or the hukm of the
Lawgiver regarding the conduct of the
b. Hanafis describe the fasid as mukallaf is to be known and identified.
something which is essentially lawful
(mashru) but is deficient in respect of
an attribute (wasf) as opposed to the 3 VIEWS AS TO THE HUMAN INTELLECT IN
batil which is unlawful (ghayr DETERMINING WHAT IS GOOD AND EVIL:
mashru) on account of its deficiency
in regard to both essence (asl) and 1. ASHARITES VIEW
attribute.
They maintain that it is not possible for human
c. Hanafi approach to the fasid is also intellect to determine what is good and evil in the
grounded in the idea that the conduct of the mukallaf, or to identify the hukm
deficiency which affects the attribute of the Lawgiver concerning the conduct of the
but not the essence of a transaction mukallaf, without the aid of divine guidance.
can often be removed and rectified.
Ex. For human reasoning and judgment are
liable to err.
If a contract of sale is concluded
While an act may be evaluated by one
without assigning a specified price,
person as good, another person might say
it is possible to specify the price
the opposite.
(thaman) after the conclusion of
the contract and thus rectify the
They also maintain that right and wrong are not
irregularity at a later opportunity
determined by reference to the nature of things,
as soon as it is known to exist or as
or our perception thereof, but are determined as
soon as possible.
such by God.
III. THE PILLARS (Arkan) OF HUKM SHARI
When the lawgiver permits or demands an
act, we know that it is right/good, and
3 ESSENTIAL COMPONENTS
when He forbids an act, it is certain that
the act in question is wrong/evil.
III.3 LAWGIVER (Hakim)
The criterion of right and wrong is shar,
not aql.
The ulema are unanimous that the source
This view shows that what the law
of all law in Islam is God Most High, whose
commands is good and what it forbids is
will and command is known to the
evil.
mukallaf either directly through divine
Principle of the rule of law/Principle
revelation, or indirectly by means of
of legality establishes that a man is
inference, deduction and ijtihad.
not required to do something or to
Quran: The prerogative of command
avoid doing it unless the law has been
belongs to God alone.
communicated to him in advance.
No one is either rewarded for an act
Law and justice in the Muslim community
or punished for an omission unless
must derive their validity and substance
he knows its status by means of a
from the principles and values that the
clear communication.
Lawgiver has sanctioned.
When a person happens to be living
Quran: It declares that those who refuse
in total isolation and has never
to accept the authority of the divine law
received the message of Lawgiver,
are considered as unbelievers.
he is not a mukallaf and deserves
neither reward nor punishment.
Prophets, rulers, imam, the master or the
Quran: And we never punish until
father do not partake in the prerogative of
We send a messenger. It indicates
command because their commands do not
that reward and punishment are
constitute binding authority in its own
based on the revealed law, not
right; instead, obedience to such
human intellect.
individuals is founded in the command of
the Lawgiver nor human intellect, or aql,
They also maintain the view that the commands
alone a source of law in its own right.
of the Lawgiver relate to the conduct of the
mukallaf only after the advent of Islam and that Although aql can determine the value
prior to this event, there is no basis for obligation. of truth and falsehood, it cannot
Ex. Infidelity (kufr) is not haram, nor is faith determine or assess the precise value.
(lyman) wajib before the revelation actually
declares it so. Their approach to the question of right and wrong
embodies a utilitarian approach to jurisprudence
2. MUTAZILAH VIEW (followers of Ibrahim in the sense that a good law is that which brings
al-Nazzam) the greatest benefit to the largest number.
They held that human intellect can identify the Right and wrong are evaluated from the
law of God regarding the conduct of the mukallaf viewpoint of the benefit and harm that
even without the mediation of scriptures and they entail to the person who acts upon it
messengers. and to others.
Acts which do not relate to this context
The shar only removes the curtain from are simply regarded as of no consequence;
what the aql could itself perceive, and in they are branded as abath, that is, totally
essence the former is identical with the in vain.
latter.
The intellect (aql) can identify the good 3. MATURIDIS VIEW (followers of Abu al-
and evil in human conduct by reference to Maturidi)
its benefit and harm.
God only asks the mukallaf to do what is Their view has been adopted by the
beneficial and forbids him from doing Hanafis and considered to be the most
what is harmful. acceptable.
A person who acts against the requirement of According to this view, right and wrong in the
reason may therefore be punished and one who conduct of the mukallaf can indeed be
acts in harmony with it may be rewarded. ascertained and evaluated by the human intellect.
A person who has received no But this does not necessarily mean that
communication from the Lawgiver can still the law of God in regard to such conduct is
be considered a mukallaf and be held always identical with the dictates of aql,
responsible on the basis of reason, and his for human intellect is liable to error.
punishment or reward can be determined The knowledge of right and wrong must be
accordingly. based on divine communication.
They asserted that it is impossible for God to This view basically combines the two foregoing
command something which is inherently evil or to opinions, but tends to lean more toward the
prohibit something that is intrinsically good, Asharites in that responsibility of the mukallaf is
which obviously means that shar and aql are to be determined no with the reference to the
always in agreement with one another. dictates of human reason but on the basis of the
law as the Lawgiver has communicated it.
Dissenting opinion:
Al-Ghazali: Aql is capable of discerning good and evil,
When an act is agreeable to one person but this evaluation does not constitute the
and disagreeable to another, it is good basis of reward and punishment, which is
from the viewpoint of the former and evil a matter which is solely determined by the
from that of the latter. Such relativistic Lawgiver.
and circumstantial approach to good and Whatever the Lawgiver has commanded is
evil is totally unacceptable. right, and merits reward, and whatever He
The Shariah evaluates the acts and has forbidden is wrong and its perpetrator
conduct of the mukallaf on an is liable to punishment.
objective plane regardless of whether
they agree or disagree with particular This view also agrees with the Mutazilah to the
interests. extent of its recognition that the inherent values
of things are discernible by human intellect which
Al-Shawkani: can perceive and detect values in the nature of
Certain areas of human conduct are not things.
amenable to rational evaluation.
The Maturidis, however, differ with the The law is, therefore, applied to him, and
Mutazilah in that they hold that no reward or his ignorance of the rules of Shariah is no
punishment can be granted on the basis of aql excuse.
alone. It is sufficient to ensure that the individual
can acquire knowledge of the Shariah
III.2 THE SUBJECT-MATTER of Hukm (al-Mahkum either directly or by asking those who have
Fih) such knowledge.
Denotes the acts, rights and obligations of 2. The act which the individual is required to
the mukallaf which constitute the subject- do must be within his capability, or, in the
matter of a command, prohibition or case of prohibition, be within his
permissibility. capability to avoid.
All commands and prohibitions are
concerned with the acts and conducts of No law may demand something which is beyond
the mukallaf. the capacity of the individual.
Occasionally, the makhum fih does not Relative principles: God does not obligate a living
consist of the conduct of the individual, soul beyond the limits of his capacity, and God
but even then it is related to it. puts no burden on any person beyond what He
Ex. has given him.
The arrival of Ramadan which is the
cause (sabab) of fasting is not an act of No one may be required to do impossible, and it
the individual, but is related to the makes no difference whether the act is impossible
latter in the sense that the effect by its nature or whether it is beyond the capacity
(musabbab) of that cause (fasting) of the individual in view of his particular
consists of the act of the mukallaf. conditions.
When a person is in full possession of his 3. The demand to act or not to act must
capacities and it is possible for him to learn the originate in an authoritative source which
law, he is presumed to know his legal obligations. can command the obedience of the
mukallaf.
The hukm must emanate from God or His This is called uqubah qasirah on account of
messenger. the fact that it inflicts only a financial loss.
- It is mainly due to this requirement that 7) Punishments which lean toward worship,
the proof or evidence in which the law is such as the penances (kaffarat).
founded must be identified and explained. 8) Exclusive rights, in the sense that they
consist of rights alone are not necessarily
2 DIVISIONS OF RIGHTS addressed to the mukallaf, such as
community right to mineral wealth or to
RIGHT OF GOD RIGHT OF MAN the spoils of war (ghanaim).
(haqq Allah) (haqq al-abd)
2. Acts which exclusively consist of the rights
It is called so because of men.
it is beneficial to the
community at large Ex.
and not merely to a Right to enforce a contract
particular individual. Right to compensation for loss
Public right Private right The purchasers right to own the object
Its enforcement is a Its enforcement is up he has purchased
duty of the state. to the person whose The vendors right to own the price paid
right has been to him
infringed, who may or Right of pre-emption (shuf)
may not wish to
demand its To enforce such rights is entirely at the option of
enforcement. the individual concerned; he may demand them or
waive them, even without any consideration.
4 MAIN CATEGORIES:
3. Acts in which the rights of the community
1. Acts which exclusively consist of the Right and those of individuals, are combined,
of God (acts of devotion and worship) while of the former preponderate.
which are the pillars of religion and are
necessary for the establishment of an Ex.
Islamic order. Right to punish a slanderer (qadhif) by reason
of the attack made on honor of one of its
8 varieties of Pure Rights of God (huquq Allah al- members.
khalisah): - Since the Right of God is dominant in qadhf,
the victim of this offence cannot exonerate
1) Rights of God which, consist exclusively of the offender from punishment.
worship, such, as professing the faith - The Shafiis have held on the contrary view
(iman), salah, zakah, the pilgrimage and that qadhf is an exclusive Right of Man and
jihad. that the person so defamed is entitled to
2) Rights which consist of both worship and exonerate the defamer.
financial liability (maunah), such as charity
given on the occasion of id al-fitr, marking All acts which aim at protecting human life,
the end of Ramadan. intellect and property.
3) Rights in which financial liability is greater To implement consultation (shura) in public
than worship, like the tithe that is levied on affairs
agricultural crops. Right of the individual in respect of bayah in
4) Rights of God which consist of financial electing the head of state.
liability but have a propensity toward
punishment, such as the imposition of The basic criterion of distinction between the Right
kharaj tax on land in the conquered of God and the Right of Man is whether it can be
territories. exempted by the individual or not.
5) Rights which consist of punishment only,
like the hudud, that is, the prescribed 4. Matters in which public and private rights
penalties for theft and adultery, and so are combined but where the latter
forth. preponderate.
6) Rights which consist of minor punishment
(uqubah qasirah), such as excluding the Ex.
murderer from the inheritance of his victim. Retaliation (qisas), and
- Since the possession of the mental faculty Receptive LC may either be:
of `aql is the basic criterion of taklif, the law
concerns itself with the circumstances that a. Deficient
affect the sanity and capacity of the
individual, such as minority, insanity, The receptive legal capacity of a child in the
duress, intoxication, interdiction (hajr) and womb is incomplete in the sense that it can only
mistake. receive certain rights, such as inheritance and
bequest, but cannot bear any obligation toward
- 2 types of Legal Capacity: others.
Receptive legal Active legal capacity
capacity (ahliyyah al-ada') b. Complete
(ahliyyah al-wujub)
Capacity to receive Capacity for the When a person can both have rights and bear
or inhere rights and active exercise of obligations. This type of legal capacity is acquired
obligations rights and by every human being as of the moment of birth.
obligations During its infancy and later stages of childhood, a
The ability of the Capacity enables child is capable of discharging, albeit through his
individual to receive him to fulfill rights guardian, certain obligations in respect, for
rights and and discharge example, of maintenance, liability for loss
obligations on a obligations, to effect (daman), and payment for services rendered to
limited scale valid acts and him.
transactions, and
in bear full Active LC 3 possible situations:
responsibility
toward God and his 1. A person may be totally lacking of active
fellow human beings legal capacity, as in the case of a child during
As to criterion of Maturity of intellect infancy or an insane person of any age.
existence:
Life itself
Since neither is endowed with the faculty A person in his death-illness (marad al-
of intellect, no legal consequences accrue mawt) is also deficient of legal capacity, as
from their words and acts. severe illness and fear of imminent death
Ex. affect the physical and mental faculties of
When a child or a madman kills someone the individual.
or destroys the property of another But ordinary illness and other conditions
person, they can only be held liable with which do not impair the intellectual
reference to their property, but not to capacity of a person have no bearing on
their persons. They cannot be subjected, his active legal capacity.
for example, to retaliation, or to any This is partly why Imam Abu Hanifah has
other type of punishment. differed with the majority of jurists by
holding the view that foolishness
2. A person may be partially lacking in active (safahah), indebtedness and carelessness
legal capacity. (ghaflah), do not affect the active legal
capacity of a person. Abu Hanifah refuses
Thus a discerning child (al-sabi to accept these as proper grounds of
almumayyiz), that is, a child between interdiction, as in his view the benefit of
seven and fifteen years of age, or an idiot interdiction in these cases is far
(ma'tuh) who is neither insane nor totally outweighed by its possible harm.
lacking in intellect but whose intellect is
defective and weak, possess a legal
capacity which is deficient. Both of them
possess an active legal capacity which is
incomplete and partial.
The discerning child and the idiot are
capable only of concluding acts and
transactions that are totally to their
benefit, such as accepting a gift or charity,
even without the permission of their
guardians. But if the transaction in
question is totally disadvantageous to
them, such as giving a gift or making a will,
or pronouncing a divorce, these are not
valid at all even it their guardians happen
to approve of them. As for transactions
which partake in both benefit and loss,
they are valid but only with the permission
of the guardian (wali), otherwise they are
null and void.