HUKM SHAR’I - THE VALUE OF SHARIAH

INTRODUCTION TO

MABAHITH AL-HUKM AL-SHAR’I

SOURCESOF SHARI’AH

CONCEPTS &ORIGINIJTIHAD

Al-Hakim

Mahkum Alayhi

AL-HUKM

The Schools of Usul al-Fiqh

Origin & Development

Definition and Scope

Secondary Sources

[Non-Textual]

Primary Sources[Textual]

Historical Sketch

Reform

Shafi’i & al-Risalah

Mahkum Fihi

The Lawgiver: The true source from which the law originated الحاكم

مباحث الحكم الشرعيMABAHITH AL HUKM AL-SHAR’I

الحكم

The act on which the hukm operates

المحكوم فيه

The subject (legal person) for whom conduct the hukm

is stipulated.

المحكوم عليه

INTRODUCTION TO

The rule itself

THE DEFINITION / MEANING IMPORTANT POINTS FROM THE DEFINITION TYPES OF HUKM AL-SHAR’I:

a. HUKM TAKLIFI [The Obligation-creating Hukm]

b. HUKM WAD’I [The Declaratory Hukm]

HUKM SHAR’I

THE MEANING Derived from the root word of [حكم ]which literally means

command and technically means rule.

The word hukm is the singular of ahkam. Hukm originally means judgment, judicial decision, or to declare a thing to be true or wrong. Thus, it conveys numerous meanings in different contexts, such as judicial authority, jurisdiction, rule, government, ordinance, statute, judicial norm, legal value and etc.

THE MEANING Hukm Shari’i - Technical Definition

خطاب الله المتعلق بأفعال المكلفين باإلقتضاء أو ” “التخيير أو الوضع

A communication from Allah, relating to the acts of those persons who are subject of law, by way of demanding them to do or not to do ( iqtida’) or giving them a choice for its performance (option or takyir) or declaring a thing to be the cause or condition or impediment or azimah and rukhsah, or valid, invalid or void (declaration or Wadie)

IMPORTANT POINTS FROM THE DEFINITIONIMPORTANT POINTS FROM THE DEFINITION A communication from Allah

The hukm is a communication from Allah, not a mere command. A communication from somebody else cannot be treated as a “hukm”.

The communication is related to the acts of the subjects or Mukallaf.The communication gives rise to the rules to the act of human beings. (commission or omission)

Talab means demand, whether it is the demand for performing or omitting an act, and whether it is absolute and decisive (jazim), or not absolute (ghayr jazim). If the demand (talab) in the hukm is for performing an act is absolute and decisive, it is obligation (ijab or fard), if it is not absolute it refers to recommendation (nadb), If the demand in the hukm is for omitting an act is absolute, it refers to prohibition (tahrim), if it is not absolute, it refers to disapproval (karahan).

IMPORTANT POINTS FROM THE DEFINITIONIMPORTANT POINTS FROM THE DEFINITION The word takyir literally means to give an option. In this definition,

it means to declare the performance or omission of an act equal without giving preference to one over another, and to provide the mukallaf an option (khiyar) or permission (ibahah) to do or not to do a particular act.

The word wad’ie means to place, put down or lay down. In the defination, it stands for the declaration of a thing by the lawgiver to be a cause (sabab) or a condition (shart) or impediment (mani’), azimah &rukhsah, and valid, invalid and void.

Example : Adultery is the cause of the punishment, purification is the condition for prayer, insanity is the impediment to legal obligation such as prayer, fasting and etc.

The above explanation about the definition of hukm shar’I indicates that it comprises both kinds of hukm: Taklifi (defining), and wad’ie (declaratory)

IMPORTANT POINTS FROM THE DEFINITIONIMPORTANT POINTS FROM THE DEFINITION Thus, the hukm may be expressed through a demand

The demand may be for the commission of an act or its omission and it may either expressed in binding/absolute terms or voluntary/non-binding modes:A binding demand for commission of an act: Ijab (Obligation)Example:

qوفوا بالعقود) ذينq آمqنوا أ هqا ال qي qا أ (يO you who believe! Fulfill (your) obligations.

[al-Maidah: 1]

A non-binding demand for commission of an act: Nadb (Recommendation)

Example:(صلوا قبل المغرب، صلوا قبل المغرب، لمن شاء)

It is a communication from the Messenger of Allah which demands a commission of offering 2 rakaat before Maghrib.

A binding demand for omission of an act : Tahrim (Prohibition)

Example:بيال) qاء س qسqة و qاحشqف qانq ه ك qى إن ن بوا الز qقرq q ت وqال )

And come not near to the unlawful sexual intercourse. Verily, it is a Fahishah [i.e. anything that transgresses its limits (a great sin)], and an evil way. [al-Isra’: 32]

It is a communication from Allah which demands an omission of getting near to the unlawful sexual intercourse.The demand has been made in a binding mode.

IMPORTANT POINTS – IMPORTANT POINTS – CONT’DCONT’D

A non-binding demand for omission of an act: Karahah (disapproval): Rasulullah s.a.w said:

(إني ال آكل متكئا)It is a communication from the Messenger of Allah which demands an omission of eating while resting on something.

Rasulullah again said in Hadith:

أ�ن الل�ه حرم عقوق االمهات، ووأ�د البنات، ومنع�ا وهات، لك��م ثالث��ا: قي��ل وقا�ل، وكثرة الس��وال وإض�اع��ة كرهو

الما�ل.Allah forbids children disrespecting your mothers (parent), and forbids from burying your

daughters alive, and forbids taking and giving something that you are not eligible to, and Allah also discourages (makruh) you from three things; talking nonsense, asking so many questions and wasting your property.

 *: , :) ومنع) لك ليس ما تأخذ أن qوهات صاحبه مqنعا إلى يصل أن الحق أمنع

IMPORTANT POINTS – IMPORTANT POINTS – CONT’DCONT’D

IMPORTANT POINTS – CONT’D

The hukm may grant an option or a choice to the subject

A choice may be given for the commission or omission of an act. (Ibahah)

qغوا من فqضل ) qشروا في األرض وqابت qت الصالة فqانت فqإذqا قضيه (الل

Then when the (Jumu'ah) Salat (prayer) is finished, disperse through the land, and seek the Bounty of Allah (by working, etc.) [al-Jumu’ah: 10]

A communication from Allah which offers a choice to the subject that he may perform the act of seeking the means of living at his discretion after Jumaah prayer.

IMPORTANT POINTS – CONT’D The hukm may be expressed through a declaration (Hukm

al-Wad’ie)

The communication declares the relationship of an act with the hukm; whether the act (or a set of facts) is the cause (sabab),

condition (shart), or an impediment (mani’) for the application of the hukm.

Example:Possession of a minimum amount of wealth (nisab): the cause

(sabab) for the obligation of paying zakah.

Having retained the wealth for a hijri year (hawl): a condition (shart) for the hukm – obligation.

The existence of debts against the subject: an impediment/obstacle in the way of fulfilling the obligation of zakah.

TYPES OF HUKM AL-SHAR’I “A communication from Allah, related to the acts of

the subjects through a demand or option or through a declaration”

Two main categories for the hukm:a. Hukm Taklifi [The obligation-creating hukm]

b. Hukm Wad’i [The declaratory hukm]

HUKM TAKLIFI - THE OBLIGATION-CREATING HUKM

The obligation-creating rule can be viewed in Islamic Law from two different perspectives:

a. The perspective of a specialist in fiqh (faqih)b. The perspective of a specialist in usul al-fiqh (usuli)

From the perspective of Usuli, the hukm taklifi is:“The demand of the Lawgiver requiring the subject to perform or omit an act or to have a choice between commission or omission”

From the perspective of Faqih, the hukm taklifi is:The legal attribute of the acts of the subject after the demand of the Lawgiver requiring its commission or omission or to His granting a choice between commission and omission”

Definition of Hukm al-Wad’ie

HUKM WAD’I - THE DECLARATORY HUKM “A communication from Allah, related to the acts of the

subjects through a demand or option or through a declaration”

The definition provided that the communication from Allah may be related to the acts of the subjects in a manner that is declaratory:a. Sabab (Cause or Reason)b. Shart (Condition)c. Mani’ (Impediment or obstacle)

d. Azimah and Rukhsah e.sahih, Batil and fasid

HUKM WAD’I - THE DECLARATORY HUKM (cont’d) Sabab (Cause)

An act of which a Hukm taklifi is invoked whose presence obligates Hukm taklifi and its absence necessitates no obligation.Example:

[al-Baqarah: 185] فمن شهد منكم الشهر فليصمه) )

every one of you who is present (at his home) during that month should spend it in fasting.

There are two types of sabab: a. Within the control of the mukallaf such as the birth or committing theft,b. Beyond his power such as sighting the moon obligates fasting.

Shart (condition): The pre-requisite whose absence necessitates the absence of the Hukm taklifi but its presence does not obligate the hukm, such as wudu’ (ablution) for the prayers.

Mani' (obstacle): A condition or set of facts that prevent the Hukm from being applied

even if the cause is found and the condition is met. E.g.: Difference of religion is the Mani‘ for inheritance and debt

negates the obligation of zakat.

HUKM WAD’I - THE DECLARATORY HUKM (cont’d)

Sahihah (validity), fasid (vititation) and butlan (nullity) An act that is obligatory, recommended or permissible may be

required to be performed in a certain manner by the lawgiver. If the act is performed properly it is deemed as valid (sahih) otherwise it is

null and void (batil).

Fasid….defect on its conditionsBatil…..defect on its pillars

HanafiIbadat …same result

Mu’amalat…different result

'Azimah and Rukhsah (Initial rules and exemptions/concession)

The lawgiver may indicate that one hukm is to be considered as obligation imposed initially as a general rule (azimah).

( qاكعين qعوا مqعq الر qاةq وqارك ك qةq وqآتوا الز qقيموا الصال [43البقرة : ] (وqأ

This may be followed by another rule that is an exemption (rukhsah) from the general rule such as consuming pork is prohibited, but under duress one is permitted to consume it.

qقصروا منq qن ت qاح أ qيكم جن qيسq عqل qرض فqل بتم في األ qرqا ضqإذqو)qانوا qافرينq ك qفqروا إن الك ذينq ك qكم ال qفتن qن ي qة إن خفتم أ الصال

qكم عqدوا مبينا) [101النساء : ] ل

THE DIFFERENCES Hukm Taklifi

The aim:To create an obligation or grant choices

The act that is affected is within the ability of the subject (commission or omission)

Eg: Zina is possible to be avoided

Hukm Wad’i

The aim:To inform either that a certain thing is a cause of, condition for or obstacle to a hukm

The act that is affected may or may not be possible for the subject to commit or omit it.

Eg: The setting of sun as the cause for offering prayer

SUMMARYSUMMARY Al-Hukm al-Shar’i is a name given to the shari’ah norms,

values and principles which are designed to govern the Muslim’s behaviour as willed by Allah Almighty.

al-Hukm al-Shar’i subsumes or includes two sets of divinely inspired rules:

a. Obligation creating rules (al-hukm al-taklifi)A set of standard value to which a Muslim ought to adhere.

b. Declaratory rules (al-hukm al-wad’i)Matters which are designed to facilitate the performance of the first type of hukm in real situations of human life.

NOTE It is not be assumed that the hukm taklifi and the hukm wad’i are

always stated in separate texts.

( qاال منq qك qا ن ب qسq اء بمqا ك qزqا جqهمq qيدي ارقqة فqاقطqعوا أ ارق وqالس وqالس(الله

Cut off (from the wrist joint) the (right) hand of the thief, male or female, as a recompense for that which they committed, a punishment by way of example from Allah[al-Maidah: 38]

The hukm is the obligation (hukm taklifi) to cut off the hand, the cause (hukm wad’i) for it is theft. Both occur in the same text.