Hukm Shari (Law or Value of Shariah)

Hukm Shari (Law or Value of Shariah)

Introduction and definition. 2

Introduction. 2

Meaning. 2

Definition. 2

Elements of Hukm Shari 2

Brief explanation. 2

Examples of hukm Shari in Quran and Hadith. 3

Types of Hukm Shari 4

I.     Defining Law (al-hukm al-Taklifi) 4

1.     The Obligatory (Wajib, Fard) 4

Kinds of Wajib. 4

a)    Wajib ('ayni) collective (kafa'i) 4

b)    wajib muwaqqat and wajib mutlaq. 5

c)    Quantified wajib (wajib muhaddad) and unquantified wajib (wajib ghayr muhaddad) 5

2.     Mandub (Recommended) 5

3.     Haram (Forbidden) 5

    Makruh Tahrimi 5

Types of Haram.. 6

(a) Haram li-dhatih; 6

(b) Haram li-ghayrih; 6

4.     Makruh (Abominable) 6

Types of Makruh. 6

a)    Makruh Tanzihi 6

b)    Makruh Tahrimi 6

5.     Mubah (Permissible) 6

Types of Mubah. 6

II.       Declaratory Law (al-Hukm al-Wad'i) 7

1.     Cause (Sabab) 7

2.     Condition (Shart) 7

3.     Hindrance (Mani) 7

4.     Strict Law (Azimah) and Concessionary Law (Rukhsah) 7

5.     Valid, Irregular and Void (Sahih, Fasid, Batil) 8

Distinction between Hukm Taklifi and Hukm Wadi 8

Hukm Shari (Law or Value of Shariah)

Introduction and definition

Introduction

By discussing hukm shari, it raises a question that, what is Islamic law? The response deals with Islamic law as a system as well as individual rules. And the study of hukm shari tells us all rules may not create an obligation and some rules are to facilitate the operation of other rules.

Meaning

The Arabic word hukm in its literal sense means a ‘command’, and in its technical sense means a ‘rule’, so the legal rule is called hukm shari.

Definition

The ulema of usul define hukm shari;

·         “As a locution or communication from the Lawgiver concerning the conduct of the mukallaf (person in full possession of his faculties) which consists of a demand, an option or an enactment”.

Or it may also be defined as;

·         “A communication from Allah Almighty related to the acts of the subjects through a demand or option or a declaration”.

Elements of Hukm Shari

Hukm shari in its literal sense conveys the meaning of a rule of Islamic law. The elements of it are;

1.      The Hakim (Lawgiver), which is Almighty Allah.

2.      The Mahkum fih or the act on which hukam operates.

3.      The Mahkum alay or the subject (legal person) for whose conduct the hukm is stipulated.

Brief explanation

A demand is usually communicated in the form of either a command or a prohibition.

When a demand to do or not to do something is established by definitive proof, it is referred to as wajib or haram.

But according to the Hanafi jurists if the demand is not definitive in its meaning (dalalah) or authenticity (thubut), it is wajib, but if it is definitive in both respects, it is fard.

And for the demand to avoid doing something, the Hanafis maintain that if it is based on definitive proof and authenticity, it is haram, otherwise it is makruh tahrimi.  

And when a demand leaves the individual with an element of choice it is known as mandub (recommended).

And if the option is available which leaves the individual at liberty either to do or to avoid doing something, it is called as mubah (permissible).

And an enactment, is neither a demand nor an option, but an objective exposition of the law which may be conveyed in the form of a hindrance (mani)

Examples of hukm Shari in Quran and Hadith

Some examples, the Qur'anic command are;

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`Fulfill your contracts' (al-Ma'idah, 5:1)

For a prohibition;

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'O you believers, let not some people ridicule others, for it is possible that the latter are better than the former' (al-Hujurat, 49:11)

For an option;

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`If you fear that they [i.e. the spouses] would be unable to observe the limits set by God, then there would be no sin on them if she gives a consideration for her freedom.' sura al-Baqarah (2:229)

In Ahadith’s;

The following Hadith also conveys a hukm in which the individual is given a choice. The Hadith reads;

‘If any of you sees something evil, he should set it right by his hand; If he is unable to do so, then by his tongue; and if he is unable to do even that, then within his heart- but this is the weakest form of faith.'

To illustrate a hukm which consists of an enactment (wad') the Hadith is which provides that 'the killer does not inherit'.

Types of Hukm Shari

Hukm shar'i is divided into the two main varieties of al-hukm al-taklifi (defining law) and al-hukm alwad'I (declaratory law) 

Hukm-taklifi (defining law) consists of a demand or an option, which mainly defines the extent of man's liberty of action.

And hukm-wadi (declaratory law) consists of an enactment only, mainly declares the legal relationship between the cause (sabab) and its effect (musabbab) or between the condition (shart) and its object (mashrut).

 

       I.            Defining Law (al-hukm al-Taklifi)

Defining law is a locution or communication from the Lawgiver addressed to the mukallaf which consists of a demand or of an option; it occurs in the five varieties of;

·         wajib,

·         mandub,

·         haram,

·         makruh and

·         mubah

1.      The Obligatory (Wajib, Fard)

For the majority of ulema, wajib and fard are synonymous and convey a demand in respect of doing something and omitting it leads to punishment. But Hanafis have drawn a distinction between wajib and fard.

Fard, when the command to do is a clear and definitive in text e.g. Salah and hajj, and wajib is if command to do something is in a speculative authority e.g. Ahad Hadith. For example reciting Surah Fateha in Salah.

A Muslim is bound to do acts in both, the difference as per Hanafi’s is that who refuses to believe in binding nature of Farz becomes unbeliever and who refuses in case of Wajid becomes transgressor. But as per Imam Gazali and Shafi’s, there is no difference between these two.

Kinds of Wajib

Wajib is sub-divided into at least three varieties.

a)      Wajib ('ayni) collective (kafa'i)

In Wajib Ayni, it is addressed to every person sui juris and cannot be performed by other person on one behalf. E.g. Zakah, Hajj, Salah.

In Wajib Kafai, it consists of an obligations of the community as a whole. E.g. Funeral Prayer.

b)     wajib muwaqqat and wajib mutlaq

Wajib muwaqqat, is one which is contingent on a time-limit e.g. Fasting, and and wajib mutlaq, that is, 'absolute wajib', which is free of such a limitation, e.g. Hajj.

c)      Quantified wajib (wajib muhaddad) and unquantified wajib (wajib ghayr muhaddad)

An examples of Quantified Wajib is Salah, Zakah and Hadd penalties, as are all specified in terms of specific quantity. And examples of Unquantified Wajib is charity to the poor, feeding the hungry and paying dower to wife.

2.      Mandub (Recommended)

Mandub denotes a demand to do something which is not binding. The complement of demand earns spiritual reward but no punishment for failure to perform. E.g. Charity

To illustrate Mandub as occurs in Quran;

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Qur'anic command which requires that giving and taking of period loans must be set down in writing (al-Baqarah, 2:282).

In the Hadith which provides;

“Whoever makes an ablution for the Friday prayers, it is good, but if he takes a bath, it is better”.

3.      Haram (Forbidden)

For majority of Ulema, Haram is a binding command of abandoning something, and committing haram is punishable and omitting is rewarded.

·         Makruh Tahrimi

But as per Hanafi’s if Haram is in definitive proof it is Haram, And if founded in speculative proof, it is called Makruh Tahrimi not Haram. The two differs as in case of wilful denial of Haram leads to infidelity and not in case of Makruh Tahrimi.

For example in Quran;

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God permitted sale but prohibited [haram] usury (al-Baqarah, 2:275).

It may also be conveyed in prohibitory terms, as in Quran;

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Devour not one another's property in defiance of the law (al-Baqarah, 2:188).

It may as well be communicated in command to avoid certain form of conduct. e.g.

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The Qur'anic text which provides that wine-drinking and gambling are works of the devil and then orders the believers to avoid it (al-Ma'idah, 5:90).

Types of Haram

(a) Haram li-dhatih;

That which is forbidden for its own sake, such as theft, murder, adultery.

(b) Haram li-ghayrih;

That which is forbidden because of something else. E.g. performing Salah in stolen clothes.

4.      Makruh (Abominable)

Makruh is a demand to avoid something, but not in strict prohibitory terms. It is opposite of Mandub, omitting is preferable than committing it.

Example, Hadith;

“The most abominable of permissible things in the sight of God is divorce”.

Types of Makruh

The Hanafi’s provides two varieties, Makruh Tanzihi and Makruh Tahrimi and to the latter entails moral blame but no punishment.

a)      Makruh Tanzihi

It is considered abominable for purposes of keeping pure, e.g. neglecting Salah al Nafl. This is nearer to Mubah than to Haram. Its commission is not punished but omission is rewarded.

b)     Makruh Tahrimi

Makruh Tahrimi or abominable to the degree of prohibition is nearer to haram. E.g. wearing gold for men.

5.      Mubah (Permissible)

Mubah is a command which gives option to do or not to do. It may be in form of clear nass, or may state that certain act will not incur sin, e.g. in Quran;

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There is no blame on you if you make an offer of betrothal to a woman (al-Baqarah, 2:235).

Types of Mubah

·         The first is mubah which does not entail any harm to the individual whether he acts upon it or not, such as eating, hunting or walking in the fresh air.

·         The second type of mubah is that whose commission does not harm the individual although it is essentially forbidden e.g. eating the flesh of a dead.

·        The third category of mubah consists of things which were practiced at one time but were later then prohibited.

    II.            Declaratory Law (al-Hukm al-Wad'i)

Declaratory law is defined as communication from the Lawgiver which enacts something into a cause (sabab), a condition (shart) or a hindrance (mani) to something else. E.g. pilgrimage of hajj:

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'Pilgrimage is a duty owed to God by people who can manage to make the journey' (Al-Imran 3:97)

A more explicit example of a declaratory law is the Hadith which provides that;

“There is no nikah without two witnesses”. The presence of two witnesses is thus rendered a condition for a valid marriage.

Similarly, the Hadith which lays down the rule that “the killer shall not inherit”, renders killing a hindrance to inheritance.

There are five varieties of al-hukm al-wadi which are as follows;

1.      Cause (Sabab)

A sabab is defined as an attribute which is evident and constant as the indicator of a hukm and its presence necessitates the presence of the hukm and its absence means that the hukm is also absent, e.g. murder and theft for qisas and a hadd penalty respectively.

2.      Condition (Shart)

A shart is defined as an evident and constant attribute whose absence necessitates the absence of the hukm but whose presence does not automatically bring about its object. For example the presence of a valid marriage is a precondition of divorce.

3.      Hindrance (Mani)

A mani` is defined as an act or an attribute whose presence either nullifies the hukm or the cause of the hukm. For example, difference of religion, and killing, are both obstacles to inheritance.

4.      Strict Law (Azimah) and Concessionary Law (Rukhsah)

A law, or hukm, is an azimah when it is in its primary and unabated rigour without reference to any circumstances which may soften its original force, for example, salah, zakah, the hajj, jihad, etc.

An azimah is the law in its normal state, and rukhsah embodies the exceptions, which brings the ease in difficult circumstances, e.g. concession to travelers to break Fast during Ramadan.

5.      Valid, Irregular and Void (Sahih, Fasid, Batil)

These are Shari'ah values which describe and evaluate legal acts i.e. to evaluate an act according to the requirements (arkan) and conditions (sharut) of the Shariah.

The ulema are in agreement to the effect that acts of devotion (`ibadat) can either be valid or void, valid when they fulfill all the requirements and void when any of these is lacking or deficient.

The Hanafis have, however, distinguished an intermediate category between the valid and void, namely the fasid. When the deficiency affects an essential requirement (rukn), it is null and void, but if the deficiency only affects a condition, it is fasid but not void. The Hanafi approach to the fasid is on ground that the deficiency can often be removed and rectified.

Distinction between Hukm Taklifi and Hukm Wadi

Brief distinction between these two are as follows;

·         Hukm Taklifi aims to create an obligation, hukm wadi does not.

·         Act affected by hukm taklifi is within authority of subject, and not in case of hukm wadi.

But it is pertinent to note here that hukm taklifi and wadi are not necessarily always stated separately e.g. Quranic hukam;

“The thief, male and female, cut off their hands”. Here hukm is obligation cutting hands, the cause is theft (sariqah), and thus both occurs in the same text.