Islamic
Jurisprudence (Usul Al Fiqh):
Value of Shariah Rules
By
Shah Abdul Hannan*
Value of Shariah Rules (Hukm
Sharii)
Hukm Sharii is the
communication from the lawgiver (Allah and the Prophet[SM] on the
authority of Allah) concerning the conduct of Mukallaf (on whom law
is applicable, that is, a sane and adult person) which may be in the
form of a demand or an option or only as an enactment.
When the communication is made in the form of a demand or option, the
Hukm is called "Al-Hukm al-taklifi (defining law). If the
communication is made in the form of an enactment of a Cause or
condition only, it is called al-Hukm al Wadi (declaratory law) [see
explanation below ].
Al-Hukm al-
taklifi (defining law) may be in the form of Fard, Wajib,
Mandub, Mubah, Makruh and Haram. According to majority, Fard
and wazib are synonymous. If there is binding demand from the
lawgiver to do something, it is wazib. However, the Hanafi's consider
the demand Fard when both text and the meaning are definitive (qati)
and wazib when either the text or meaning is speculative (Zanni -
because liable to interpretation of meaning or investigation of
authenticity).
Difference between
Fard and Wazib has important consequence. Denial of binding nature of
a command established by definitive proof (Fard by Qati evidence)
leads to unbelief. However, denial of Wazib (according to Hanafi's)
or 2nd category of Fard (according to
the majority) lead to transgression (Fisq). Wazib (and Fard)
has been variously classified into the following :
A consequence of distinction between
quantified wazib and unquantified wazib is that quantified wazib
becomes a liability on the person who has not paid it in proper time.
Mandub (recommended) denotes a
demand not binding on the Mukallaf. Compliance earns spiritual reward
but no punishment is inflicted for failure. This is the difference
between Wazib and Mandub. Examples of Mandub are creation of
charitable endowment (Waqf) giving alms to the poor and attending to
sick. Mandub is also called Sunnah, Nafl and Mustahab.
Sunnah (Mandub) has been clasified into (a) emphatic sunnah
(Sunnah-al Muakkadah (examples are adhan, attending congregational
prayer) and (b) Supererogatory Sunnah (Sunnah Ghair al-Muakkadah).
Examples are Nafl prayers and non-obligatory charity. Neglect of
sunnah al-Muakkadah is blameworthy but not punishable. Neglect of
Sunnah Gair al-Muakkadah is neither blameworthy nor punishable.
Examples of Mandub in the Quran can be seen in verses 2:282,
24:3.
Haram (also known as Mahzur) is
a binding demand of lawgiver to abandon something. The level of proof
required to establish prohibition is the same as Fard (as explained
by early Hanafi Ulama) and of Wazib (as explained by the majority
Ulama of Usul).
The texual evidence
for Haram may occur in various forms such as :
c) It
may be in the form of a command to avoid (Quran - 5:90, to
avoid wine-drinking and gambling).
d) It
may be stated that it is not permissible (La yahilla lakum,
Quran - 4:19)
e) Prohibition
may be proved by punishment provided for a conduct (Quran - verses on
hadd penalties and also verses mentioning punishment of fire in the
hereafter,
Prohibition has also been
classified into :
b) Haram
li Ghayrih (which is forbidden for an external reason such as,
marrying a woman only to make her legal for another man (tahlil).
Makruh is opposite of Mandub. It
is preferable to omit it than to commit it. Committing Makruh
is not liable to punishment or moral blame. This is the majority
view. Hanafi's divide Makruh into : a) Tanzihi and b)
Tahrimi. According to Hanafis the commitment of Makruh Tahrimi
entails moral blame but not punishment. There are traditions
(Hadith) in which the word Kariha or its derivative has occurred.
These are the textual basis for Makruh. (Ref: Dr. Hashim
Kamali, Principles of Islamic Jurisprudence, Islamic Texts Society,
Cambridge, U.K.)
Mubah (also termed
halal and Jaiz) is a communication of the lawgiver which gives option
to the Mukallaf (The Quran - 5:6; 2:235, 2:173). The
Ulama of Usul include "Mubah" under Hukm Shari although
including it under al-Hukm al-Taklifi is on the basis of probability
as there is basically no liability.
Al-Hukm al-wadi (declaratory law) enacts something as a cause
(sabab), a condition (shart) or a hindrance (Mani) to the defining
law. An explicit example is the hadith which says "there is no
"nikah" without two witnesses. Thus the presence of
witnesses has been made a condition of a valid marriage.
Another example is the hadith, "there shall be no bequest to an
heir" which enacts a hindrance (ma'ni) to bequest
(wasiah).
Declaratory law is divided
into (a) cause, (b) condition, (c) hindrance, (d) Azimah, and (e)
Rukhsha. Azimah is the law as the lawgiver had intended in the
first place without any softening for any reason (example : all
Ibadah in normal circumstances). A law is a Rukhsah when the law
embodies the exception to take care of difficulties (example is
granting concession to traveller to break fast).
Rukhsah may occur (a) in the form of permitting a prohibited thing on
the ground of necessity, (b) omitting a Wazib when conformity
to wazib causes hardship (example is the provision for traveller to
shorten salah or not to observe fast during Ramadan and (c) in the
form of validating contracts which would normally be disallowed (for
example, advance sale [salam] and order for the manufacture of goods
[Istisnah], though the goods are non-existent).
There is another kind of Shariah values called Sahih (valid), Fasid
(irregular) and Batil (void). The classification is made on the basis
of compliance with essential requirements (arkam) and conditions
(shurut) of Ahkam. When all these are fulfilled, the act is valid or
sahih. If these are not fulfilled, the act is void or Batil.
The Ulama are in agreement that
Ibadah can only be sahih or batil. In the matter of transactions
also, the majority hold the same view. However, the Hanafis have
validated an intermediate category in transactions called Fasid
(irregular, not Batil) when there is some deficiency in the Shart
(condition). If the deficiency is made up, it becomes Sahih.
The pillars of Hukm Shari are (a) Hakim or lawgiver, (b)
Mahkum Fih or subject matter, (c) Mahkum Alayh, i.e. on whom
law is applied. The source of all law in Islam is ultimately Allah
(6:57; 5:45). Mahkum Fih denotes the acts, obligations of the
Mukallaf which may be in the form of Wazib, Mandub or Mubah.
Mahkum Alaih deals with the legal capacity of the individuals who
bear the rights and obligations imposed by Shariah.
A person acquires active legal capacity when he attains a certain
level of intellectual maturity and competence. Active legal capacity
is only partial in case of a child (because of age) and in case of a
person in death bed.
Hukm Shari has
also been classified into (a) haqq-al-Allah and (b) Haqq-al-Ibad.
Haqq-al-Allah or the rights of Allah is so called not because Allah
benefits from them but because these are beneficial for the community
at large. In other words these are public rights. Worship, Hadud,
Uqubah (punishments), Kaffarah, Jihad etc. are within rights of
Allah.
---------
* Former Secretary, Govt. of Bangladesh and
Adviser, Bangladesh Institute of Islamic Thought
Home - Quran & Hadith – Charity - Family & Health – Islam – Miscellaneous – Matrimonials
Human Rights - Women – Newscenter – Boycott – Chechnya – Palestine - Links