Jurisprudence (Usul Al Fiqh):
Value of Shariah Rules
By Shah Abdul Hannan*
Value of Shariah Rules (Hukm
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 :
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 :
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
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