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Chapter Topics

• Q1: What does al-Hukm ash-Shari mean?

• Q2: Who is legally & morally obligated (Mukallaf)?

• Q3: What is the five categories of Hukm Shari? Define each with examples?

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Al-Hukm ash-Shar’i

• Hukm Shar’i [divine rule] is the speech of the Legislator that is related to the actions of individuals.

• When the speech is made in the form of a demand or option, the Hukm is called Al-Hukm al-taklifi [defining law].

• If the speech is made in the form of an enactment only, it is called Al-Hukm al-Wad’i [declaratory law].

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Examples of Hukm Shari [1]

• The following ayat of the Qur’an illustrates what is a hukm shari:

• [Believers, stand by your contracts and obligations] [Quran, 4-1].

• Allah addresses the believers to fulfill their contracts.

• [Believers, if you take a loan for a known period of time, have a just scribe write it down for you]. [Qur'an, 2-282].

• Allah addresses the believer to write down the contract of their loan.

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Examples of Hukm Shari [2]

• [Cut off the hands of a male and female thief as a punishment for their deed and a lesson for them from Allah] [Q, al-Maidah:38].

• This is a hukm shar’i, because Allah has made theft as a cause (sabab) for the amputation of the hand of a thief.

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Examples of non- Hukm Shari

• The following ayat of the Qur’an illustrate what is Not a hukm shari:

• [Alif, Lamm, Meem. The Romans have been defeated in a nearby land, and after this defeat, they will be victorious. [Qur'an, ar-Rum, 1].

• This ayah deals with the history of nations, so it is not related to the actions of individual.

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Who is Legally and Morally Obligated (Mukallaf)?

• Every Muslim, male or female, who is mature by reaching the age of puberty, and mentally competent is obligated to follow the commands of Allah. For the Prophet Muhammad said: “Allah's commands exclude those who are asleep till he wakes up, and the young until reaching puberty, and the insane till they become mentally competent.”

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• Thus, there are three requirements for legal obligation and moral responsibility:

• 1. Islam; which excludes non-Muslims.

• 2. Maturity (having reached puberty); which excludes infants, babies, and children.

• 3. Sound Rationality, consisting of two parts:

• A. Consciousness; which exclude people in sleep, anesthetic, comatose people, and the like.

• B. Mental competence; which excludes the insane, mentally ill and similar cases.

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Classification of hukm shari

• In the Islamic Divine law the hukm shari in regard to all human behavior can be divided into two kinds:

1. Hukm Tak’lifi .

2. Hukm Wad’i.

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[1] Hukm Tak’lifi•Hukm Tak’lifi is the speech of the

Legislator that demands to perform or refrain from an act or gives a choice.

•The degrees of commands & prohibition:One of the beauties of Islam is that it does not issue a positive or negative judgment like other religions, but each command or prohibition fall into a specific grade. This is of immense benefit for the followers.

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Classification of Hukm Tak’lifi

•Ahukm shari’yyah are not of the same value. A hukm in the Qur’an or the Sunnah sometimes imply an obligation, a recommendation or mere permissibility. 12

Classification of Hukm Tak’lifi

• When the hukm implies an obligation to perform an act absolutely, this act is called Wajib [Obligatory].

• When the hukm implies an obligation to refrain from an act absolutely, this act is called Haram [Forbidden].

• When the hukm implies that the demand to perform an act is not decisive, the act is called Mandoob [Recommended].

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Classification of Hukm Tak’lifi

• When the hukm implies that the demand to refrain from an act is not decisive, the act is called Makrooh [Disapproved].

• When the hukm implies that the demand confers a choice between the performance and omission of an act, the act is called Mubah [Permissible].

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Classification of Hukm Tak’lifi

Degrees of Positive Commands

Degrees of Prohibitive Command

Wajib (Obligatory) Haram (Unlawful)

Mandoob (Recommended)

Makrooh (Disapproved).

Mubah (Permissable)

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Classification of Hukm Tak’lifi according to Imam abu Hanifah

Degrees of Positive Commands

Degrees of Prohibitive Command

Fard [Prescribed] Haraam (Unlawful)

Wajib [Obligatory] Makrooh Tahreemi [Strongly disliked]

Sunnate Muakkada [Emphasised Sunnah]

Isa'at [Detested]

Sunnate Ghair Muakkada [Recommended Sunnah]

Makrooh Tanzihi [Disliked]

Mustahabb [Recommended] Khilafe AwlaMubah (Permissable)

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[2] Hukm Wad’i• 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).

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Questions

• Ahkam or commands of Allah to do or not to do certain acts are not of the same value. They are classified by majority of jurists into five categories. Indicate below the five categories.1.

2.

3.

4.

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Questions

• Allah says in the Qur’an:

1.[Establish salah and pay zakah].

2.[Do not go near the wealth of an orphan].

3.[You can go on hunting after you are out of Ih’ram].

4.[O Believers! Do not ask about things, which if revealed to you, would disappoint you].

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Questions

• 5. [Those who accused married women of committing adultery, but are not able to prove their accusation by producing four witness must be flogged eighty lashes. Never accept their testimony thereafter because they are sinful].

• 6. [Know that Allah has the knowledge of all things].

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Questions

• Indicate against each of the above commands the category to which each belongs and identify which one is hukm tak’lifi and which one is hukm wa’i:

1. ______ wajib _____ _____ hukm tak’lifi _______

2. ________________ _______________________

3. ________________ _______________________

4. ________________ _______________________

5. ________________ _______________________

6. ________________ _______________________ 21

Question

• Is it true that every Legislator’s speech must be undertaken, and there is a punishment for its negligence? Or: It is forbidden to undertake and there is a punishment for doing it?

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