AL-HAKIM الحاكمالحاكم

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AL-HUKM AL-SHAR’I

SOURCESOF SHARI’AH

CONCEPTS &ORIGINIJTIHAD

Al-Hakim

Al-Hukm

Mahkum Fihi

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 ‘Alayh

IntroductionThe question of ‘who is al-Hakim? is fundamental question to the science of Usul ul Fiqh (principles of jurisprudence) in Islam. Al-Hakim means ‘The Legislator’, the one who is Supreme, who has the right to make rules and laws, to decide the halal (permitted) and haram (prohibited) for mankind.

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Therefore, In Islam, Hakim or Legislator Refers to Allah SWT Almighty to whom the hukm originates. His will and command is known to the mukallaf either directly through divine revelation, or indirectly by means of inference, deduction and ijtihad.

Allah said in Qur’an: The prerogative of command belongs to God alone.

“إن الحكم إال لله”“The hukm belongs to Allah alone.”

[al-An’am :57]

INTRODUCTION

We are not supposed to obey and follow other than Allah’s guidance and laws. Allah said in Qur’an highlighting those people who were

obeying others beside Allah:ه الل أطعنا ليتنا يا يقولون ار الن في وجوههم ب تقل يوم

سوال ( الر وكبراءنا) 66وأطعنا سادتنا أطعنا ا إن نا رب وقالوابيال ( الس ونا العذاب) 67فأضل من ضعفين آتهم نا رب

) كبيرا لعنا )68-66االحزاب) –( 68والعنهم

The Day when their faces are flipped into the Fire, they will say, "If only we had obeyed Allah and

obeyed the Messenger."67. And they will say, "Lord, we have obeyed our

superiors and our dignitaries, but they led us away from the way.

68. Lord, give them double the punishment, and curse them with a great curse."

Allah also insisted that the right to legalize the law is indeed belonged only to Allah, the creator of universe.

: [ } الكهف } أحدا حكمه في يشرك ،[26والand He shares His power and authority with no one.

} ه الل به يأذن لم ما الدين من لهم شرعوا شركاء لهم }أم] 21الشورى: [،

Or is it that they have partners who set out for them religious laws never authorized by Allah?

حرام} وهذا حالل هذا الكذب ألسنتكم تصف لما تقولوا واله الل على يفترون ذين ال إن الكذب ه الل على لتفتروا

: [ } النحل يفلحون ال [.116الكذب And do not say of falsehood declared by your tongues, "This

is lawful, and this is unlawful," in order to invent lies and attribute them to God. Those who invent lies and attribute

them to God will not succeed.

ما كان قول المؤمنين إذا دعوا إلى ) إنه ورسوله ليحكم بينهم أن يقولوا الل ( سمعنا وأطعنا وأولئك هم المفلحون

( 51النور: )“The only saying of the faithful believers, when they are called to Allâh (the Qur'ân) and His Messenger SAW (hadith), to judge between them, is that they say: "We hear and we obey." And such are the prosperous ones (who will stay forever in Paradise)”.

It is different from the attributes of the kuffar (Jews) as mentioned by Allah in al-Quran:

]93الوا سمعنا وعصينا [البقرة : قThey said, "We hear and disobey.

Divine as the source of LawAgain Allah said in Qur’an: “O you who believe, obey Allah, obey His Messenger and those in authority amongst you and if you differ over a matter then refer it to Allah and His Messenger if you believe in Allah and the Last Day.” ]An-Nisa: 59[

Also Allah (swt) says in Surah al-Ma’idah, “And whosoever does not rule by what Allah has revealed then such are the kafireen (disbelievers).” ]Al-Ma’idah: 44[

He (swt) also says, “Judge between them by that which Allah has revealed and follow not their desires and beware of them lest they seduce you from some part of that which Allah has revealed to you.” ]Al-Ma’idah: 49[

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Divine as the source of Law The majority of jurist agreed that the lawgiver lays down laws in the

interest of man (maslahah)

But, is man free to determine his own interest, or is it predetermined by the lawgiver? A theological question arises as to how men can know that something is good which they should do it or bad that they should avoid it.

The jurists are in disagreement of the way in which the will or the hukm of the lawgiver regarding the conduct of the mukallaf is to be known or identified.

Can we know it by means of our intellectual faculty without the aid and meditation of messengers and scriptures? In other words, is the human intellect incapable of ascertaining the law without divine guidance? The same question arises concerning harmony and concordance between reason and revelation.

Muslim Philosophers, theologians and thinkers have discussed the following questions since the beginning of recorded history: Does humankind by the use of their minds alone have the ability to determine what actions should be deemed good and bad, which actions should be praised and which should be avoided? Or do we require the guidance of the Creator, Allah (swt)?

It is true that the mind has the ability to judge the reality as it is and to conclude certain facts about that which we can sense.

Every human being can agree upon objective facts such as the fact that fire burns, the Middle East contains vast oil resources, that men and women are different physically, the meat of a pig has the ability to satisfy hunger and that the USA is currently the dominant superpower in the world, as these are based upon the reality which everyone can perceive.

However people disagree upon how mankind should act, what should be praised and avoided, what should be legal and illegal. People would agree that fire burns, but different people have various opinions on whether the dead animals should be burned by the use of fire for eating. It is an objective fact to all that men and women are differ physically, however the debate exists regarding the laws that govern the relationships between them, should pre-marital relations be permitted? Should both men and women be given exactly the same roles in society? It is questions such as these that have concerned humanity for centuries.

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THREE MAJOR THEORIES

THE MATURIDITES

&HANAFITES

THE MU’TAZILITES

THE ASHA’ARITES

& THE MAJORITY

OF JURISTS

THEORIES

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THE ASH’ARITES & THE MAJORITY OF JURISTS The laws of Allah can be discovered through revelation alone. It is not

possible for human intellect to determine what is good and evil in the conduct of the mukallaf, or to identify the hukm of the lawgiver concerning the conduct of the mukallaf without divine guidance.

Human reasoning and judgement are liable to err. An act is regarded by one person as good and others as evil.

الشارع قبحه ما والقبح الشارع سنه ما الحسن

Right and wrong are not determined by reference to the nature of things or our perception but are determined as such by God.

The criterion of right and wrong is shariah not ‘aql.

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THE ASH’ARITES – LEGAL EFFECT A man is not required to do something or to avoid doing it unless the

law has been communicated to him in advance. No one is either rewarded for an act or punished for an omission unless he knows its status by means of clear communication.

A person living in total isolation and never received the message of the lawgiver is not a mukallaf and deserves neither reward no punishment.

ى نبعث رسوال ا معذبين حت وما كن“And We never punish until We send a messenger”[al-Isra’ :15]

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The reward and punishment are based on the revealed law, not human intellect.

In another verse the Quran affirms that punishment is imposed only after the people are duly warned, not before that.

نا لوال ا أهلكناهم بعذاب من قبله لقالوا رب ولو أنذل بع آياتك من قبل أن ن أرسلت إلينا رسوال فنت

ونخزى“Had We inflicted on them a penalty before this (revelation)و they would have said: Our Lord! If only you had sent us a messenger, we would have followed your signs”

[Ta Ha :134]

Continue……Human beings incorrectly gave themselves the authority to judge upon the action as good or bad in comparison with things. When they found themselves able to judge upon the bitter thing as qabeeh (abhorrent) and upon the sweet thing as hasan (attractive) and on the disgusting shape as qabeeh and on the beautiful shape as hasan, they thought that they could judge on the truthfulness (sidq) as hasan and the lie as qabeeh, and upon keeping one’s word as hasan and on treachery as qabeeh. Based on this judgement, human beings imposed punishments on the qabeeh action and placed rewards on the hasan action. This judgement is incorrect as the actions cannot be compared to things. The senses can appreciate the bitterness and the sweetness of something and hence the mind can judge upon it. This is contrary to the action which does not possess a matter that human beings can sense so as to judge upon it as qubh or husn. Accordingly, it is absolutely wrong for them to judge upon such an action as husn or qubh from the action itself. Thus they must take this judgement from another source, that is from Allah (swt).

Continue……According to Ashari’s theory: We as Muslims come to conclusive belief in Allah (swt) and the Quran as the final revelation from Allah (swt) based upon the objective reality which everyone can sense. We recognize that we do not have the ability to decide right and wrong for ourselves, rather the interpretation of actions must come from a power beyond the mind ( the Shariah of Allah (swt). The fact that Allah (swt) is al-Hakim (The Legislator) is established by definitive meaning in numerous verses of Quran.

Allah (swt) says: "The right of rule is solely for Allah." ]TMQ Yusuf: 40[

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THE MU’TAZILITES The Mu’tazilite agreed with the majority that the source of all laws is

Allah, but they disagree with them about the identification and discovery of these laws prior to revelation.

Human intellect can identify the law of God regarding the conduct of the mukallaf even without the mediation of scriptures or messengers.

The Shariah only removes the curtain from what the ‘aql could itself perceive, and in essence the former is identical with the latter.

The ‘aql can identify the good and evil in human conduct by reference to its benefit and harm. This is because God only asks the mukallaf to do what is beneficial and forbids him from doing what is harmful.

واإلضرار المنافع

Whatever ‘aql sees as good or right, is also good in the sight of God.

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THE MU’TAZILITES – LEGAL EFFECT اإلنسان ] : كفورا وإما شاكرا إما بيل الس هديناه ا [3إن

نارا للظالمين أعتدنا ا إن فليكفر شاء ومن فليؤمن شاء فمن كم ب ر من الحق وقلراب الش بئس الوجوه يشوي كالمهل بماء يغاثوا يستغيثوا وإن سرادقها بهم أحاط

مرتفقا وساءت [ 29الكهف : ]

ومن لنفسه يهتدي ما فإن اهتدى فمن كم ب ر من الحق جاءكم قد اس الن ها أي يا قليونس ] : بوكيل عليكم أنا وما عليها يضل ما فإن [108ضل

The legal effect of this theory is that a person who has received no communication from the lawgiver can still be considered a mukallaf and be held responsible on the basis of reason, thus he or she will be rewarded or punished accordingly.

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THE MATURIDITES & THE HANAFITES The Maturidites and the Hanafites suggested a middle course.

Right and wrong in the conduct of the mukallaf can indeed be ascertained and evaluated by the human intellect.

عمران ] : آل األلباب ولي أل آليات هار والن يل الل واختالف واألرض ماوات الس خلق في 190إن

ما نا رب واألرض ماوات الس خلق في رون ويتفك جنوبهم وعلى وقعودا قياما الله يذكرون ذين العمران ] : آل ار الن عذاب فقنا سبحانك باطال هذا [191خلقت

However, the law of God in regard to such conduct is not always identical with the dictates of ‘aql, for human intellect sometimes is liable to error.

Hence, The knowledge of right and wrong, reward and punishment finally must be based on aqal and divine communication.

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Point of distinction In the event, there is no divine from Allah, man is subject to

follow his aql, However, it is different from muktazilah, when the maturidiyyah insisted that there is always mercy and taubat provided by Allah swt to his servants.

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CONCLUSION The essential point of this disagreement is whether [reason]

can be used as a source of law for those things on which the Shari’ah is silent.

The fundamental stance of Muslim jurists is that there is no such thing as natural law outside the realm of the Shari’ah. Such a rule needs to be discovered directly or indirectly from the principles of Islamic law.