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CHAPTER 17: HUKM SHARI


(Law or Value of Shariah)

The ulema of usul define Hukm Shari: they so wish, but they are under no
obligation if they do not.
- As a locution or communicaion from the
Law giver concerning the conduct of the 3. Expiation (Kaffarah) of erorneous
mukallaf (person in full possession of his killing
faculties) which consists of demand, an Perpetrator has been given the choice
option or an enactment. either to set a slave freem or feed 60
destitute, or fast for 2 consecutive
A. DEMAND (Talab/Iqtida) months.

- Either: 4. If any of you sees something evil, he


a. Command demands that the should set it righgt by his hand; if he is
mukallaf do something. unable to do so, then bi his tongue;
b. Prohibition requires him to avoid and if he is unable to do even that,
doing something. then within his heart but this is the
weakest form of faith.
- May either be binding, which leaves the
mukallaf with no choice but to conform, or C. ENACTMENT (Wad)
may not be binding.
- When a demand to do or not to do - Neither a demand nor an option, but an
something is established by definitive objective exposition of the law which
proof (dalil qati), it is referred to as wajib enacts something as a cause (sabab) or a
or haram respectively. (majority views) condition (shart) of obtaining something
else; or it may be conveyed in the form of
Hanafi jurists views: a hindrance (mani) that might operates an
obstacle against obtaining it.
- Wajib if text which conveys such a - Example: The killer does not inherit.
demand is not definitve in its meaning
(dalalah) or authenticity (thubut). 2 MAIN VARIETIES OF HUKM SHARI
- Fard if it is definitive in both respects.
- Haram as for the demand to avoid doing 1. DEFINING LAW (al-hukm al-taklifi)
something, if it is based on definitive proof
in terms of both meaning and authenticity. - Consists of a demand or an option
- Makruh tahrimi opposite - It mainly defines the extent of mans liberty
- Mandub (recommended) when a of action.
demand is not utterly emphatic and leaves - May be described as a
the individual with an element of choice. locution/communication from the
- Example: O you believers, let not some Lawgiver which demands the mukallaf to
people ridicule others, for it is possible that do something or forbids him from doing
the latter are better than the former... something, or gives him an option
between the two.
B. OPTION (Takhyir)
- 5 categories:
- It leaves the individual at liberty either to 1. Wajib (obligatory)
do or to avoid doing something. 2. Mandub (recommended)
- Example: 3. Haram (forbidden)
1. To hunt when you have come out of 4. Makruh (abominable)
the state ihram (sacred state entered 5. Mubah (permissible)
into for the purpose of performing the
hajj pilgrimage) 2. DECLARATORY LAW (al-hukm al-
wadi)
2. If you fear that they would be enable
to observe the limits set by God, then - Enactment only
there would be no sin on them if she - Declares the legal relationship between
gives a consideration for her freedom. the cause (sabab) and its effect
Married couple are given the choice to (musabbab) or between the condition
incur a divorce by mutual consent (khul) if (shart) and its object (mashrut).

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CHAPTER 17: HUKM SHARI
(Law or Value of Shariah)

- 5 categories: Hanafi view: A person leaves out the


1. Sabab (cause) bowing (ruku) or prostration (sajdah)
2. Shart (condition) in obligatory powers, the whole of the
3. Mani (hindrance) prayer becomes null and void. But if he
4. Azimah (strict law); Rukhsah leaves out the recitation of al-Fatihah,
(concessionary law) the salah is basically valid, albeit
5. Sahih (valid); Batil (null and void) deficient.
Majority view: The salah is null and
void in both cases.)
I. DEFINING LAW (al-hukm al-taklifi)
- Majority opinion:
1.1 WAJIB, FARD (Obligatory) As far as we are concerned, there
is no difference between fard and
- Conveys an imperative and binding wajib; the two terms are
demand of the Lawgiver addressed to the synonymous. According to the
mukallaf in respect of doing something. Hanafis, fard is based on definitive
- Acting upon wajib leads to reward, while authority but wajib is founded in
omitting it leads to punishment. speculative proof. Once again, we
do not deny the division of wajib
- The Hanafis drawn a distinction between into definitive and speculative
wajib and fard: (maqtu wa-maznun) and there is
no objection to the rise of different
WAJIB FARD expressions once their meaning is
If the command to do An act is obligatory in clear. (Al Ghazali)
something is the first degree when
established in a the command to do is 3 Varieties of Wajib
speculative (zanni) conveyed in a clear
authority, the act and definitive text of 1.
would be obligatory in the Quran or Sunnah.
second degree PERSONAL COLLECTIVE
Ex. Obligation to recite Ex. Perform the salah, (ayni) (kafai)
sura al-Fatihah in the hajj, and to obey Addressed to every Consists of obligations
salah, or to perform ones parents individual sui juris and that are addressed to
salat al-witr (the 3 cannot be performed the community as a
units of prayers which for or on behalf of whole.
another person.
conclude the late
If only some members
evening prayers (salat of the community
al-isha) perform them, the law
is satisfied and the rest
- The difference between the 2 classes of of the community is
obligations: absolved of it.
Ex. Ex.
a. The person who refuses to believe in Salah Duty to participate in jihad
the binding nature of a command Hajj (holy struggle);
Zakah Funeral prayers;
which is established by definitive proof Fulfillment of Hisbah (promotion of good
becomes an unbeliever, but not if he contract and prevention of evil);
disputes the authority of an obligatory Obedience to Building hospitals;
command of the second degree, ones parents Extinguishing fires;
Giving testimony;
although he becomes a transgressor.
Serving as judge;
(Ex. To neglect ones obligation to To give a decent burial
support ones wife, children and poor when a person dies leaving
parents amounts to a sin but not no property to meet the
infidelity.) cost of his burial

Note: The collective obligation sometimes


b. When the fard is neglected in an act changes into a personal obligation. For example,
required by the Shariah, the act as a with regard to jihad, although when the enemy
whole becomes null and void (batil). attacks and besieges a locality, it becomes the
(Ex. personal duty of every resident to defend it.

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CHAPTER 17: HUKM SHARI
(Law or Value of Shariah)

the wajib itself has two


2. main views on this:

CONTINGENT WAJIB ABSOLUTE WAJIB a. One which maintains


that excessive
(wajib muwaqqat) (wajib mutlaq)
performance in
Must be observed Free of such quantified wajib also
within specified time limitations. becomes a part of
limits. the wajib.
No time-limit on its b. That any addition to
Materializes only performance and it the minimal
when the time is due may be fulfilled every requirement
for it; it may neither time whenever the becomes mandub
be hastened nor occasion arises. only. For not
delayed, but within punishment can be
the given time limits imposed for a failure
to perform anything
the mukallaf has a
in addition to the
measure of flexibility. minimum required.
(This is the preferred
To fulfill this kind of view)
wajib, it is necessary Ex. Ex.
that the mukallaf have Salah Ones duty to support
the intention (niyyah) Zakah ones close relatives;
specifically to Payment of the price Charity to poor;
discharge it. (thaman) by the Feeding the hungry;
Ex. Ex. purchaser in a sale Paying a dower;
Fasting Performing the hajj, transaction; (mahr) to ones wife;
Salah provided that one Payment of rent in The length of standing
performs the hajj once accordance with the (qiyam);
during ones lifetime, terms of a tenancy Bowing and prostration
the duty is discharged; agreement; in salah;
Payment of expiation Enforcement of the Wiping the head in
(kaffarah), provided that prescribed penalties ablution (wudu);
one pays the kaffarah at (hudud) Quantifying the tazir
any time before one penalties for offences
dies, the duty is which are punishable
disharged; but in regard to which
Obey ones parents; the Lawgiver has not
Obligation to carry out quantified the
hisbah punishment
NOTE: It is the mukallaf,
be it the individual
believer, the qadi or the
3.
imam, enjoys the
flexibility to determine
QUANTIFIED WAJIB UNQUANTIFIED the quantitative aspect
(wajib muhaddad) WAJIB of the unquantified
(wajib ghayr wajib himself.
muhaddad)
If this wajib is discharged Failure to charge does
within the given time- not result in a personal 1.2 MANDUB (Recommended)
limit, it constitutes a liability.
liability on the person
- A demand of the Lawgiver which asks the
(dhimmah) of the
individual. mukallaf to do something which is not
With regard to the value binding on the latter.
of the excessive portion - To comply with the demand earns the
in the supererogation of mukallaf spiritual reward (thawab) but no
quantified wajib, the punishment is inflicted for failure to
issue of whether an perform.
over-fulfillment of this - Ex. Creating a charitable endowment
type becomes a part of (waqf), giving alms to the poor, fasting on
days outside Ramadan, attending the sick

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CHAPTER 17: HUKM SHARI
(Law or Value of Shariah)

the requirement of
- Variously known as: documentation.
and if any of your slaves seek their
a. Sunnah release from you in writing, set
If it is an act which the Prophet them free [fa-katibuhum] if you
has done at one time but know any good in them. The last
omitted at other times. portion of this text indicates an
element of choice which renders
3 types: the command therein mandub.
- Mandub is conveyed in persuasive
Emphatic Supererogatory Sunnah al- language rather than as a command per
Sunnah Sunnah zawa id se.
(Sunnah (Sunnah ghayr Ex.
muakkadah) muakkadah) Whoever makes an ablution for
the Friday prayers, it is good, but if
it takes a bath, it is better [afdal].
Performing this To perform this leads Refers to the - The Hanafis have held that once the
leads to spiritual to spiritual reward acts and mandub is commenced, it is completed
reward from while neglecting it is conduct - Shafiis: The mandub is never turned into
Almighty God not blameworthy. performed by
wajib and always remain sa mandub,
while neglect is the Prophet as
merely a human leaving the person who has started it with
blameworthy but being. the choice of discontinuing it whenever he
not punishable. wishes. There is no duty of belated
Omission is performance (qada) on account of failure
If the entire neither
to complete a mandub.
population of a abominable
locality agree to nor
abandon this blameworthy. 1.3 HARAM (Forbidden)
Sunnah, they are
to be fought for - A binding demand of the Lawgiver in
contempt of the
respect of abandoning something, which
Sunnah.
Ex. Ex. Ex.
may be founded in a definitive or a
The call to Non-obligatory His style of speculative proof.
congregational charity; dress; - Committing it is punishable and omitting it
prayers; Supererogatory His choice of is rewarded.
Attending prayers preceding food - Hanafis: Haram is a binding demand to
congregational the obligatory salah
prayers; in the early and late
abandon something which is established in
Gargling as a part afternoon. definitive proof; if the demand is founded
of the ablution in speculative evidence, it constitutes a
makruh tahrimi, but not haram.
b. Mustahabb
c. Nafl - Variety forms of Haram:

- Mandub occurs also in the Quran in the A. The text may dearly use the word
form of a command which is then haram or any of its derivatives.
accompanied by indications to suggest Ex. Forbidden to you [hurrimat alaykum] are the
that the command is only intended to dead carcass, blood and pork; and God permitted
convey a recommendation. sale but prohibited usury.
Ex. Everything belonging to a Muslim is forbidden to
A command which requires that his fellow Muslims: his blood, his property and his
giving and taking of period loans honour.
must be set down in writing. But
the subsequent portion of the B. Haram may be conveyed in other
same passage provides that if any prohibitory terms which require the
of you deposits something with avoidance of a certain form of
another, then let the trustee conduct.
[faithfully] discharge his trust. This Ex. Slay not [la taqtulu] the life that God has
passage implies that if the creditor made sacrosanct, save in the course of justice;
trusts the debtor, they may forego and devour not [la ta kulu] one anothers
property in defiance of the law.

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CHAPTER 17: HUKM SHARI
(Law or Value of Shariah)

Making an offer of betrothal to a


C. Haram may be communicated in the woman who is already betrothed
form of a command to avoid a certain to another man
form of conduct. Consequence:
Ex. Wine-drinking and gambling are works of the Violating a prohibition which is imposed
devil; and then orders the believers to avoid it. owing to an extraneous factor is fasid
(irregular) but not batil, and as such may
D. Haram may be communicated fulfill its intended legal purpose. (Ex. A
through expressions such as it is not marriage which is contracted for the
permissible or it is unlawful in a purpose of tahlil is clearly forbidden, but it
context which is indicative of total validly takes place nevertheless.)
prohibition. Permissible not only in cases of absolute
Ex. It is not permissible for you [la yahillu lakum] necessity but also when it prevents
to inherit women against their will, or it is hardship. (Ex. Physician is permitted to
unlawful [la yahillu] for a Muslim to take the look at the private parts of the patient
property of another Muslim without his consent. even in the case of illnesses which do not
constitute an immediate threat to life.
E. Haram is also identified by the
enactment of a punishment for a - Another criterion for distinguishing the 2
certain form of conduct. varieties of haram that some ulema have
Ex. Hudud penalties (hadd penalty is specific in mentioned is that haram li-ghayrih
reference to both the quantity of punishment and consists of an act which leads to haram li-
the type of conduct which it penalises. dhatih.
Those who eat up the property of orphans Ex. Marrying 2 sisters simultaneously is
swallow fire into their own bodies; they will soon haram because it leads to the severance
be enduring a blazing fire. of ties of kinship (qat al-arham), which is
haram by itself.
2 Types of Haram
1.4 MAKRUH (Abominable)
1. Haram li-dhatih or that which is forbidden
for its own sake - Is a demand of the Lawgiver which
requires the mukallaf to avoid something
- Ex. Theft, murder, adultery, marrying a but not in strictly prohibitory terms.
close relative, and performing salah - The opposite of mandub, which means
without an ablution. that neglecting the mandub amounts to
makruh.
Consequence: - The perpetrator of something makruh is
Null and void ab initio (batil); ex. Marriage not liable to punishment and he does not
to ones sister or the sale of dead incur moral blame either.
carcasses - Anyone who avoids the makruh merits
Not permissible in cases of dire necessity praise and gains closeness to God.
(darurah) of a kind which threatens the
safety of the five principles of life, - Forms of Makruh:
religion, intellect, lineage and property.
a. May consist of a reference to
2. Haram li-ghayrih, or that which is something which is specifically
forbidden because of something else identified as makruh

- An act may be originally lawful but has b. May be identified by words that may
been lawful owing to the presence of convey an equivalent meaning.
certain circumstances. Ex.
Ex. Prophet discouraged any
A marriage which is contracted for prayers at midday until the
the sole purpose of tahlil, in order decline of the sun, with the
to legalise another intended exception of Friday. (The actual
marriage word used in the Hadith is that
Performing salah in stolen clothes the Prophet disliked [kariha al-
nabi] prayers at that particular
time.

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CHAPTER 17: HUKM SHARI
(Law or Value of Shariah)

The most abominable of 1.5 MUBAH (Permissible)


permissible things [abghad al-
halal] in the sight of God is - Defined as communication from the
divorce. Lawgiver concerning the conduct of the
mukallaf which gives him the option to do
c. May also be conveyed in the form of a or not to do something.
prohibition but in language that
indicates only reprehensibility. - Forms of Mubah
Ex.
Ask not about things which, if a. May be in the form of a clear nass
made clear to you, would Ex.
trouble you, but if you ask In reference to foodstuffs:
about them when the Quran is This day all things good and
being revealed, then they will pure have been made lawful
be explained to you. (uhilla) to you.
Leave that of which you are Betrothal:
doubtful in favour of that which There is no blame on you [la
you do not doubt. junaha alaykum] if you make
- 2 varieties of Makruh: an offer of betrothal to a
woman.
Makruh tanzihi Makruh tahrimi Committing a sinful act out of
sheer necessity:
Its commission is not Entails moral blame If someone is compelled by
punished but its but no punishment. necessity without willful
omission is (Hanafi view) disobedience or transgression,
rewarded. then he is guiltless [fala ithma
Abominable for Abominable to the alayh].
purposes of keeping degree of
pure prohibition b. May only amount to permissibility
Ex. Ex. when the nature of the conduct in
Avoiding raw onion Wearing of gold question or other relevant evidence
and garlic just before jewelry and silk indicates that such is the case.
going to garments for men: Ex.
congregational These are A text which orders
prayers; forbidden [haram] worshippers to scatter in the
Neglecting salat al- to the men of my earth once they have
nafl, that is, community but are completed the Friday prayers.
supererogatory lawful [halal] to
prayers preceding, their women.; c. Where the law provides no ruling to
for example, the A person to offer to specify the value of a certain form of
salat al-zuhr (early buy something for conduct, then according to the
afternoon prayers which another DOCTRINE OF ISTISHAB AL-ASL
person has already (PRESUMPTION OF CONTINUITY),
made an offer; permissibility (ibahah) remains the
Making an offer of original state which is presumed to
engagement to a continue.
woman who is Ex.
already betrothed to An address to mankind, that
another man. God Almighty has created
everything in the earth for your
When a prohibition is conveyed in benefit.: It is understood that
an imperative demand of the the benefit in question cannot
Lawgiver but there is somle doubt materialize unless everything
over its authenticity or meaning: in the earth is made mubah for
Majority view: Haram mankind to use and to utilize in
Hanafi view: Makruh Tahrimi the first place.

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CHAPTER 17: HUKM SHARI
(Law or Value of Shariah)

3 TYPES OF MUBAH cause (sabab), a condition (shart) or a


hindrance (mani) to something else.
1. Mubah which does not entail any harm to
the individual whether he acts upon it or Cause: the act of adultery is the cause of the
not. punishment of adultery (100 lashes)
Ex. Eating, hunting or walking in the fresh
air. Condition: pilgrimage of hajj: Pilgrimage is a duty
owed to God by people who can manage to make
2. Mubah whose commission does not harm the journey.
the individual although it is essentially Ex. There is no nikah without two witnesses.
forbidden. The presence of witness is rendered a condition
Ex. for a valid marriage.
Prohibited acts which the Lawgiver
has made permissible on account of Hindrance: There shall be no bequest to an heir,
necessity, such as uttering words of which obviously enacts the tie of kinship between
unbelief raider duress the testator and the legatee into a hindrance to
Eating the flesh of a dead carcass to bequest.
save ones life. The killer shall not inherit. It renders killing a
hindrance to inheritance.
3. Mubah which is not really mubah per se;
it is included under mubah for lack of a - To execute this law is normally within the
better alternative. capacity of the mukallaf.
- It consists of things which were practiced - It may be within or beyond the capacity of
at one time but were then prohibited with the mukallaf.
the proviso that those who indulged in Ex. The arrival of a particular time of day
them before the prohibition are which is the cause (sabab) of salah is
exonerated. beyond the means and capacity of the
Ex. worshipper.
Prohibits marriage with certain - It informs us whether certain facts or
relatives, and the text then continues event.
to make an exception for such Ex.
marriages that might have occurred in Offer and acceptance in a contract of
the past. sale to be the cause of the buyers
Wine-drinking was not prohibited until ownership
the Prophets migration to Madinah, Divorce causes the extinction of
and fell under the category of mubah marital rights and obligation
until the revelation of the ayah in sura Death of a person is the cause of the
al-Maidah which imposed a total ban right of the heir to his inheritance.
on it. Intellectual maturity to be the
EXC. condition of voluntary disposition of
Acts of child, insane person, or an animal property in gift (hibah) and charitable
Acts of God endowment (waqf).
Acts and events which took place prior to
the advent of Islam 5 VARIETIES OF DECLARATORY LAW
NOTE: They regarded the following as
abandonment. II.1 CAUSE (Sabab)

- Mubah proper is established in the express - Defined as an attribute which is evident


permission of Almighty God which renders and constant [wasf zahir wa-mundabat]
the commission or omission of an act and which the Lawgiver has identified as
permissible either in religious terms or in the indicator if a hukm in such a way that
respect of a possible benefit or harm that its presence necessitates the presence of
may accrue form it in this world. the hukm and its absence means that the
hukm is also absent.
II. DECLARATORY LAW ( al-Hukm al- - May be an act which is within the power
Wadi) of the mukallaf (muder, theft in their
status as the causes of retaliation (qisas)
- Defined as communication from the and a (hadd) penalty respectively.
Lawgiver which enacts something into a

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CHAPTER 17: HUKM SHARI
(Law or Value of Shariah)

- May be beyond the control of the mukallaf Ex. Spouses stipulate in their marriage
(minority being the cause of guardianship contract the condition that they will
over the person and property of a minor.) reside in a particular locality.
- When the sabab is present, whether it is
within or beyond the control if the Rukn vs. Shart
mukallaf, its effect is automatically present
even if the mukallaf had not intended it to Rukn it partakes in the essence of thing.
be. - The law or hukm could not exist in the
Ex. absence of of its rukn.
When a man divorces his wife by a - When the whole or even the part of the
revocable talaq, he is entitled to rukn is absent, the hukm collapses
resume marital relations with her completely with the result that latter
even if he openly denies himself that becomes null and void (batil).
right. Shart does not partake in the essence of hukm,
When a man enters into a contract of athough it is a complementary part of it.
marriage, he is obligated to provide Ex. Bowing and prostration (ruku and sajdah) are
dower and maintenance for his wife each an essential requirement of salah and
even if he explicitly stipulates the partake in the very essence of salah, but ablution
opposite in their contract. is a condition of salah as it is an attribute whose
absence disrupts the salah but which does not
II.2 CONDITION (Shart) partake in its essence.

- Defined as an evident and constant II.3 HINDRANCE (Mani)


attribute whose absence necessitates the
absence of the hukm but whose presence - Defined as an act or an attribute whose
does not automatically bring about its presence either nullifies the hukm or the
object (mashrut). cause of the hukm.
Ex. - The presence of the mani means the
Presence of a valid marriage is absence of the hukm.
precondition of divorce. It does not Ex. Difference of religion, and killing
mean that when there is a valid both are obstacles to inheritance
marriage, it must lead to divorce. between the legal heir and his
The ablution (wudu) is a necessary deceased relative, despite the fact
condition of salah, but the presence that there may exist a valid tie of
of wudu does not necessitate salah. kinship (qarabah) between them:
when the obstacle is present, the
- A condition normally complements the hukm, which is inheritance, is
cause and gives it its full effect. absent.
Ex.
Killing is the cause of retaliation; - 2 TYPES OF MANI
however, this is on condition that it is
deliberate and hostile. 1. Mani which affects the cause in the
The contract of marriage sense that its presence nullifies the
legalizes/causes sexual enjoyment cause.
between the spouses; however, this is Ex. Indebtedness of a person who is
on condition that two witnesses liable to the payment of zakah
testify to the marriage. Being ill debt hinders the cause of
zakah, which is the ownership of
- The legal consequences of a contract are property. A person who is in debt
not fully realized without the fulfillment of to the extent of insolvency is no
its necessary conditions. longer considered to be owning
any property at all.
- A condition may be laid down by the: Thus when the case is nullified, the
a. Lawgiver (whenever it enacts a hukm itself, which is the duty to
condition, it is referred to as shart pay zakah, is also nullified.
shari, or legal condition)
Ex. Witnesses in a marriage contract 2. There is the hindrance which affects
b. Mukallaf (it is referred to shart jali, or the hukm.
improvised condition)

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9
CHAPTER 17: HUKM SHARI
(Law or Value of Shariah)

- The presence of this type of hindrance prohibitions strict law would


nullifies the hukm directly, even if the (prohibition of require him to persist
cause and the condition are both present. murder, theft, in his faith until death.
Ex. Paternity, which hinders retaliation: if a adultery, wine- (Reason: Right of the
father kills his son, he is not liable to drinking) person to life, and is
retaliation although he may be punished clearly granted in the
otherwise. Quran which allows
Paternity thus hinders retaliation the utterance of
according to the majority of ulema words of infidelity
(except Imam Malik) despite the under duress.
presence of the cause of
retaliation, which is killing, and its NOTE: The two are interrelated in that rukhsah
condition, which is hostility and the can only exist when there is azimah in the first
intention to kill. place.
Imam Malik has held, on the other Ex.
hand, that the father may be God Almighty has not made fasting in the
retaliated against for the deliberate month Shawwal (the month following
killing of his offspring. Ramadan) obligatory upon Muslims.
This is not a concession. As there
II.4 STRICT LAW (Azimah) and CONCESSIONARY exists no obligations in the first
LAW (Rukhsah) place.
The normal state of ibahah regarding
STRICT LAW CONCESSIONARY LAW foods and drinks is not rukhsah, whereas
(Azimah) (Rukhsah) the permission to eat prohibited meat in
Is a command of the It embodies a certain circumstances is rukhsah.
Lawgiver which binds concession in respect It is incorrect to call permissibility of
the mukallaf. of that command. tayammum (i.e. dry ablution with clean
It is azimah when it is It is rukhsah when it is earth or sand) in the absence of water a
primary and unabated considered in rukhsah: when there is no water it is not
rigour without conjunction with possible to make an ablution proper wudu
reference to any attenuating in the first place.
attenuating circumstances. But tayammum is a rukhsah if it is
circumstances which substitute for wudu when the
may soften in its weather is extremely sold.
original force or even NOTE: The point is that in rukhsah the individual
entirely suspend it. must be able to take an alternative course of
action.
It is a law as the
Lawgiver had intended 3 VARIETIES OF RUKHSAH
it in the first place.
A law in its normal It embodies 1. In the form of permitting a prohibited act
state exceptions that the on grounds of necessity
Lawgiver has granted Ex.
with a view to bringing Eating the flesh of a carcass,
facility and ease in Drinking wine at the point of
difficult starvation or extreme thirst
circumstances.
Ex. Ex. 2. Rukhsah may occur in the form of
Salah Travelers to break the omitting a wajib when conformity to that
Zakah fast during Ramadan is wajib causes hardship
Hajj valid only for the Ex.
Jihad duration of traveling, Concession granted to the traveler
after which the to shorten the quadruple salah
which God has azimah must be Not to observe the fasting
enjoined upon all complied with again; Ramadan
competent individuals A Muslim is compelled
to renounce his faith, 3. In the area of transactions, rukhsah
May consist of either he is permitted to do occurs in the form of validating contracts
commands or so even though the which would normally be disallowed.

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Ex. fulfills the wajib, otherwise, the


Lease and hire (ijarah) wajib remains unfulfilled. A
(a) Advance sale (salam), and valid contract gives rise to all of
(b) order for manufacture of goods its legal consequences whereas
(istisna) a void contract fails to satisfy
are all anomalous, as the object its legal purpose.
of contract is non-existent at
the time of contract, but they The acts of devotion (ibadat) can either be
have been exceptionally valid or void, in the sense that there is no
permitted in order to intermediate category in between.
accommodate the public need Legal acts are valid when they fulfill
for such transactions. all the requirements pertaining to
the essential requirements, causes,
4. In the form of concessions to the Muslim conditions and hindrances.
ummah from certain rigorous laws which Legal acts are void when any of
were imposed under previous these is lacking or deficient and is,
revelations. therefore, non-existent ab initio
Ex. and of no consequence
Zakah to the extent of one-quarter whatsoever.
of ones property
Impermissibility of salah outside a HANAFIS VIEWS ON FASID
mosque
Illegality of taking booty (i.e. a. Hanafis distinguished an intermediate
ghanimah) category between valid and void,
Which were imposed on people under namely the fasid.
previous religions, have been removed The deficiency in a contract affects
by the Shariah of Islam. an essential requirement: the
contract is null and void
The deficiency in a contract only
Wrap-up: affects a condition: the contract is
fasid but not void
These are Shariah values which NOTE: A fasid contract, although deficient
describe and evaluate legal acts in some respects, is still a contract and
incurred by the mukallaf. produces some of its legal consequences,
To evaluate an act according tot hese but not all.
criteria depends on whether or not the Thus a fasid contract of sale
act in question fulfills the essential establishes the purchasers ownership
requirements (arkan) and conditions over the sale when he has taken
(shurut) that the Shariah has laid possession thereof, but does not
down down for it, as well as to ensure entitle the purchaser to the usufruct
that there exist no obstacles to hinder (intifa).
its proper conclusion. In the case of an irregular contract of
Ex. marriage, such as one without
Salah is a shari act and is witnesses, the spouse or the qadi must
evaluated as valid when it either remove the deficiency or
fulfills all the essential dissolve the marriage, even if the
requirements and conditions marriage has been consummated.
that the Shariah has provided If the deficiency is known before
in this regard. Conversely, salah consummation, the consummation
becomes void when any of its is unlawful. But the wife is still
essential requirements and entitled to the dower (mahr) and
conditions are lacking. must observe the waiting period of
A contract is described as valid iddah upon dissolution of
when it fulfills all of its marriage.
necessary requirements, and The offspring of a fasid marriage is
when there is nothing to hinder legitimate, but the wife is not
its conclusion; otherwise it is entitled to maintenance, and no
void. When salah is performed right of inheritance between the
according to its requirement, it

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CHAPTER 17: HUKM SHARI
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spouses can proceed from such The ulema are in disagreement as to the
marriage. way in which the will or the hukm of the
Lawgiver regarding the conduct of the
b. Hanafis describe the fasid as mukallaf is to be known and identified.
something which is essentially lawful
(mashru) but is deficient in respect of
an attribute (wasf) as opposed to the 3 VIEWS AS TO THE HUMAN INTELLECT IN
batil which is unlawful (ghayr DETERMINING WHAT IS GOOD AND EVIL:
mashru) on account of its deficiency
in regard to both essence (asl) and 1. ASHARITES VIEW
attribute.
They maintain that it is not possible for human
c. Hanafi approach to the fasid is also intellect to determine what is good and evil in the
grounded in the idea that the conduct of the mukallaf, or to identify the hukm
deficiency which affects the attribute of the Lawgiver concerning the conduct of the
but not the essence of a transaction mukallaf, without the aid of divine guidance.
can often be removed and rectified.
Ex. For human reasoning and judgment are
liable to err.
If a contract of sale is concluded
While an act may be evaluated by one
without assigning a specified price,
person as good, another person might say
it is possible to specify the price
the opposite.
(thaman) after the conclusion of
the contract and thus rectify the
They also maintain that right and wrong are not
irregularity at a later opportunity
determined by reference to the nature of things,
as soon as it is known to exist or as
or our perception thereof, but are determined as
soon as possible.
such by God.
III. THE PILLARS (Arkan) OF HUKM SHARI
When the lawgiver permits or demands an
act, we know that it is right/good, and
3 ESSENTIAL COMPONENTS
when He forbids an act, it is certain that
the act in question is wrong/evil.
III.3 LAWGIVER (Hakim)
The criterion of right and wrong is shar,
not aql.
The ulema are unanimous that the source
This view shows that what the law
of all law in Islam is God Most High, whose
commands is good and what it forbids is
will and command is known to the
evil.
mukallaf either directly through divine
Principle of the rule of law/Principle
revelation, or indirectly by means of
of legality establishes that a man is
inference, deduction and ijtihad.
not required to do something or to
Quran: The prerogative of command
avoid doing it unless the law has been
belongs to God alone.
communicated to him in advance.
No one is either rewarded for an act
Law and justice in the Muslim community
or punished for an omission unless
must derive their validity and substance
he knows its status by means of a
from the principles and values that the
clear communication.
Lawgiver has sanctioned.
When a person happens to be living
Quran: It declares that those who refuse
in total isolation and has never
to accept the authority of the divine law
received the message of Lawgiver,
are considered as unbelievers.
he is not a mukallaf and deserves
neither reward nor punishment.
Prophets, rulers, imam, the master or the
Quran: And we never punish until
father do not partake in the prerogative of
We send a messenger. It indicates
command because their commands do not
that reward and punishment are
constitute binding authority in its own
based on the revealed law, not
right; instead, obedience to such
human intellect.
individuals is founded in the command of
the Lawgiver nor human intellect, or aql,
They also maintain the view that the commands
alone a source of law in its own right.
of the Lawgiver relate to the conduct of the

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CHAPTER 17: HUKM SHARI
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mukallaf only after the advent of Islam and that Although aql can determine the value
prior to this event, there is no basis for obligation. of truth and falsehood, it cannot
Ex. Infidelity (kufr) is not haram, nor is faith determine or assess the precise value.
(lyman) wajib before the revelation actually
declares it so. Their approach to the question of right and wrong
embodies a utilitarian approach to jurisprudence
2. MUTAZILAH VIEW (followers of Ibrahim in the sense that a good law is that which brings
al-Nazzam) the greatest benefit to the largest number.

They held that human intellect can identify the Right and wrong are evaluated from the
law of God regarding the conduct of the mukallaf viewpoint of the benefit and harm that
even without the mediation of scriptures and they entail to the person who acts upon it
messengers. and to others.
Acts which do not relate to this context
The shar only removes the curtain from are simply regarded as of no consequence;
what the aql could itself perceive, and in they are branded as abath, that is, totally
essence the former is identical with the in vain.
latter.
The intellect (aql) can identify the good 3. MATURIDIS VIEW (followers of Abu al-
and evil in human conduct by reference to Maturidi)
its benefit and harm.
God only asks the mukallaf to do what is Their view has been adopted by the
beneficial and forbids him from doing Hanafis and considered to be the most
what is harmful. acceptable.

A person who acts against the requirement of According to this view, right and wrong in the
reason may therefore be punished and one who conduct of the mukallaf can indeed be
acts in harmony with it may be rewarded. ascertained and evaluated by the human intellect.

A person who has received no But this does not necessarily mean that
communication from the Lawgiver can still the law of God in regard to such conduct is
be considered a mukallaf and be held always identical with the dictates of aql,
responsible on the basis of reason, and his for human intellect is liable to error.
punishment or reward can be determined The knowledge of right and wrong must be
accordingly. based on divine communication.

They asserted that it is impossible for God to This view basically combines the two foregoing
command something which is inherently evil or to opinions, but tends to lean more toward the
prohibit something that is intrinsically good, Asharites in that responsibility of the mukallaf is
which obviously means that shar and aql are to be determined no with the reference to the
always in agreement with one another. dictates of human reason but on the basis of the
law as the Lawgiver has communicated it.
Dissenting opinion:
Al-Ghazali: Aql is capable of discerning good and evil,
When an act is agreeable to one person but this evaluation does not constitute the
and disagreeable to another, it is good basis of reward and punishment, which is
from the viewpoint of the former and evil a matter which is solely determined by the
from that of the latter. Such relativistic Lawgiver.
and circumstantial approach to good and Whatever the Lawgiver has commanded is
evil is totally unacceptable. right, and merits reward, and whatever He
The Shariah evaluates the acts and has forbidden is wrong and its perpetrator
conduct of the mukallaf on an is liable to punishment.
objective plane regardless of whether
they agree or disagree with particular This view also agrees with the Mutazilah to the
interests. extent of its recognition that the inherent values
of things are discernible by human intellect which
Al-Shawkani: can perceive and detect values in the nature of
Certain areas of human conduct are not things.
amenable to rational evaluation.

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The Maturidis, however, differ with the The law is, therefore, applied to him, and
Mutazilah in that they hold that no reward or his ignorance of the rules of Shariah is no
punishment can be granted on the basis of aql excuse.
alone. It is sufficient to ensure that the individual
can acquire knowledge of the Shariah
III.2 THE SUBJECT-MATTER of Hukm (al-Mahkum either directly or by asking those who have
Fih) such knowledge.

Denotes the acts, rights and obligations of 2. The act which the individual is required to
the mukallaf which constitute the subject- do must be within his capability, or, in the
matter of a command, prohibition or case of prohibition, be within his
permissibility. capability to avoid.
All commands and prohibitions are
concerned with the acts and conducts of No law may demand something which is beyond
the mukallaf. the capacity of the individual.
Occasionally, the makhum fih does not Relative principles: God does not obligate a living
consist of the conduct of the individual, soul beyond the limits of his capacity, and God
but even then it is related to it. puts no burden on any person beyond what He
Ex. has given him.
The arrival of Ramadan which is the
cause (sabab) of fasting is not an act of No one may be required to do impossible, and it
the individual, but is related to the makes no difference whether the act is impossible
latter in the sense that the effect by its nature or whether it is beyond the capacity
(musabbab) of that cause (fasting) of the individual in view of his particular
consists of the act of the mukallaf. conditions.

In order to constitute the subject matter Conclusion:


of a hukm, the conduct which the No person may be obligated to act on
individual is required to do, or avoid behalf of another person or to stop
doing, must fulfill the following three another competent individual from acting.
conditions: No one may be obligated to do or not to
do something in regard to which he has no
1. The individual must know the nature of choice, such as asking someone to act
the conduct so that he can perform what against his natural and biological
is required of him or refrain from that functions.
which is forbidden. Ex.
The Quran orders the believers not
An ambivalent text or a locution which does not to despair over matters that have
impair this knowledge cannot constitute the basis passed you by, nor to exult over the
of either a command or a prohibition. favors that are bestowed upon you.
Ex. - Pleasure and despair are natural
The ambivalent (mujmal) text of the phenomena, and as such they are basically
Quran concerning salah, zakah, and beyond the individuals control.
hajj did not obligate anyone until these - One should avoid the consequences of
matters were explained and clarified by despair such as violence against oneself or
the Prophet. another person, and ensure that joy and
happiness do not lead to arrogance and
The ulema are in agreement that necessary contemptuous behavior.
instruction or explanations must not be delayed
and must be given in time when they are needed, Fulfill your duties to the extent of your ability.
otherwise they would fail to provide the basis of It means that legal obligations are only operative
obligation (taklif). within the limits of ones capacity.

When a person is in full possession of his 3. The demand to act or not to act must
capacities and it is possible for him to learn the originate in an authoritative source which
law, he is presumed to know his legal obligations. can command the obedience of the
mukallaf.

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The hukm must emanate from God or His This is called uqubah qasirah on account of
messenger. the fact that it inflicts only a financial loss.
- It is mainly due to this requirement that 7) Punishments which lean toward worship,
the proof or evidence in which the law is such as the penances (kaffarat).
founded must be identified and explained. 8) Exclusive rights, in the sense that they
consist of rights alone are not necessarily
2 DIVISIONS OF RIGHTS addressed to the mukallaf, such as
community right to mineral wealth or to
RIGHT OF GOD RIGHT OF MAN the spoils of war (ghanaim).
(haqq Allah) (haqq al-abd)
2. Acts which exclusively consist of the rights
It is called so because of men.
it is beneficial to the
community at large Ex.
and not merely to a Right to enforce a contract
particular individual. Right to compensation for loss
Public right Private right The purchasers right to own the object
Its enforcement is a Its enforcement is up he has purchased
duty of the state. to the person whose The vendors right to own the price paid
right has been to him
infringed, who may or Right of pre-emption (shuf)
may not wish to
demand its To enforce such rights is entirely at the option of
enforcement. the individual concerned; he may demand them or
waive them, even without any consideration.
4 MAIN CATEGORIES:
3. Acts in which the rights of the community
1. Acts which exclusively consist of the Right and those of individuals, are combined,
of God (acts of devotion and worship) while of the former preponderate.
which are the pillars of religion and are
necessary for the establishment of an Ex.
Islamic order. Right to punish a slanderer (qadhif) by reason
of the attack made on honor of one of its
8 varieties of Pure Rights of God (huquq Allah al- members.
khalisah): - Since the Right of God is dominant in qadhf,
the victim of this offence cannot exonerate
1) Rights of God which, consist exclusively of the offender from punishment.
worship, such, as professing the faith - The Shafiis have held on the contrary view
(iman), salah, zakah, the pilgrimage and that qadhf is an exclusive Right of Man and
jihad. that the person so defamed is entitled to
2) Rights which consist of both worship and exonerate the defamer.
financial liability (maunah), such as charity
given on the occasion of id al-fitr, marking All acts which aim at protecting human life,
the end of Ramadan. intellect and property.
3) Rights in which financial liability is greater To implement consultation (shura) in public
than worship, like the tithe that is levied on affairs
agricultural crops. Right of the individual in respect of bayah in
4) Rights of God which consist of financial electing the head of state.
liability but have a propensity toward
punishment, such as the imposition of The basic criterion of distinction between the Right
kharaj tax on land in the conquered of God and the Right of Man is whether it can be
territories. exempted by the individual or not.
5) Rights which consist of punishment only,
like the hudud, that is, the prescribed 4. Matters in which public and private rights
penalties for theft and adultery, and so are combined but where the latter
forth. preponderate.
6) Rights which consist of minor punishment
(uqubah qasirah), such as excluding the Ex.
murderer from the inheritance of his victim. Retaliation (qisas), and

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CHAPTER 17: HUKM SHARI
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Blood-money (diyah) of any kind, Vested in every Only acquired upon


Whether for life or for grievous injury human being, attaining a certain
competent or level of intellectual
The community is entitled to punish such violations, otherwise. maturity and
but the right of the heirs in retaliation and in diyah competence.
for erroneous killing, and the right of the victim in An insane person, a
respect of diyah for injuries, is preponderant in foetus in the womb, Only a person who
view of the grievance and loss that they suffer as a a minor and a foolish understands his acts
result. person (safih), and his words is
whether in good competent to
The guardian (wali) of the deceased, in the case of health or in illness: conclude a contract,
qisas, is entitled to pardon the offender or to all possess legal discharge an
accept a compensation from him. capacity by virtue of obligation, or be
their dignity as punished for
But the state, which represents the community, is human beings. violating the law.
still entitled to punish the offender through a tazir
punishment even if he is pardoned by the relatives Founded in the
of the deceased. capacity of the mind
to understand and
III.3 LEGAL CAPACITY (Ahliyyah) to discern.

- Exclusively concerned with the legal - It is the intellectual faculty of the


capacity of the makhum alayh, that is, the individual rather than age as such which
person to whom the hukm is addressed, determines his legal capacity.
and it looks into the question of whether he Principle: `The pen is lifted from three
is capable of understanding the demand persons: the one who is asleep until he
that is addressed to him and whether he wakes, the child until he attains puberty,
comprehends the grounds of his and the insane person until he regains
responsibility (taklif). sanity.

- Since the possession of the mental faculty Receptive LC may either be:
of `aql is the basic criterion of taklif, the law
concerns itself with the circumstances that a. Deficient
affect the sanity and capacity of the
individual, such as minority, insanity, The receptive legal capacity of a child in the
duress, intoxication, interdiction (hajr) and womb is incomplete in the sense that it can only
mistake. receive certain rights, such as inheritance and
bequest, but cannot bear any obligation toward
- 2 types of Legal Capacity: others.
Receptive legal Active legal capacity
capacity (ahliyyah al-ada') b. Complete
(ahliyyah al-wujub)
Capacity to receive Capacity for the When a person can both have rights and bear
or inhere rights and active exercise of obligations. This type of legal capacity is acquired
obligations rights and by every human being as of the moment of birth.
obligations During its infancy and later stages of childhood, a
The ability of the Capacity enables child is capable of discharging, albeit through his
individual to receive him to fulfill rights guardian, certain obligations in respect, for
rights and and discharge example, of maintenance, liability for loss
obligations on a obligations, to effect (daman), and payment for services rendered to
limited scale valid acts and him.
transactions, and
in bear full Active LC 3 possible situations:
responsibility
toward God and his 1. A person may be totally lacking of active
fellow human beings legal capacity, as in the case of a child during
As to criterion of Maturity of intellect infancy or an insane person of any age.
existence:
Life itself

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Since neither is endowed with the faculty A person in his death-illness (marad al-
of intellect, no legal consequences accrue mawt) is also deficient of legal capacity, as
from their words and acts. severe illness and fear of imminent death
Ex. affect the physical and mental faculties of
When a child or a madman kills someone the individual.
or destroys the property of another But ordinary illness and other conditions
person, they can only be held liable with which do not impair the intellectual
reference to their property, but not to capacity of a person have no bearing on
their persons. They cannot be subjected, his active legal capacity.
for example, to retaliation, or to any This is partly why Imam Abu Hanifah has
other type of punishment. differed with the majority of jurists by
holding the view that foolishness
2. A person may be partially lacking in active (safahah), indebtedness and carelessness
legal capacity. (ghaflah), do not affect the active legal
capacity of a person. Abu Hanifah refuses
Thus a discerning child (al-sabi to accept these as proper grounds of
almumayyiz), that is, a child between interdiction, as in his view the benefit of
seven and fifteen years of age, or an idiot interdiction in these cases is far
(ma'tuh) who is neither insane nor totally outweighed by its possible harm.
lacking in intellect but whose intellect is
defective and weak, possess a legal
capacity which is deficient. Both of them
possess an active legal capacity which is
incomplete and partial.
The discerning child and the idiot are
capable only of concluding acts and
transactions that are totally to their
benefit, such as accepting a gift or charity,
even without the permission of their
guardians. But if the transaction in
question is totally disadvantageous to
them, such as giving a gift or making a will,
or pronouncing a divorce, these are not
valid at all even it their guardians happen
to approve of them. As for transactions
which partake in both benefit and loss,
they are valid but only with the permission
of the guardian (wali), otherwise they are
null and void.

3. Thirdly, active legal capacity is complete


upon the attainment of intellectual
maturity.

Hence every major person who has


acquired this ability is presumed to
possess active legal capacity unless there
is evidence to show that he or she is
deficient of intellect or insane.
Ex.
Persons who are fully competent may
sometimes be put under interdiction (hajr)
with a view to protecting the rights of others.
A person may be interdicted by means of a
judicial order which might restrict his powers
to conclude certain transactions.
A debtor may thus be interdicted so that the
rights of his creditors may be protected.

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