17. HUKM SHAR`I (LAW OR VALUE OF SHARI’AH)
The ulema of usul define hukm shar`i as a locution or communication from the Lawgiver concerning the conduct of the mukallaf (person in full possession of his faculties) which consists of a demand, an option or an enactment A demand (talab, or iqtida’) is usually communicated in the form of either a command or a prohibition. The former demands that the mukallaf do something, whereas the latter requires him to avoid doing something. A demand may either be binding, which leaves the mukallaf with no choice but to conform, or may not be binding. When a demand to do or not to do something is established by definitive proof (dalil qat’i) it is referred to as wajib or haram respectively. Such is the majority view, but according to the Hanafi jurists, if the text which conveys such a demand is not definitive in its meaning (dalalah) or authenticity (thubut), it is wajib, but if it is definitive in both respects, it is far. As for the demand to avoid doing something, the Hanafis maintain that if it is based on definitive proof in terms of both meaning and authenticity, it is haram, otherwise it is makruh tahrimi. When a demand is not utterly emphatic and leaves the individual with an element of choice it is known as mandub (recommended). The option (takhyir), on the other hand, is a variety of hukm shar’i which leaves the individual at liberty either to do or to avoid doing something. A hukm of this kind is commonly known as mubah (permissible). An enactment, or wad`, is neither a demand nor an option, but an objective exposition of the law which enacts something as a cause (sabab) or a condition (shart) of obtaining something else; or it may be conveyed in the form of a hindrance (mani`) that might operates an obstacle against obtaining it.
To give some examples, the Qur’anic command which addresses the believers to `fulfill your contracts’ (al-Ma’idah, 5:1) is a speech of the Lawgiver addressed to the mukallaf which consists of a particular demand. A demand addressed to the mukallaf which conveys a prohibition may be illustrated by reference to the Qur’anic text which provides: ‘O you believers, let not some people ridicule others, for it is possible that the latter are better than the former [ …]’ (al-Hujurat, 49:11). To illustrate a hukm which conveys an option, we refer to the Qur’anic text which permits the believers to ‘hunt when you have come out of the state of ihram‘ (sacred state entered into for the purpose of performing the hajj pilgrimage) (al -Ma’idah, 5:2). Another Qur’anic text which consists of an option occurs in sura al- Baqarah (2:229) which provides: `If you fear that they [i.e. the spouses] would be unable to observe the limits set by God, then there would be no sin on them if she gives a consideration for her freedom.’ The married couple are thus given the choice to incur a divorce by mutual consent, known as khul’, if they so wish, but they are under no obligation if they do not. Another form of option which occurs in the Qur’an may be illustrated with reference to the expiation (kaffarah) of erroneous killing. The perpetrator has here been given the choice either to set a slave free, or feed sixty destitute, or fast for two consecutive months (al-Nisa’, 4:92). The following Hadith also conveys a hukm in which the individual is given a choice. The Hadith reads: ‘If any of you sees something evil, he should set it right by his hand; If he is unable to do so, then by his tongue; and if he is unable to do even that, then within his heart- but this is the weakest form of faith.
Here the choice is given according to the ability of the mukallaf and the circumstances which might influence his decision. Lastly, to illustrate a hukm which consists of an enactment (wad’) we may refer to the Hadith which provides that the killer does not inherit. This is a speech of the Lawgiver concerning the conduct of the mukallaf which is neither a demand nor an option but an objective ruling of the law that envisages a certain eventuality.
The ulema of usul have differed with the fuqaha’ in regard to the identification of hukm shar`i. To refer back to the first example where we quoted the Qur’an concerning the fulfillment of contracts; according to the ulema of usul, the text itself, that is, the demand which is conveyed in the text, represents the hukm shar’i. However, according to the fuqaha’, it is the effect of that demand, namely the obligation (wujub) that it conveys which embodies the hukm shar`i. To give another example, the Qur’anic prohibition which provides in an address to the believers: ‘Do not approach adultery’ (al-Isra’, 17:32), is itself the embodiment of the hukm shar`i, according to the ulema of usul. But according to the fuqaha, it is the effect of the demand in this ayah, namely the prohibition (tahrim) which represents the hukm shari. Similarly, the Qur’anic text in respect of the permissibility of hunting which we earlier quoted is itself the embodiment of the hukm shar`i according to the ulema of usul, but it is the effect of that text, namely the permissibility (ibahah) which is the hukm according to the fuqaha’. Having explained this difference of perspective between the ulema of usul and the fuqaha’, it will be noted, however, that it is of no practical consequence concerning the rulings of the Shari’ah, in that the two aspects of hukm that they highlight are to all intents and purposes concurrent.
Hukm shar’i is divided into the two main varieties of al-hukm al-taklifi (defining law) and al-hukm al- wad’i (declaratory law). The former consists of a demand or an option, whereas the latter consists of an enactment only. `Defining Law’ is a fitting description of al-hukm al-taklifi, as it mainly defines the extent of man’s liberty of action. Al-hukm al-wad’i is rendered ‘declaratory law’, as this type of hukm mainly declares the legal relationship between the cause (sabab) and its effect (musabbab) or between the condition (shart) and its object (mashrut). Defining law may thus be described as a locution or communication from the lawgiver which demands the mukallaf to do something or forbids him from doing something, or gives him an option between the two. This type of hukm occurs in the well-known five categories of wajib (obligatory), mandub (recommended), haram (forbidden), makruh (abominable) and mubah (permissible). Declaratory law is also subdivided into the five categories of sabab (cause), shart (condition), mani’ (hindrance), `azimah (strict law) as opposed to rukhsah (concessionary law), and sahih (valid) as opposed to batil (null and void). We shall discuss the defining law and its various sub-divisions first.
by M. H. Kamali.
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