17.III. THE PILLARS (ARKAN) OF HUKM SHAR’I
The hukm shar’i, that is, the law or value of Shari’ah, consists of three essential components. First of all, the hukm must have been authorised by the hakim, that is, the Lawgiver; it must also have a subject matter which is referred to as mahkum fih, and then an audience, namely the mahkum `alayh, who must be capable of understanding or at least of receiving the hukm. We shall treat each of these under a separate heading, as follows.
III.1 The Lawgiver (Hakim)
The ulema are unanimous to the effect that the source of all law in Islam is God Most High, whose will and command is known to the mukallaf either directly through divine revelation, or indirectly by means of inference, deduction and ijtihad. The Qur’an repeatedly tells us that ‘The prerogative of command belongs to God alone’ (Al-Imran, 6:57). Law and justice in the Muslim community must derive their validity and substance from the principles and values that the Lawgiver has sanctioned. This is the purport of the Qur’anic text in sura al-Ma’idah (5:45 and 5:49) which declares to be unbelievers those who refuse to accept the authority of the divine law. Even the Prophet does not partake in the prerogative of command, as his command, or that of the ruler, the imam, the master or the father for that matter, does not constitute binding authority in its own right; instead, obedience to such individuals is founded in the command of the Lawgiver. Neither is human intellect, or ‘aql, alone, a source of law in its own right.
The ulema are in disagreement, however, as to the way in which the will or the hukm of the Lawgiver regarding the conduct of the mukallaf is to be known and identified. Can we know it by means of our intellectual faculty without the aid and mediation of messengers and scriptures, or is the human intellect incapable of ascertaining the law without divine guidance? A similar question arises concerning harmony and concordance between reason and revelation, in that when the human intellect determines that something is good (hasan) or evil (qabih), is it imperative that the hukm of the Lawgiver should be identical with the dictates of reason? In response to these questions, the ulema have advanced three different views, which are as follows:
Firstly, the Ash’arites, namely the followers of Abu’l-Hasan al-Ash’ari (d. 324 A.H.), maintain that 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 the aid of divine guidance. For human reasoning and judgment are liable to err. While an act may be evaluated by one person as good, another person might say the opposite. We normally say, for example, that honesty is good, but when it is likely to cause the death of an innocent person in the hands of a tyrant, it may be regarded as evil. It is therefore not for the human intellect to determine the values of things, and we cannot say that what the ‘aql deems to be good is necessarily good in the sight of God, or that what it considers evil is also evil in His sight. The Ash’arites thus maintain that right and wrong are not determined by reference to the nature of things, or our perception thereof, but are determined as such by God. When the lawgiver permits or demands an act, we know that it is right/good, and when He forbids an act, it is certain that the act in question is wrong/evil. Hence the criterion of right and wrong is shar’, not ‘aql. According to this view, which is held by the majority of ulema, what the law commands is good and what it forbids is evil. This view is in accord with what is known as the principle of the rule of law (also known as the principle of legality) which establishes that 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 a clear communication. Thus when a person happens to be living in total isolation and has never received the message of the Lawgiver, he is not a mukallaf and deserves neither reward nor punishment. This view quotes in support the Qur’anic proclamation: `And We never punish until We send a messenger’ (al-Isra, 17:15), which indicates that reward and punishment are based on the revealed law, not the human intellect. Elsewhere in the Qur’an, we also read, in a reference to the purpose of divine revelation, `[…] so that after the coming of messengers, mankind would have no plea against God’ (al-Nisa, 4:165). In yet another place the Qur’an affirms that punishment is imposed only after the people are duly warned but not before: in a reference to the disbelievers, the Qur’an thus proclaims: ‘Had We inflicted on them a penalty before this [revelation] they would have said: Our Lord! If only you had sent us a messenger, we would have followed your signs [. . .]’ (Ta-Ha, 20:134).
The Ash’arites maintain the view that the commands of the Lawgiver relate to the conduct of the mukallaf only after the advent of Islam and that prior to this event there is no basis for obligation. Infidelity (kufr) is not haram, nor is faith (lyman) wajib before the revelation actually declares it so.
Secondly, the Mu’tazilah, that is, the followers of Ibrahim al-Nazzam, have held the view that human intellect can identify the law of God regarding the conduct of the mukallaf even without the mediation of scriptures and messengers. The shar’ only removes the curtain from what the `aql could itself perceive, and in essence the former is identical with the latter. The intellect (`aql) can identify the good and evil in human conduct by reference to its benefit and harm. God’s law concerning the conduct of the mukallaf is not only identifiable by the human intellect but is also identical with the dictates of the human intellect. God only asks the mukallaf to do what is beneficial and forbids him from doing what is harmful. Whatever the `aql sees as good or right, is also good in the sight of God, and vice versa. A person who acts against the requirement of reason may therefore be punished and one who acts in harmony with it may be rewarded. In this way, 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, and his punishment or reward can be determined accordingly. The Mu’tazilah assert that it is impossible for God to command something which is inherently evil or to prohibit something that is intrinsically good, which obviously means that shar` and `aql are always in agreement with one another.
Al-Ghazali is critical of the Mu’tazili view for its propensity to turn the determination of good and evil into a totally relative proposition. When an act is agreeable to one person and disagreeable to another, it is good from the viewpoint of the former and evil from that of the latter. Such a relativistic and circumstantial approach to good and evil is totally unacceptable. The Shari’ah does not and cannot operate on this basis. Instead, the Shari’ah evaluates the acts and conduct of the mukallaf on an objective plane regardless of whether they agree or disagree with particular interests. When the Lawgiver commands an act, or when he praises it, it is praiseworthy and good in all cases. Al-Shawkani is also critical of the Mu’tazili view, and highlights some of its weaknesses by saying that certain areas of human conduct are not amenable to rational evaluation. It is true that ‘aql can determine the value, say, of truth and falsehood, as truth is beneficial and lying is harmful. ‘Aql can also discern the value of saving the life of a drowning or of a starving man, yet it cannot determine the virtue of fasting on the last day of Ramadan or the enormity of fasting on the day which follows it. The good and evil in this case can only be determined by shar, not by aql. Most of the ibadat, including salah and the pilgrimage of hajj, fall under this category. The human intellect may be able to perceive a value in them only because of a benevolence and grace (lutf) therein which prevents obscenity and corruption; but aql alone is unable to assess the precise value of ibadat.
The Mu’tazili approach to the question of right and wrong embodies a utilitarian approach to jurisprudence in the sense that a good law is that which brings the greatest benefit to the largest number. Right and wrong are evaluated from the viewpoint of the benefit and harm that they entail to the person who acts upon it and to others. Acts which do not relate to this context are simply regarded as of no consequence; they are branded as `abath, that is, totally `in vain’.
Thirdly, the Maturidis, namely the followers of Abu Mansur al-Maturidi (d.333 A.H.) have suggested a middle course, which is adopted by the Hanafis and considered to be the most acceptable. According to this view, right and wrong in the conduct of the mukallaf can indeed be ascertained and evaluated by the human intellect. But this does not necessarily mean that the law of God in regard to such conduct is always identical with the dictates of ‘aql, for human intellect is liable to error. The knowledge of right and wrong must therefore be based on divine communication. This view basically combines the two foregoing opinions, but tends to lean more toward the Ash’arites in that the responsibility of the mukallaf is to be determined not with reference to the dictates of human reason but on the basis of the law as the Lawgiver has communicated it. `Aql is capable of discerning good and evil, but this evaluation does not constitute the basis of reward and punishment; which is a matter which is solely determined by the Lawgiver. Whatever the Lawgiver has commanded is right, and merits reward, and whatever He has forbidden is wrong and its perpetrator is liable to punishment. This view also agrees with that of the Mu’tazilah to the extent of its recognition that the inherent values of things are discernible by human intellect which can perceive and detect values in the nature of things. The Maturidis, however, differ with the Mu’tazilah in that they hold that no reward or punishment can be granted on the basis of aql alone.
III.2 The Subject-Matter of Hukm (al-Mahkum Fih)
Mahkum fih denotes the acts, rights and obligations of the mukallaf which constitute the subject-matter of a command, prohibition or permissibility. When the ruling of the Lawgiver occurs in the forms of either wajib or mandub, in either case the individual is required to act in some way. Similarly, when the hukm of the Lawgiver consists of a prohibition (tahrim) or abomination (karahah), it is once again concerned with the conduct of the mukallaf. In sum, all commands and prohibitions are concerned with the acts and conduct of the mukallaf.
When the demand of the Lawgiver occurs in the form of a defining law (al-hukm al-taklifi) such as fasting, jihad, and the payment of zakah, etc., the subject-matter of the hukm is the act of the mukallaf. Similarly, when the demand of the Lawgiver occurs in the form of declaratory law (al-hukm al-wad`i), such as ablution (wudu’) being a condition of salah, or sale which is the cause (sabab) of ownership, or killing which is a hindrance (mani`) to inheritance, the subject-matter of hukm in all these consists of the act of the mukallaf. Occasionally, the mahkum fih does not consist of the conduct of the individual, but even then it is related to it. For example, the arrival of Ramadan which is the cause (sabab) of fasting is not an act of the individual, but is related to the latter in the sense that the effect (musabbab) of that cause, namely the fasting, consists of the act of the mukallaf. In order to constitute the subject matter of a hukm, the conduct which the individual is required to do, or avoid doing, must fulfil the following three conditions.
Firstly, the individual must know the nature of the conduct so that he can perform what is required of him or refrain from that which is forbidden. An ambivalent text or a locution which
does not impart this knowledge cannot constitute the basis of either a command or a prohibition. The ambivalent (mujmal) text of the Qur’an concerning salah, zakah and hajj, for example, did not obligate anyone until these matters were explained and clarified by the Prophet. The manner in which these obligations were to be discharged was also explained in precise terms. Furthermore, the ulema are in agreement to the effect that the necessary instruction or explanations must not be delayed and must be given in time when they are needed, otherwise they would fail to provide the basis of obligation (taklif).
When we say that the individual must know the nature of the act he is required to do, it means that it should be possible for him to obtain such knowledge. Hence when a person is in full possession of his capacities and it is possible for him to learn the law, he is presumed to know his legal obligations. The law is therefore applied to him, and his ignorance of the rules of Shari’ah is no excuse. For if actual knowledge by the individual were to be a requirement of the law, it would be very difficult to prove such knowledge in all cases of violation. It is therefore sufficient to ensure that the individual can acquire knowledge of the Shari’ah either directly or by asking those who have such knowledge.
Secondly, the act which the individual is required to do must be within his capability, or, in the case of a prohibition, be within his capability to avoid. No law may thus demand something which is beyond the capacity of the individual. The principle here is dearly stated in the Qur’an, which declares that `God does not obligate a living soul beyond the limits of his capacity’ (al-Baqarah, 2:256) and that `God puts no burden on any person beyond what He has given him’ (al-Talaq, 65:7).
An act may be conceptually unfeasible, such as asking a person to be awake and asleep at the same time, or asking him to do and not to do something simultaneously. Likewise, an act may be physically impossible, such as ordering a person to fly without the necessary means. No-one may be required to do the impossible, and it makes no difference whether the act is impossible by its nature or whether it is beyond the capacity of the individual in view of his particular conditions.
A corollary of this rule is that no person may be obligated to act on behalf of another person or to stop another competent individual from acting. For this would be tantamount to asking a person to do the impossible. No-one may therefore be legally obligated to pay the zakah on behalf of his brother, or to perform the salah on behalf of his father, or to prevent his neighbour from committing theft. All that one mukallaf may be lawfully expected to do in such situations is to give good advice (nasihah) as a part of his general duty to promote good and to prevent evil to the extent that this is possible for him as a law-abiding citizen.
Similarly, no-one may be obligated to do or not to do something in regard to which he has no choice, such as asking someone to act against his natural and biological functions. Thus when we read in the Hadith a command asking the Muslims to `avoid anger [la taghdab]’, although the manifest (zahir) terms of this Hadith demand avoidance of a natural phenomenon, what it really means is that the adverse consequences of uncontrolled anger which might lead to taking the law into one’s own hands must be avoided. To give another example, the Qur’an orders the believers ‘not to despair over matters that have passed you by, nor to exult over the favours that are bestowed upon you’ (al-Hadid, 57:23). Pleasure and despair are natural phenomena, and as such they are basically beyond the individual’s control. What is really meant here is that one should avoid the consequences of despair such as violence against oneself or another person, and ensure that joy and happiness do not lead to arrogance and contemptuous behaviour.
There is, of course, some hardship involved in all obligations. The kind of hardship that people can tolerate without prejudice or injury is not the aim. It is an intolerable hardship which the Shari’ah does not impose. The Shari’ah, for instance, forbids continuous fasting (sawm al-wisal), or staying up all night for worship. Furthermore, the Shari’ah has granted certain concessions with a view to preventing hardship to individuals, and it is strongly recommended that they be utilised. This is the purport of the reminder contained in the Hadith that ‘God loves to see that His concessions are taken advantage of, just as He hates to see the commission of a sin.’
In yet another Hadith we read an address to the believers, who are asked: `fulfill your duties to the extent of your ability’, which obviously means that legal obligations are only operative within the limits of one’s capacity.
A hukm shar`i may sometimes impose unusual hardship on the individual, such as the fulfillment of certain collective obligations like jihad (holy struggle) and hisbah, that is, promotion of good and prevention of evil, under adverse conditions. Jihad which requires the sacrifice of one’s life is undoubtedly onerous in the extreme. But it is deemed necessary and warranted in view of the values that are upheld and defended thereby.
And lastly, the demand to act or not to act must originate in an authoritative source which can command the obedience of the mukallaf. This would mean that the hukm must emanate from God or His messenger. It is mainly due to this requirement that the proof or evidence in which the law is founded must be identified and explained. Consequently, we find that in their juristic expositions, the fuqaha normally explain the evidential basis (hujjiyyah) of the rules of Shari’ah that they expound, especially rules which are aimed at regulating the conduct of the mukallaf.
The next topic which needs to be discussed under the subject-matter of hukm is the division of rights into the two categories of haqq Allah and haqq al-`abd. The acts of the mukallaf may consist of either a Right of God (haqq Allah) or a Right of Man (haqq al- `abd), or of a combination of both. The Right of God is called so not because it is of any benefit to God, but because it is beneficial to the community at large and not merely to a particular individual. It is, in other words, a public right and differs from the Right of Man, or private right, in that its enforcement is a duty of the state. The enforcement of a private right, on the other hand, is up to the person whose right has been infringed, who may or may nor wish to demand its enforcement. The ulema have further classified these rights under four main categories, which are as follows.
Firstly, acts which exclusively consist of the Right of God, such as acts of devotion and worship, including salah and jihad, which are the pillars of religion and are necessary for the establishment of an Islamic order. These, which are often referred to as huquq Allah al-khalisah, or pure Rights of God’, occur in eight varieties:
a) Rights of God which consist exclusively of worship, such, as professing the faith (iman), salah, zakah, the pilgrimage and jihad.
b) Rights which consist of both worship and financial liability (ma’unah), such as charity given on the occasion of ‘eid al-fitr, marking the end of Ramadan.
c) Rights in which financial liability is greater than worship, like the tithe that is levied on agricultural crops.
d) Rights of God which consist of financial liability but have a propensity toward punishment, such as the imposition of kharaj tax on land in the conquered territories.
e) Rights which consist of punishment only, like the hudud, that is, the prescribed penalties for theft and adultery, and so forth.
f) Rights which consist of minor punishment (`uqubah qasirah), such as excluding the murderer from the inheritance of his victim. This is called `uqubah qasirah on account of the fact that it inflicts only a financial loss.
g) `Punishments which lean toward worship’, such as the penances (kaffarat).
h) Exclusive rights, in the sense that they consist of rights alone and are not necessarily addressed to the mukallaf, such as the community right to mineral wealth or to the spoils of war (ghana’im).
Secondly, acts which exclusively consist of the rights of men, such as the right to enforce a contract, or the right to compensation for loss, the purchaser’s right to own the object he has purchased, the vendor’s right to own the price paid to him, the right of pre-emption (shuf ), and so on. To enforce such rights is entirely at the option of the individual concerned; he may demand them or waive them, even without any consideration.
Thirdly, acts in which the rights of the community and those of individuals, are combined, while of the two the former are preponderate. The right to punish a slanderer (qadhif) belongs, according to the Hanafis, to this class, by reason of the attack made on the honour of one of its members. Since the Right of God is dominant in qadhf, the victim of this offence (i.e. the maqdhuf) cannot exonerate the offender from punishment. The Shafi`is have, however, held the contrary view by saying that qadhf is an exclusive Right of Man and that the person so defamed is entitled to exonerate the defamer. All acts which aim at protecting human life, intellect and property, fall under this category. To implement consultation (shura) in public affairs is one example, or the right of the individual in respect of bay’ah in electing the head of state. According to the Maliki jurist al-Qarafi, all rights in Islam partake in the Right of God in the exclusive sense that there is no right whatsoever without the haqq Allah constituting a part thereof. Thus when a person buys a house, he exercises his private right insofar as it benefits him, but the transaction partakes in the Right of God insofar as the buyer is liable to pay the purchase price. The basic criterion of distinction between the Right of God and the Right of Man is whether it can be exempted by the individual or not. Thus the vendor is able to exonerate the purchaser from paying the price, and a wife is able to exonerate her husband from paying her a dower (mahr), but the individual cannot exonerate anyone from obligatory prayer, or from the payment of zakah.
Fourthly, there are matters in which public and private rights are combined but where the latter preponderate. Retaliation (qisas), and blood-money (diyah) of any kind, whether for life or for grievous injury, fall under this category of rights. The community is entitled to punish such violations, but the right of the heirs in retaliation and in diyah for erroneous killing, and the right of the victim in respect of diyah for injuries, is preponderant in view of the grievance and loss that they suffer as a result. The guardian (wali) of the deceased, in the case of qisas, is entitled to pardon the offender or to accept compensation from him. But the state, which represents the community, is still entitled to punish the offender through a ta’zir punishment even if he is pardoned by the relatives of the deceased.
III.3 Legal Capacity (Ahliyyah)
Being the last of the three pillars (arkan) of hukm shar`i this section is exclusively concerned with the legal capacity of the mahkum `alayh, that is, the person to whom the hukm is addressed, and it looks into the question of whether he is capable of understanding the demand that is addressed to him and whether he comprehends the grounds of his responsibility (taklif). Since the possession of the mental faculty of `aql is the basic criterion of taklif, the law concerns itself with the circumstances that affect the sanity and capacity of the individual, such as minority, insanity, duress, intoxication, interdiction (hajr) and mistake.
Legal capacity is primarily divided into two types: capacity to receive or inherit rights and obligations, referred to as ahliyyah al-wujub, and capacity for the active exercise of rights and obligations, which is referred to as ahliyyah al-ada’. The former may be described as’receptive legal capacity’, and the latter as active legal capacity.
Every person is endowed with legal capacity of one kind or another. Receptive legal capacity is the ability of the individual to receive rights and obligations on a limited scale, whereas active legal capacity enables him to fulfill rights and discharge obligations, to effect valid acts and transactions, and to bear full responsibility toward God and his fellow human beings. The criterion of the existence of receptive legal capacity is life itself, whereas the criterion of active legal capacity is maturity of intellect. Receptive legal capacity is vested in every human being, competent or otherwise. An insane person, a foetus in the womb, a minor and a foolish person (safih), whether in good health or in illness: all possess legal capacity by virtue of their dignity as human beings.
Active legal capacity is only acquired upon attaining a certain level of intellectual maturity and competence. Only a person who understands his acts and his words is competent to conclude a contract, discharge an obligation, or be punished for violating the law. Active legal capacity, which is the basis of responsibility (taklif), is founded in the capacity of the mind to understand and to discern. But since intelligence and discernment are hidden qualities which are not readily apparent to the senses, the law has linked personal responsibility with the attainment of the age of majority (bulugh), which is an obvious phenomenon and can be established by factual evidence. However, it is the intellectual faculty of the individual rather than age as such which determines his legal capacity. This is why an adult who is insane, or an adult of any age who is asleep, is not held responsible for his conduct. The principle here is dearly stated in the Hadith which provides: `The pen is lifted from three persons: the one who is asleep until he wakes, the child until he attains puberty, and the insane person until he regains sanity.
Receptive legal capacity may either be ‘deficient’ or ‘complete’. The receptive legal capacity of a child in the womb is incomplete in the sense that it can only receive certain rights, such as inheritance and bequest, but cannot bear any obligation toward others. Receptive legal capacity is complete when a person can both have rights and bear obligations. This type of legal capacity is acquired by every human being as of the moment of birth. During its infancy and later stages of childhood, a child is capable of discharging, albeit through his guardian, certain obligations in respect, for example, of maintenance, liability for loss (daman), and payment for services rendered to him.
As for the active legal capacity, three possible situations are envisaged. First, a person may be totally lacking in active legal capacity, as in the case of a child during infancy or an insane person of any age. Since neither is endowed with the faculty of intellect, no legal consequences accrue from their words and acts. When a child or a madman kills someone or destroys the property of another person, they can only be held liable with reference to their property, but not to their persons. They cannot be subjected, for example, to retaliation, or to any other type of punishment.
Second, a person may be partially lacking in active legal capacity. Thus a discerning child (al-sabi al-mumayyiz), that is, a child between seven and fifteen years of age, or an idiot (ma’tuh) who is neither insane nor totally 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 if 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.
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.
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.
A person in his death-illness (marad al-mawt) is also deficient of legal capacity, as severe illness and fear of imminent death affect the physical and mental faculties of the individual. But ordinary illness and other conditions which do not impair the intellectual capacity of a person have no bearing on his active legal capacity. This is partly why Imam Abu Hanifah has differed with the majority of jurists by holding the view that foolishness (safahah), indebtedness and carelessness (ghaflah), do not affect the active legal capacity of a person. Abu Hanifah refuses to accept these as proper grounds of interdiction, as in his view the benefit of interdiction in these cases is far outweighed by its possible harm.
by M. H. Kamali.
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