When the sabab is present, whether it is within or beyond the control of the mukallaf, its effect (i.e. the
musabbab) is automatically present even if the mukallaf had not intended it to be. For example, when a
man divorces his wife by a revocable talaq, he is entitled to resume marital relations with her even it he
openly denies himself that right. Similarly, when a man enters into a contract of marriage, he is
obligated to provide dower and maintenance for his wife even if he explicitly stipulates the opposite in
their contract. For once the Lawgiver identifies something as a cause, the effect of that cause comes
about by virtue of the Lawgiver's decree regardless of whether the mukallaf intended it to be so or
not.
[45. Shawkani, Irshad, p.6; Khallaf, `Ilm; p. 118; Abu `Id, Mabahith, p. 92.]
II.2 Condition (Shart)
A shart is defined as an evident and constant attribute whose absence necessitates the absence of the
hukm but whose presence does not automatically bring about its object (mashrut). For example, the
presence of a valid marriage is a precondition of divorce, her it does not mean that when there is a valid
marriage, it must lead to divorce. Similarly, the ablution (wudu') is a necessary condition of salah, but
the presence of wudu does not necessitate salah.
A condition normally complements the cause and gives it its full effect. Killing is, for example, the
cause of retaliation; however, this is on condition that it is deliberate and hostile. The contract of
marriage legalises/causes sexual enjoyment between the spouses; however, this is on condition that two
witnesses testify to the marriage. The legal consequences of a contract are not fully realised without the
fulfillment of its necessary conditions.
A condition may be laid down by the Lawgiver, or by the mukallaf. Whenever the former enacts a
condition, it is referred to as shart shar'i, or 'legal condition', but if it is a condition which is stipulated
by the mukallaf, it is referred to shart ja'li, or 'improvised condition'. An example of the former is
witnesses in a marriage contract, and of the latter, the case when spouses stipulate in their marriage
contract the condition that they will reside in a particular locality.
Shart also differs with rukn (pillar, essential requirement) in that the latter partakes in the essence of a
thing. This would mean that the law or hukm, could not exist in the absence of its rukn. When the whole
or even a part of the rukn is absent, the hukm collapses completely, with the result that the latter
becomes null and void (batil). A shart, on the other hand, does not partake in the essence of a hukm,
although it is a complementary part of it. Bowing and prostration (ruku' and sajdah), for example, are
each an essential requirement (rukn) of salah and partake in the very essence of salah, but ablution is a
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condition of salah as it is an attribute whose absence disrupts the salah but which does not partake in its
essence.
[46. Khallaf, `Ilm, p. 118; Abu `Id, Mabahith, pp. 96-99; Qasim, Usul, p. 231.]
II.3 Hindrance (Mani`)
A mani` is defined as an act or an attribute whose presence either nullifies the hukm or the cause of the
hukm. In either case, the result is the same, namely that the presence of the mani' means the absence of
the hukm. For example, difference of religion, and killing, are both obstacles to inheritance between a
legal heir and his deceased relative, despite the fact that there may exist a valid tie of kinship (qarabah)
between them: when the obstacle is present, the hukm, which is inheritance, is absent.
From the viewpoint of its effect on the cause (sabab) or on the hukm itself, the mani' is divided into two
types. First, the mani` which affects the cause in the sense that its presence nullifies the cause. An
example of this is the indebtedness of a person who is liable to the payment of zakah. The fact of his
being ill debt hinders the cause of zakah, which is ownership of property. A person who is in debt to the
extent of insolvency is no longer considered, for purposes of zakah, to be owning any property at all.
Thus when the cause is nullified, the hukm itself, which is the duty to pay zakah, is also nullified.
Secondly, there is the hindrance which affects the hukm. The presence of this type of hindrance nullifies
the hukm directly, even if the cause and the condition are both present. An example of this is paternity,
which hinders retaliation: if a father kills his son, he is not liable to retaliation although he may be
punished otherwise. Paternity thus hinders retaliation according to the majority of ulema (except Imam
Malik) despite the presence of the cause of retaliation, which is killing, and its condition, which is
hostility and the intention to kill. Imam Malik has held, on the other hand, that the father may be
retaliated against for the deliberate killing of his offspring.
II.4 Strict Law (`Azimah) and Concessionary Law (Rukhsah)
[47. Khallaf, `Ilm, p. 120; Abu `Id, Mabahith, p. 101.]
A law, or hukm, is an 'azimah when it is in its primary and unabated rigour without reference to any
attenuating circumstances which may soften its original force or even entirely suspend it. It is, in other
words, a law as the Lawgiver had intended it in the first place. For example, salah, zakah, the hajj,
jihad, etc., which God has enjoined upon all competent individuals, are classified under 'azimah. A law,
or hukm, is a rukhsah, by contrast, when it is considered in conjunction with attenuating circumstances.
Whereas `azimah is the law in its normal state, rukhsah embodies the exceptions, if any, that the
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Lawgiver has granted with a view to bringing facility and ease in difficult circumstances. Thus the law
which grants a concession to travelers to break the fast during Ramadan is an exception to the norm that
requires everyone to fast. The concessionary law in this case is valid only for the duration of traveling,
after which the 'azimah must be complied with again. Similarly, if a Muslim is compelled to renounce
his faith, he is permitted to do so even though the strict law would require him to persist in his faith
until death. The excuse in this case is founded in the right of the person to life, and is clearly granted in
the Qur'an (al-Nahl, 16:106), which allows the utterance of words of infidelity under duress. Strict law
may consist of either commands or prohibitions. Thus the prohibition of murder, theft, adultery, winedrinking,
etc., are all instances of 'azimah
in
the Qur'an.
[48. Aghnides, Muhammedan Theories, p. 85ff; Abu `Id, Mabahith, p. 104.]
`Azimah is a command of the Lawgiver which binds the mukallaf, while rukhsah embodies a concession
in respect of that command. The two are interrelated in that rukhsah can only exist when there is
`azimah in the first place. God Almighty has not made, for example, fasting in the month of Shawwal
(the month following Ramadan) obligatory upon Muslims. This is not a concession, as there exists no
obligations in the first place. Similarly, the normal state of ibahah regarding foods and drinks is not
rukhsah, whereas the permission to eat prohibited meat in certain circumstances is rukhsah. It would
also be incorrect to call the permissibility of tayammum (i.e. dry ablution with clean earth or sand) in
the absence of water a rukhsah: when there is no water it is not possible to make an ablution proper
wudu' in the first place. But tayammum is a rukhsah if it is a substitute for wudu' when the weather is
extremely cold. The point is that in rukhsah the individual must be able to take an alternative course of
action.
[49. Ghazali, Mustasfa, I, 62-63.]
Rukhsah occurs to any of four varieties. Firstly, in the form of permitting a prohibited act on grounds of
necessity, such as eating the flesh of a carcass, and drinking wine at the point of starvation or extreme
thirst. Secondly, rukhsah may occur in the form of omitting a wajib when conformity to that wajib
causes hardship, such as the concession granted to the traveler to shorten the quadruple salah, or not to
observe the fasting of Ramadan. Thirdly, in the area of transactions, rukhsah occurs in the form of
validating contracts which would normally be disallowed. For example, lease and hire (ijarah), advance
sale (salam) and order for the manufacture of goods (istisna`) are all anomalous, as the object of
contract therein is non-existent at the time of contract, but they have been exceptionally permitted in
order to accommodate the public need for such transactions. And lastly, rukhsah occurs in the form of
concessions to the Muslim ummah from certain rigorous laws which were imposed under previous
revelations. For example, zakah to the extent of one-quarter of one's property, the impermissibility of
salah outside a mosque, and the illegality of taking booty (i.e. ghanimah), which were imposed on
people under previous religions, have been removed by the Shari'ah of Islam.
Mabahith, pp. 106-112.]
II.5 Valid, Irregular and Void (Sahih, Fasid, Batil)
[50. Abu Zahrah, Usul, p. 50; Abu `Id,
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These are Shari'ah values which describe and evaluate legal acts incurred by the mukallaf. To evaluate
an act according to these criteria depends on whether or not the act in question fulfils the essential
requirements (arkan) and conditions (shurut) that the Shari'ah has laid down for it, as well as to ensure
that there exist no obstacles to hinder its proper conclusion. For example, salah is a shar'i act and is
evaluated as valid when it fulfils all the essential requirements and conditions that the Shari'ah has
provided in this regard. Conversely, salah becomes void when any of its essential requirements and
conditions are lacking. Similarly, a contract is described as valid when it fulfils all of its necessary
requirements, and where there is nothing to hinder its conclusion; otherwise it is void. When salah is
performed according to its requirements, it fulfils the wajib, otherwise, the wajib remains unfulfilled. A
valid contract gives rise to all of its legal consequences whereas a void contract fails to satisfy its legal
purpose.
The ulema are in agreement to the effect that acts of devotion (`ibadat) can either be valid or void, in
the sense that there is no intermediate category in between. Legal acts are valid when they fulfill all the
requirements pertaining to the essential requirements (arkan), causes, conditions and hindrances, and
are void when any of these is lacking or deficient. An act of devotion which is void is nom-existent ab
initio and of no consequence whatsoever. The majority of ulema have maintained a similar view with
regard to transactions, namely, that a transaction is valid when it is complete in all respects. Only a
valid contract of sale, for example, can give rise to its legal consequences, namely, to transfer
ownership of the object of sale to the buyer and to establish the vendor's ownership over its price
(thaman). A contract is void when it is deficient in respect of any of its requirements, although the
Hanafis are in disagreement with the majority over the precise nature of this deficiency. The majority of
ulema maintain that invalidity is a monolithic concept in that there are no shades and degrees of
invalidity. An act or transaction is either valid or void, and there is nothing in between. According to
this view, fasid and batil are two words with the same meaning, whether in reference to devotional
matters or to civil transactions. Likewise, to the majority it makes no difference whether the deficiency
in a contract affects an essential element (rukn) such as the sale of a dead carcass, or a condition, such
as sale for an unspecified price; both are void and non-existent ab initio.
The Hanafis have, however, distinguished an intermediate category between the valid and void, namely
the fasid. When the deficiency in a contract affects an essential requirement (rukn), the contract is null
and void and fulfils no legal propose. If, however, the deficiency in a contract only affects a condition,
the contract is fasid but not void. A fasid contract, although deficient in some respects, is still a contract
and produces some of its legal consequences, but not all. Thus a fasid contract of sale establishes the
purchaser's ownership over the object of sale when he has taken possession thereof, but does not entitle
the purchaser to the usufruct (intifa'). Similarly, in the case of an irregular contract of marriage, such as
one without witnesses, the spouses or the qadi must either remove the deficiency or dissolve the
marriage, even if the marriage has been consummated. If the deficiency is known before
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consummation, the consummation is unlawful. But the wife is still entitled to the dower (mahr) and
must observe the waiting period of `iddah upon dissolution of marriage. The offspring of a fasid
marriage is legitimate, but the wife is not entitled to maintenance, and no right of inheritance between
the spouses can proceed from such a marriage.
The Hanafis describe the fasid as something which is essentially lawful (mashru`) but is deficient in
respect of an attribute (wasf) as opposed to the batil which is unlawful (ghayr mashru') on account of its
deficiency in regard to both essence (asl) and attribute The Hanafi approach to the fasid is also
grounded in the idea that the deficiency which affects the attribute but not the essence of a transaction
can often be removed and rectified. If, for example, a contract of sale is concluded without assigning a
specified price, it is possible to specify the price (thaman) after the conclusion of the contract and thus
rectify the irregularity at a later opportunity, that is, as soon as it is known to exist or as soon as
possible.
[51. Abu Zahrah, Usul, pp. 51-52; Abu `Id, Mabahith. pp. 103-104; Qasim, Usul, pp. 236-238.]
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
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is founded in the command of the Lawgiver. Neither is human intellect, or 'aql, alone, a source of law
in its own right.
[52. Ghazali, Mustasfa, I, 53; Abu Zahrah, Usul, p. 54.]
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).
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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.
Shawkani, Irshad, p.7. Abu Zahrah, Usul, p.57ff; Khallaf, 'Ilm, p. 97.]
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.
Khallaf, 'Ilm, p.98; Abu 'Id, Mabahith, p.121.]
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.
Mustasfa, I, 136.]
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.
[56. Shawkani, Irshad, p. 7.]
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.
36.]
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[53.
[54. Ghazali, Mustasfa, I, 36;
[55. Ghazali,
[57. Ghazali, Mustasfa, I,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.
[58. Abu Zahrah Usul, p. 56; Khallaf, 'Ilm, p. 99; Abu `Id, Mabahith, p. 123; Qasim, Usul, pp.239-243.]
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),
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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.
[59. Khallaf, `Ilm, p. 128; Abu Zahrah, Usul, p. 249.]
In order to constitute the subject matter of a hukm, the conduct which the individual is required to do, or
avoid doing, must fulfill 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.
[60. Knowledge in this context means understanding the nature of a command or a prohibition
by the individual to the extent that he can act upon it. It does not mean affirmation of the mind (tasdiq). For if this were to be a requirement, the unbelievers would
have been excluded from the meaning of mukallaf, which they are not. See Shawkani, Irshad, p. 11.]
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
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beyond the capacity of the individual in view of his particular conditions.
128ff; Abu Zahrah, Usul, 250ff.]
[61. Shawkani, Irshad, p. 11; Khallaf, `Ilm, p.
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 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.'
[62. Ibn Hanbal, Musnad, II, 108.]
In yet another Hadith we read an address to the believers, who are asked: `fulfill your duties to the
extent of your ability',
[63. Muslim, Sahih Muslim, p.104,. Hadith no.378.]
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
Principles of Islamic Jurisprudence ~
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undoubtedly onerous in the extreme. But it is deemed necessary and warranted in view of the values
that are upheld and defended thereby.
[64. Cf. Abu `Id, Mabahith, p.139.]
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.
p.256ff.]
[65. Abdur Rahim, Jurisprudence, p. 202; Abu Zahrah, Usul,
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.
128.]
[66. Khallaf, `Ilm, p. 128; Abu 'Id, Mabahith, p.
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 'id 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.
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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).
Nazariyyah al-Haqq', p.179; Abu 'Id, Mabahith, p. 141ff.]
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 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 prayers, or from the payment of zakah.
Haqq', p. 181.]
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[67. Abu Sinnah,
[68. Abu Sinnah, Nazariyyah al-
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 a
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.
Usul, p. 257; Abu 'Id, Mabahith, p. 145.]
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 inhere 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'.
[70. Cf. Abdur Rahim, Jurisprudence, p. 217.]
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
in 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.
[71. Khallaf, 'Ilm, p. 136.]
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
Principles of Islamic Jurisprudence ~ Kamali 304
[69. Abu Zahrah,
musabbab) is automatically present even if the mukallaf had not intended it to be. For example, when a
man divorces his wife by a revocable talaq, he is entitled to resume marital relations with her even it he
openly denies himself that right. Similarly, when a man enters into a contract of marriage, he is
obligated to provide dower and maintenance for his wife even if he explicitly stipulates the opposite in
their contract. For once the Lawgiver identifies something as a cause, the effect of that cause comes
about by virtue of the Lawgiver's decree regardless of whether the mukallaf intended it to be so or
not.
[45. Shawkani, Irshad, p.6; Khallaf, `Ilm; p. 118; Abu `Id, Mabahith, p. 92.]
II.2 Condition (Shart)
A shart is defined as an evident and constant attribute whose absence necessitates the absence of the
hukm but whose presence does not automatically bring about its object (mashrut). For example, the
presence of a valid marriage is a precondition of divorce, her it does not mean that when there is a valid
marriage, it must lead to divorce. Similarly, the ablution (wudu') is a necessary condition of salah, but
the presence of wudu does not necessitate salah.
A condition normally complements the cause and gives it its full effect. Killing is, for example, the
cause of retaliation; however, this is on condition that it is deliberate and hostile. The contract of
marriage legalises/causes sexual enjoyment between the spouses; however, this is on condition that two
witnesses testify to the marriage. The legal consequences of a contract are not fully realised without the
fulfillment of its necessary conditions.
A condition may be laid down by the Lawgiver, or by the mukallaf. Whenever the former enacts a
condition, it is referred to as shart shar'i, or 'legal condition', but if it is a condition which is stipulated
by the mukallaf, it is referred to shart ja'li, or 'improvised condition'. An example of the former is
witnesses in a marriage contract, and of the latter, the case when spouses stipulate in their marriage
contract the condition that they will reside in a particular locality.
Shart also differs with rukn (pillar, essential requirement) in that the latter partakes in the essence of a
thing. This would mean that the law or hukm, could not exist in the absence of its rukn. When the whole
or even a part of the rukn is absent, the hukm collapses completely, with the result that the latter
becomes null and void (batil). A shart, on the other hand, does not partake in the essence of a hukm,
although it is a complementary part of it. Bowing and prostration (ruku' and sajdah), for example, are
each an essential requirement (rukn) of salah and partake in the very essence of salah, but ablution is a
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condition of salah as it is an attribute whose absence disrupts the salah but which does not partake in its
essence.
[46. Khallaf, `Ilm, p. 118; Abu `Id, Mabahith, pp. 96-99; Qasim, Usul, p. 231.]
II.3 Hindrance (Mani`)
A mani` is defined as an act or an attribute whose presence either nullifies the hukm or the cause of the
hukm. In either case, the result is the same, namely that the presence of the mani' means the absence of
the hukm. For example, difference of religion, and killing, are both obstacles to inheritance between a
legal heir and his deceased relative, despite the fact that there may exist a valid tie of kinship (qarabah)
between them: when the obstacle is present, the hukm, which is inheritance, is absent.
From the viewpoint of its effect on the cause (sabab) or on the hukm itself, the mani' is divided into two
types. First, the mani` which affects the cause in the sense that its presence nullifies the cause. An
example of this is the indebtedness of a person who is liable to the payment of zakah. The fact of his
being ill debt hinders the cause of zakah, which is ownership of property. A person who is in debt to the
extent of insolvency is no longer considered, for purposes of zakah, to be owning any property at all.
Thus when the cause is nullified, the hukm itself, which is the duty to pay zakah, is also nullified.
Secondly, there is the hindrance which affects the hukm. The presence of this type of hindrance nullifies
the hukm directly, even if the cause and the condition are both present. An example of this is paternity,
which hinders retaliation: if a father kills his son, he is not liable to retaliation although he may be
punished otherwise. Paternity thus hinders retaliation according to the majority of ulema (except Imam
Malik) despite the presence of the cause of retaliation, which is killing, and its condition, which is
hostility and the intention to kill. Imam Malik has held, on the other hand, that the father may be
retaliated against for the deliberate killing of his offspring.
II.4 Strict Law (`Azimah) and Concessionary Law (Rukhsah)
[47. Khallaf, `Ilm, p. 120; Abu `Id, Mabahith, p. 101.]
A law, or hukm, is an 'azimah when it is in its primary and unabated rigour without reference to any
attenuating circumstances which may soften its original force or even entirely suspend it. It is, in other
words, a law as the Lawgiver had intended it in the first place. For example, salah, zakah, the hajj,
jihad, etc., which God has enjoined upon all competent individuals, are classified under 'azimah. A law,
or hukm, is a rukhsah, by contrast, when it is considered in conjunction with attenuating circumstances.
Whereas `azimah is the law in its normal state, rukhsah embodies the exceptions, if any, that the
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Lawgiver has granted with a view to bringing facility and ease in difficult circumstances. Thus the law
which grants a concession to travelers to break the fast during Ramadan is an exception to the norm that
requires everyone to fast. The concessionary law in this case is valid only for the duration of traveling,
after which the 'azimah must be complied with again. Similarly, if a Muslim is compelled to renounce
his faith, he is permitted to do so even though the strict law would require him to persist in his faith
until death. The excuse in this case is founded in the right of the person to life, and is clearly granted in
the Qur'an (al-Nahl, 16:106), which allows the utterance of words of infidelity under duress. Strict law
may consist of either commands or prohibitions. Thus the prohibition of murder, theft, adultery, winedrinking,
etc., are all instances of 'azimah
in
the Qur'an.
[48. Aghnides, Muhammedan Theories, p. 85ff; Abu `Id, Mabahith, p. 104.]
`Azimah is a command of the Lawgiver which binds the mukallaf, while rukhsah embodies a concession
in respect of that command. The two are interrelated in that rukhsah can only exist when there is
`azimah in the first place. God Almighty has not made, for example, fasting in the month of Shawwal
(the month following Ramadan) obligatory upon Muslims. This is not a concession, as there exists no
obligations in the first place. Similarly, the normal state of ibahah regarding foods and drinks is not
rukhsah, whereas the permission to eat prohibited meat in certain circumstances is rukhsah. It would
also be incorrect to call the permissibility of tayammum (i.e. dry ablution with clean earth or sand) in
the absence of water a rukhsah: when there is no water it is not possible to make an ablution proper
wudu' in the first place. But tayammum is a rukhsah if it is a substitute for wudu' when the weather is
extremely cold. The point is that in rukhsah the individual must be able to take an alternative course of
action.
[49. Ghazali, Mustasfa, I, 62-63.]
Rukhsah occurs to any of four varieties. Firstly, in the form of permitting a prohibited act on grounds of
necessity, such as eating the flesh of a carcass, and drinking wine at the point of starvation or extreme
thirst. Secondly, rukhsah may occur in the form of omitting a wajib when conformity to that wajib
causes hardship, such as the concession granted to the traveler to shorten the quadruple salah, or not to
observe the fasting of Ramadan. Thirdly, in the area of transactions, rukhsah occurs in the form of
validating contracts which would normally be disallowed. For example, lease and hire (ijarah), advance
sale (salam) and order for the manufacture of goods (istisna`) are all anomalous, as the object of
contract therein is non-existent at the time of contract, but they have been exceptionally permitted in
order to accommodate the public need for such transactions. And lastly, rukhsah occurs in the form of
concessions to the Muslim ummah from certain rigorous laws which were imposed under previous
revelations. For example, zakah to the extent of one-quarter of one's property, the impermissibility of
salah outside a mosque, and the illegality of taking booty (i.e. ghanimah), which were imposed on
people under previous religions, have been removed by the Shari'ah of Islam.
Mabahith, pp. 106-112.]
II.5 Valid, Irregular and Void (Sahih, Fasid, Batil)
[50. Abu Zahrah, Usul, p. 50; Abu `Id,
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These are Shari'ah values which describe and evaluate legal acts incurred by the mukallaf. To evaluate
an act according to these criteria depends on whether or not the act in question fulfils the essential
requirements (arkan) and conditions (shurut) that the Shari'ah has laid down for it, as well as to ensure
that there exist no obstacles to hinder its proper conclusion. For example, salah is a shar'i act and is
evaluated as valid when it fulfils all the essential requirements and conditions that the Shari'ah has
provided in this regard. Conversely, salah becomes void when any of its essential requirements and
conditions are lacking. Similarly, a contract is described as valid when it fulfils all of its necessary
requirements, and where there is nothing to hinder its conclusion; otherwise it is void. When salah is
performed according to its requirements, it fulfils the wajib, otherwise, the wajib remains unfulfilled. A
valid contract gives rise to all of its legal consequences whereas a void contract fails to satisfy its legal
purpose.
The ulema are in agreement to the effect that acts of devotion (`ibadat) can either be valid or void, in
the sense that there is no intermediate category in between. Legal acts are valid when they fulfill all the
requirements pertaining to the essential requirements (arkan), causes, conditions and hindrances, and
are void when any of these is lacking or deficient. An act of devotion which is void is nom-existent ab
initio and of no consequence whatsoever. The majority of ulema have maintained a similar view with
regard to transactions, namely, that a transaction is valid when it is complete in all respects. Only a
valid contract of sale, for example, can give rise to its legal consequences, namely, to transfer
ownership of the object of sale to the buyer and to establish the vendor's ownership over its price
(thaman). A contract is void when it is deficient in respect of any of its requirements, although the
Hanafis are in disagreement with the majority over the precise nature of this deficiency. The majority of
ulema maintain that invalidity is a monolithic concept in that there are no shades and degrees of
invalidity. An act or transaction is either valid or void, and there is nothing in between. According to
this view, fasid and batil are two words with the same meaning, whether in reference to devotional
matters or to civil transactions. Likewise, to the majority it makes no difference whether the deficiency
in a contract affects an essential element (rukn) such as the sale of a dead carcass, or a condition, such
as sale for an unspecified price; both are void and non-existent ab initio.
The Hanafis have, however, distinguished an intermediate category between the valid and void, namely
the fasid. When the deficiency in a contract affects an essential requirement (rukn), the contract is null
and void and fulfils no legal propose. If, however, the deficiency in a contract only affects a condition,
the contract is fasid but not void. A fasid contract, although deficient in some respects, is still a contract
and produces some of its legal consequences, but not all. Thus a fasid contract of sale establishes the
purchaser's ownership over the object of sale when he has taken possession thereof, but does not entitle
the purchaser to the usufruct (intifa'). Similarly, in the case of an irregular contract of marriage, such as
one without witnesses, the spouses or the qadi must either remove the deficiency or dissolve the
marriage, even if the marriage has been consummated. If the deficiency is known before
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consummation, the consummation is unlawful. But the wife is still entitled to the dower (mahr) and
must observe the waiting period of `iddah upon dissolution of marriage. The offspring of a fasid
marriage is legitimate, but the wife is not entitled to maintenance, and no right of inheritance between
the spouses can proceed from such a marriage.
The Hanafis describe the fasid as something which is essentially lawful (mashru`) but is deficient in
respect of an attribute (wasf) as opposed to the batil which is unlawful (ghayr mashru') on account of its
deficiency in regard to both essence (asl) and attribute The Hanafi approach to the fasid is also
grounded in the idea that the deficiency which affects the attribute but not the essence of a transaction
can often be removed and rectified. If, for example, a contract of sale is concluded without assigning a
specified price, it is possible to specify the price (thaman) after the conclusion of the contract and thus
rectify the irregularity at a later opportunity, that is, as soon as it is known to exist or as soon as
possible.
[51. Abu Zahrah, Usul, pp. 51-52; Abu `Id, Mabahith. pp. 103-104; Qasim, Usul, pp. 236-238.]
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
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is founded in the command of the Lawgiver. Neither is human intellect, or 'aql, alone, a source of law
in its own right.
[52. Ghazali, Mustasfa, I, 53; Abu Zahrah, Usul, p. 54.]
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).
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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.
Shawkani, Irshad, p.7. Abu Zahrah, Usul, p.57ff; Khallaf, 'Ilm, p. 97.]
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.
Khallaf, 'Ilm, p.98; Abu 'Id, Mabahith, p.121.]
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.
Mustasfa, I, 136.]
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.
[56. Shawkani, Irshad, p. 7.]
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.
36.]
Principles of Islamic Jurisprudence ~ Kamali 298
[53.
[54. Ghazali, Mustasfa, I, 36;
[55. Ghazali,
[57. Ghazali, Mustasfa, I,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.
[58. Abu Zahrah Usul, p. 56; Khallaf, 'Ilm, p. 99; Abu `Id, Mabahith, p. 123; Qasim, Usul, pp.239-243.]
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),
Principles of Islamic Jurisprudence ~
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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.
[59. Khallaf, `Ilm, p. 128; Abu Zahrah, Usul, p. 249.]
In order to constitute the subject matter of a hukm, the conduct which the individual is required to do, or
avoid doing, must fulfill 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.
[60. Knowledge in this context means understanding the nature of a command or a prohibition
by the individual to the extent that he can act upon it. It does not mean affirmation of the mind (tasdiq). For if this were to be a requirement, the unbelievers would
have been excluded from the meaning of mukallaf, which they are not. See Shawkani, Irshad, p. 11.]
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
Principles of Islamic Jurisprudence ~
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beyond the capacity of the individual in view of his particular conditions.
128ff; Abu Zahrah, Usul, 250ff.]
[61. Shawkani, Irshad, p. 11; Khallaf, `Ilm, p.
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 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.'
[62. Ibn Hanbal, Musnad, II, 108.]
In yet another Hadith we read an address to the believers, who are asked: `fulfill your duties to the
extent of your ability',
[63. Muslim, Sahih Muslim, p.104,. Hadith no.378.]
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
Principles of Islamic Jurisprudence ~
Kamali 301
undoubtedly onerous in the extreme. But it is deemed necessary and warranted in view of the values
that are upheld and defended thereby.
[64. Cf. Abu `Id, Mabahith, p.139.]
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.
p.256ff.]
[65. Abdur Rahim, Jurisprudence, p. 202; Abu Zahrah, Usul,
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.
128.]
[66. Khallaf, `Ilm, p. 128; Abu 'Id, Mabahith, p.
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 'id 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.
Principles of Islamic Jurisprudence ~
Kamali 302
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).
Nazariyyah al-Haqq', p.179; Abu 'Id, Mabahith, p. 141ff.]
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 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 prayers, or from the payment of zakah.
Haqq', p. 181.]
Principles of Islamic Jurisprudence ~ Kamali 303
[67. Abu Sinnah,
[68. Abu Sinnah, Nazariyyah al-
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 a
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.
Usul, p. 257; Abu 'Id, Mabahith, p. 145.]
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 inhere 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'.
[70. Cf. Abdur Rahim, Jurisprudence, p. 217.]
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
in 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.
[71. Khallaf, 'Ilm, p. 136.]
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
Principles of Islamic Jurisprudence ~ Kamali 304
[69. Abu Zahrah,
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