The Legal Provisions ﺔﯿﻋﺮﺸﻟا مﺎﻜﺣﻷا - WordPress.com 22, 2014 · The Legal...

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Shariah Aspect of Business And Finance(GIM6213)

The Legal Provisions(األحكام الشرعیة)

Assoc. Prof. Dr. Mohd Fuad Mohd Salleh22 February 2014


Legal provisions (األحكام الشرعیة)Definition

The term Ahkam is the plural of hukm. It has been translated intoEnglish in different ways: Injunction, command, prescription andshariah value.

The theory of hukm shariah is based on the four major elementswhich are:

• Hukm : (حكم) is the Legal judgment of the Islamic law. • Mahkum fih ( فیهمحكم ) or Mahkum bih: is the act of the person

(The arbitrator) • Mahkum alaiyh: is the legal person who is Mukalaf (Convicted). • Al Hakim: Al Hakim is the lawgiver that is Allah the lawgiver who

provides the original sources for Islamic law.

Hukm Shar`i


Theory ofRule(حكم)

Al Hakam MahkumAlaieh Al Hukm Mahkum

Fih/Bih


Hukm Shar‘i

• The literature meaning of hukm means prevention or restraint.• The root word is hakama in its original meaning conveys

meaning in different context as follows: decree, law, rule, juridical authority, jurisdiction,

government, legal value.• technical meaning in Islamic jurisprudence

“Communication from the lawgiver (Allah) concerning theconduct of the mukalaf which consists of a demand, andoption or a declaration”.

خطاب هللا تعالئ المتعلق بافعال المكلفین باالقتضاء او التخییر او الوضع

• The communication from anyone else other than him is notconsidered as hukm.

• The prophet (pbuh) is regarded as lawgiver by virtue of thedelegation of this authority to him by God.


Comments• From this technical definition we highlight the following notes:

• The communication in hukm is divine communication from thelawgiver.


Cont.

• The meaning of the communication is the absolute communicationfrom the lawgiver.

• Whether it is refers to him directly such as the Holy Quran of Allah• or through intermediation such as Sunnah• or indirectly such as consensus and other sources of shariah


Cont.

• The communication directly means the Quran(the word of God) and indirectly other sourcesof Islamic law recognized by shariah such assunnah, consensus, analogy.

• The communication has a wider concept whichinclude the option and the declaration, thereforeit is not confine to the command only.


Cont

• The word communication mean in Arabic (Khitab) which means toconveys a speech to a person in order to make him understand.

• The word conduct means in Arabic Afa'l which has a wider scopeinclude doing ('amal), saying (qawl) and belief (I'tiqad).


Form of the communication

Communication

DemandTalab/Iqtida

OptionTakyir Declaration

Wad”


Cont.

• The demand(talab or Iqtida) is a comminication in formof command (commission) or prohibition (omission)

• If the demand of commission is express in biding terms(absolute and decisive), the mukalaf has no choise tobut to confirm.

• The hukm is an obligation (ijab).• If the demand of commission is not express in biding

terms the hukm will be recommendation (nadb)• If the demand of omission of an act is express in biding

or absolute terms (absolute and decive), the mukalahhas no choice to but to avoid.

• The hukm ia a prohibition (tahrim)• If the demand of omission is not express in biding terms,

the hukm conveys disapproval (kaharah).• The word demand in the definition produces four terms

of hukm which are: obligation (Ijab), recommendation(Nadb), prohibition(tahrim) and disapproval (kaharah)


Demand

ObligationIjab

Demand

Demand

CommissionOmission

Binding Non-binding Binding Non-binding

Obligation Ijab Recommendation Nadb ProhibitionTahrim

DisapprovalKarahah


Cont.

• The communication may grant an option or choice to themukalaf.

• There is a concept of liberty in this rules and mukalaf hasthe right to do the act or avoid it at his discretion.

• This hukm is known as mubah or permissible.• This option is known in Arabic as takhyir which means

give an option.

• The commission and omission in takhyir is an equal actwithout giving to one over the other.


Cont.• It is just to provide the option to do or not to do.• Most of the rules in Islamic law fall under this

category.

• When the lawgiver mentioned in the text “eatand drink” )آولاو اوبرشا )

• The communication means to offer a choice tothe individuals to exercise to do that at their owndiscretion.


Cont.

• The communication may be expressedthrough a declaration or enactment, hukmwadi.

• The concept of hukm wadi is to declare therelationship of an act, or set of fact withinhukm.

• It is an objective exposition of the law whichenacts something as a cause (sabab) orcondition (shart) or an impediment (mani) foran application of the hukm.


Cont.

• For example the Hukm of Zakatwhich is a payment obligatoryreligion, the possession of aminimum amount of wealth (nisab) isthe cause for the application of thehukm.


Cont.

• Maintain and retained the nisab for one year (hawl) is acondition for the hukm.

• The existence of debt against the mukalaf is impediment orobstacle in the way of fixing the liability for zakat.

• Therefore the three elements of hukm wadi which are:cause (sabab), condition (shart) and impediment (mani)explain the existing relationship pertaining to this particularIslamic ruling.


Declaration

ObstacleMani

ConditionShart

CauseSabab


Classification of hukm shar‘i

• Hukm shar'I is divided into two main category.• Hukm taklifi (defining law), and hukm wadi (declaratory

law).• Hukm taklifi consist of demand (commission or

omission) or option.• This type of hukm occurs five category which are: wajib

(obligatory), mandub (recommended), haram(prohibited), makruh (disapproved), and mubah(permissible)


Cont

• Hukm wadi consists of an enactment.• this type occurs three major categories which are:

sabab (cause), shart (condition), mani (obstacle).• in addition there are four other categories under this

type which are: azimah (strict law) and ruksah(concessionary law), sahih (valid) and batil (null andvoid).


Hukm Shar'I

Hukm taklifi(Obligation)

Hukm wadi(Declaratory)

Obligation

Recommendation

Prohibition Permissible Cause shart mani

Disapproval

AzimahTrick law

Ruksahconcessionary

law

SahihValid

BatilVoid


1: The Hukm Taklifi- Obligation

• Communication from the lawgiver (Allah) concerning theconduct of the mukalaf which consists of a demand or anoption".

• This definition occurs fives category which are: wajib(obligatory), mandub (recommended), haram (prohibited),makruh (disapproved), and mubah (permissible).

• The hukm taklifi• The usuli is more concern about whether the hukm has

created an obligation or not.• When the usuli deals with the text he sees whether the

hukm to be derived from the texts is creating an obligationor recommendation or permissibility


2: The Hukm wadi- Declaratory

• Declaratory law is a communication from the lawgiver(Allah) which enacts something into a cause or acondition or an obstacle to do something else.

• The word (wad) mean to place, put down or lay down.

• In its definition it stand for the declaration of thing bythe lawgiver to be a cause or condition or animpediment.


Cont.

• For example:

1: The Hukm of Zakat which is a paymentobligatory religion, the possession of a minimumamount of wealth(nisab) is the cause for theapplication of the hukm, maintain and retained thenisab for one year (hawl) is a condition for the hukm

2: The prophet says: There is no nikah without twowitnesses. الاكنحإالاشبهنید therefore the presence oftwo witness is condition for a valid marriage.


Cont.

3: The prophet says: the killer shall not inherit. التاقلالریثtherefore the killing is an obstacle to inheritance.

4: The adultery is a cause for punishment.

5: Minority is an impediment to legal obligation.


The distinction between theHukm aklif and Hukm wadi

• Both Hukm taklifi and Hukm wadi are communication from thelawgiver.

• Hukm taklifi consists from five category which are: Obligatory,Waji , Recommended, Mandub, Disapproved, Makruh,Prohibited, Haram, Permissible, Mubah.

• Whereas the Hukm wadi consit from cause (sabab), condition(shart), obstacle (mani), azimah (strict law), ruksah(concessionary law),Sahih (valid), batil (null and void).


Cont.

• The purpose of the hukm taklifi is to create an obligation forthe commission or omission of an act or to grant a choice oroption.

• The hukm wadi does not serve this purpose.• It is only indicate the nature of the relationship that exist

within the hukm taklifi in form of cause, condition orobstacle.

• The execution of the act in the hukm taklifi is within thecapacity of the mukalah (the person) such performingprayer and zakat.

• But the hukm wadi may or may not be within the capacity ofthe mukalaf.


Cont.

• For example the sale is the cause of transfer ofproperty (this is under the ability of the person).

• The arrival of particular time of day which is thecause of prayer is beyond the means andcapacity of the mukalaf (the worshipper).

• The coming of the month Ramadan is the causeof fasting.

• Decline of the sun is the cause of noon prayer.


Cont.

• The blood relationship is the cause for theinheritance.

• All these are beyond the ability of theperson.

• It is possible that both hukm taklifi andhukm wadi can exist in one single text.

• It is not necessary that must be stated inseparate texts.


1: Classification of Hukm Taklifi - Obligation

• Hukm Taklifi - Obligation is a communication from the lawgiver (Allah)concerning the conduct of the mukalaf which consists of a demand oran option".

• This definition occurs fives category which are: wajib (obligatory),mandub (recommended), haram (prohibited), makruh(disapproved), and mubah (permissible).

• These five category formulate the main subject matter of obligation.


1: Wajib (obligatory act)

• Wajib has been defined with various definitions as

follows:

• 1. "That which the lawgiver absolutely demands to performs"

. •بلط ام ا اشلعراج ابلط ھلعف زام

• 2" . An act whose performer is rewarded for its performance and its

neglecter is punished for its omission".

. •اثی ام بھلعف ىلع و رت ىلع بقاعیآھ

•


Cont.

In regards to the above definition we can observe thefollowing notes:

•In wajib the lawgiver demands to perform the act incertain absolute and binding term.

• The absolute of the demand is understoodfrom the statement, and the way this demandis expressed


• The binding term in the demand isindicated by the words in thestatement, or by context and signs(qara'in).

Cont.

• such as the prayer, fasting, pilgrimage and similar acts.

• This concept of wajib conveys the first definition.

• the second definition is base on the consequences,

effect and characteristics of the act.


Cont.

•The second definition indicated that the person whoperforms wajib deserves reward, and the person whoneglects the act deserves a punishment.

•wajib is a must for the person to comply with the demandof the lawgiver and entitle the reward and the praise.•Omitting wajib without a legal excuse entitle the person topunishment and penalty.

•The shariah ruling for the person who denies the legalityof a wajib when it is based upon definitive (qat'i) evidenceis to be imputed with kufr infidelity.


Forms of expressions of wajib

• There are a few methods and different modesof expression which indicate the ruling of waji,most of the modes are base on the Arabiclanguage approach:

• 1: Imperative expression mode:• The imperative mode is called (Amr), this

expression indicate the demand by it self ifthere is no other qualification attached to it,which switch the indication of the mode fromobligation (wajib) to other sharaih rulesaccordingly.


Cont.

• Example:• A) "Establish worship, pay the poor-due

(Zakat)" (2:43).• "أوومیقااالصلةووتآاازلآاة")ارقبلة:43(. •

• The word (Aqimu) establish and (Atu) are inthe imperative mode which means there isan obligation and biding demand from thelawgiver to perform prayer and pay zakat,therefore the both are wajib.

• .


Cont.

• B) "Let him who has ample means spend inaccordance with his amplitude" (65:7)(7: "قفنیلوذةعسنمھتعس")االطلق •

• The word (liyunfiq) in the verses indicates theimperative mode because the verb presentparticiple is connected to the third person withthe letter (L).

• in this particular connection the verb give theimperative tense.

• Therefore spending on one's wife during thewaiting period is wajib.


Cont.

• C) "O you who believe, fasting is prescribed to you"(2:183)(183 : "ایأ اھیا ونمآ نیذلآ امكیلع بتا ایصلم) "ارقبلة

• The word kataba in Arabic language indicate theobligations, therefore the fasting in this verses is wajib.

• D) "Behold, Allah enjoins justice and the doing of good"(16:90).90: "ا نإدعلاب رمأی هللاو لاسحإلن) "الحنل

• The word (amr) in Arabic language means commandwhich indicates the obligation, therefore the doing ofgood and justice is wajib.


Classification

English ArabicHow has Allah, the Lawgiver defined theact: someone who performs it: someone who refrains from it:

The obligatory actfard

that which the Lawgiver strictly requires to bedone

he is rewarded, if it is performed out ofobedience to Allah

a person who refrains from it without excusedeserves to be punished

the recommended actmandûb

that which the Lawgiver asks to be done, butdoes not strictly require he is rewarded, if it is performed out of

obedience to Allahsomeone who refrains from it is not punished

the permissible actmubâh

that which the Lawgiver has neither requestednor prohibited

the person who does it is not rewarded nor is hepunished though if a person does it toenable him to perform an act of

the person who refrains from it is not rewarded orpunishedthough if a person does such an act toenable him to perform an

obedience to Allah, then he is rewardedfor it

act of disobedience - he is sinning

the disapproval actmakrûh

that which the Lawgiver has

interdicted but not strictly forbiddenthe person who commits it does not deserve tobe punished

the person who refrains from

such an act out of obedience to Allah isrewarded

the unlawful actharâm

that which the Lawgiver strictly forbids someone who commits an unlawful act deservespunishment

someone who refrains from it out of obedience tothe command of Allah is rewarded.


The Recommended - Mandub

• Literally, mandub means a person sent to do animportant work: a messenger: an ambassador,entrust someone with a significant job.

• techinical meaning of manbud is an act whoseperfomance is required unconditionally(by wayof recommendation) by the shari’aqh withoutlaying any blame for its omission.

• The demand for such acts is non-binding, theyare only recommended.


Cont.

• If it is performed the mukallaf is praised andrewarded.

• if it is omitted he will not be punished or blamed.He is also not a sinner.

• Mandub is also known as sunnah• Mandub are acts that are liked by God such as

wearing good clothes, ’aqiqah or even excellent actlike performing tahajjud prayer.

• Some of the recommended acts complement theobligatory duties such as reciting the name of Allahin the beginning of performing wudhu.


The Forbidden – Haram

•It is agreed by jumhur of the ulama that Haram is defined as the‘Lawgiver demands absolute abstinence regardless of the decisiveor probable evidence.•The omission of the act is required in absolute and binding terms.

Example :•‘Forbidden to you (for food) is dead meat ‘ (Al-Maidah 5:3)•Those who perform will be punished.•Those who deny its legal validity will be imputed by kufr and thosewho omit it will be rewarded.


The Disapproved – Makruh• Literally it means dislike, displeasure, disapproval.• Technically it is as follows:• Imam al-Haramayn :one is restrained but not blamed if one ventures

upon it”• Al-Baydawi : “One whose neglecter is praised and whose

performer is not blamed• Ibn al-Subki : “demand to omit an act in a non-absolute manner by a

specific prohibition or a prohibition is non specific”• makruh is the act which omission is preferred than commission.• makruh act is not liable to punishment and does not incur moral

blame.• Any mukallaf who avoid makruh entitles merits and gains closeness

to Allah.


The Permissible – Mubah

• Literally mubah means ‘permissible; allowable;tolerated’

• Technically, according to imam Ghazali, mubah is“Something permitted by Allah to be done or not tobe done without any specification on whether thedoer will be praised or condemned and those whoabstain are not praised or condemned”

• Based on the underlying principle the fuqaha agreethat “ everything is allowable in the absence ofevidence or ruling which proves its prohibition”

• The ruling of mubah on certain issues is notuniversal or general but it really depends on theintention and type of action as well as the time itoccur.


Cont.

• Example : Eating and drinking are considered asmubah.

• Everyone has the option of doing it or leaving it.

• if a person chooses not to eat or drink, it might causehim harm, therefore the original ruling of such action(mubah) might change to wajib as it is an oligation totake care of our life.

• if a person eats too much and such action mightcause him harm then the original ruling of the act ofeating might change to prohibition when it is doneexcessively.

Thank You&

Wassalam


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