INTRODUCTION TO

HUKM SHARI - THE VALUE OF SHARIAH

 MABAHITH
SOURCES CONCEPTS &
IJTIHAD AL-HUKM
OF SHARIAH ORIGIN
AL-SHARI

Historical Sketch Primary Sources Al-Hakim Definition and

[Textual] Scope

Reform AL-HUKM
Origin &
Secondary Development
Sources
Mahkum Fihi
[Non-Textual]
Shafii & al-
Risalah
Mahkum Alayhi

The Schools of
Usul al-Fiqh
 MABAHITH AL HUKM AL-SHARI

The Lawgiver: The true source

from which the law originated

The rule itself

The act on which

the hukm operates
The subject (legal person) for
whom conduct the hukm
is stipulated.

INTRODUCTION TO
HUKM SHARI
THE DEFINITION / MEANING

IMPORTANT POINTS FROM THE DEFINITION

TYPES OF HUKM AL-SHARI:

a. HUKM TAKLIFI
[The Obligation-creating Hukm]

b. HUKM WADI
[The Declaratory Hukm]
THE MEANING
Derived from the root word of [ ]which literally means
command and technically means rule.

The word hukm is the singular of ahkam. Hukm originally

means judgment, judicial decision, or to declare a thing to
be true or wrong. Thus, it conveys numerous meanings in
different contexts, such as judicial authority, jurisdiction,
rule, government, ordinance, statute, judicial norm, legal
value and etc.
THE MEANING
Hukm Sharii - Technical Definition

A communication from Allah, relating to the acts of those

persons who are subject of law, by way of demanding them
to do or not to do ( iqtida) or giving them a choice for its
performance (option or takyir) or declaring a thing to be the
cause or condition or impediment or azimah and rukhsah,
or valid, invalid or void (declaration or Wadie)
IMPORTANT POINTS FROM THE DEFINITION
A communication from Allah
The hukm is a communication from Allah, not a mere command. A
communication from somebody else cannot be treated as a hukm.
The communication is related to the acts of the subjects or
Mukallaf.
The communication gives rise to the rules to the act of human beings.
(commission or omission)

Talab means demand, whether it is the demand for performing or

omitting an act, and whether it is absolute and decisive (jazim), or
not absolute (ghayr jazim). If the demand (talab) in the hukm is
for performing an act is absolute and decisive, it is obligation (ijab
or fard), if it is not absolute it refers to recommendation (nadb), If
the demand in the hukm is for omitting an act is absolute, it refers
to prohibition (tahrim), if it is not absolute, it refers to disapproval
(karahan).
IMPORTANT POINTS FROM THE DEFINITION
The word takyir literally means to give an option. In this
definition, it means to declare the performance or omission of an
act equal without giving preference to one over another, and to
provide the mukallaf an option (khiyar) or permission (ibahah) to
do or not to do a particular act.

The word wadie means to place, put down or lay down. In the
defination, it stands for the declaration of a thing by the lawgiver
to be a cause (sabab) or a condition (shart) or impediment
(mani), azimah &rukhsah, and valid, invalid and void.

Example : Adultery is the cause of the punishment, purification is

the condition for prayer, insanity is the impediment to legal
obligation such as prayer, fasting and etc.

The above explanation about the definition of hukm sharI

indicates that it comprises both kinds of hukm: Taklifi (defining),
and wadie (declaratory)
IMPORTANT POINTS FROM THE DEFINITION
Thus, the hukm may be expressed through a demand
The demand may be for the commission of an act or its omission and it
may either expressed in binding/absolute terms or voluntary/non-binding
modes:
A binding demand for commission of an act: Ijab (Obligation)

Example:

()
O you who believe! Fulfill (your) obligations.
[al-Maidah: 1]
IMPORTANT POINTS CONTD
A non-binding demand for commission of an act: Nadb
(Recommendation)

Example:
()
It is a communication from the Messenger of Allah which demands a
commission of offering 2 rakaat before Maghrib.
A binding demand for omission of an act : Tahrim (Prohibition)

Example:
()
And come not near to the unlawful sexual intercourse. Verily, it is a Fahishah [i.e.
anything that transgresses its limits (a great sin)], and an evil way. [al-Isra: 32]

It is a communication from Allah which demands an omission of getting

near to the unlawful sexual intercourse.
The demand has been made in a binding mode.
 IMPORTANT POINTS CONTD
A non-binding demand for omission of an act: Karahah (disapproval):
Rasulullah s.a.w said:

()
It is a communication from the Messenger of Allah which demands an
omission of eating while resting on something.

Rasulullah again said in Hadith:

Allah forbids children disrespecting your mothers (parent), and forbids from burying
your daughters alive, and forbids taking and giving something that you are not
eligible to, and Allah also discourages (makruh) you from three things; talking
nonsense, asking so many questions and wasting your property.

*
IMPORTANT POINTS CONTD
The hukm may grant an option or a choice to the
subject

A choice may be given for the commission or omission of an

act. (Ibahah)

()
Then when the (Jumu'ah) Salat (prayer) is finished, disperse through the
land, and seek the Bounty of Allah (by working, etc.) [al-Jumuah: 10]

A communication from Allah which offers a choice to the

subject that he may perform the act of seeking the means
of living at his discretion after Jumaah prayer.
IMPORTANT POINTS CONTD
The hukm may be expressed through a declaration (Hukm al-
Wadie)

The communication declares the relationship of an act with the hukm;

whether the act (or a set of facts) is the cause (sabab), condition (shart),
or an impediment (mani) for the application of the hukm.

Example:
Possession of a minimum amount of wealth (nisab): the cause (sabab) for
the obligation of paying zakah.

Having retained the wealth for a hijri year (hawl): a condition (shart) for
the hukm obligation.

The existence of debts against the subject: an impediment/obstacle in the

way of fulfilling the obligation of zakah.
TYPES OF HUKM AL-SHARI
A communication from Allah, related to the acts of
the subjects through a demand or option or through
a declaration
Two main categories for the hukm:

a. Hukm Taklifi
[The obligation-creating hukm]

b. Hukm Wadi
[The declaratory hukm]
HUKM TAKLIFI - THE OBLIGATION-CREATING HUKM
The obligation-creating rule can be viewed in Islamic Law from two
different perspectives:

a. The perspective of a specialist in fiqh (faqih)

b. The perspective of a specialist in usul al-fiqh (usuli)

From the perspective of Usuli, the hukm taklifi is:

The demand of the Lawgiver requiring the subject to perform or omit an
act or to have a choice between commission or omission

From the perspective of Faqih, the hukm taklifi is:

The legal attribute of the acts of the subject after the demand of the
Lawgiver requiring its commission or omission or to His granting a choice
between commission and omission
 Definition of Hukm al- Wadie
HUKM WADI - THE DECLARATORY HUKM
A communication from Allah, related to the acts of the
subjects through a demand or option or through a
declaration

The definition provided that the communication from Allah

may be related to the acts of the subjects in a manner that
is declaratory:

a.Sabab (Cause or Reason)

b. Shart (Condition)
c. Mani (Impediment or obstacle)
d.Azimah and Rukhsah
e.sahih, Batil and fasid
HUKM WADI - THE DECLARATORY HUKM (contd)
Sabab (Cause)
An act of which a Hukm taklifi is invoked whose presence obligates
Hukm taklifi and its absence necessitates no obligation.
Example:
[al-Baqarah: 185] )

every one of you who is present (at his home) during that month
should spend it in fasting.
There are two types of sabab:
a. Within the control of the mukallaf such as the birth or
committing theft,
b. Beyond his power such as sighting the moon obligates fasting.
Shart (condition):
The pre-requisite whose absence necessitates the absence of the
Hukm taklifi but its presence does not obligate the hukm, such as
wudu (ablution) for the prayers.
HUKM WADI - THE DECLARATORY HUKM (contd)
Mani' (obstacle):
A condition or set of facts that prevent the Hukm from being applied
even if the cause is found and the condition is met.
E.g.: Difference of religion is the Mani for inheritance and debt
negates the obligation of zakat.
 Sahihah (validity), fasid (vititation) and butlan (nullity)
An act that is obligatory, recommended or permissible may be
required to be performed in a certain manner by the lawgiver. If the
act is performed properly it is deemed as valid (sahih) otherwise it
is null and void (batil).

Fasid.defect on its conditions

Batil..defect on its pillars

Hanafi
Ibadat same result
Muamalatdifferent result
 'Azimah and Rukhsah (Initial rules and exemptions/concession)

The lawgiver may indicate that one hukm is to be considered as

obligation imposed initially as a general rule (azimah).

] 43[

This may be followed by another rule that is an exemption

(rukhsah) from the general rule such as consuming pork is
prohibited, but under duress one is permitted to consume it.

] 101[
THE DIFFERENCES
Hukm Taklifi Hukm Wadi

The aim: The aim:

To create an obligation or grant To inform either that a certain
choices thing is a cause of, condition for
or obstacle to a hukm
The act that is affected is within
the ability of the subject The act that is affected may or
(commission or omission) may not be possible for the
subject to commit or omit it.
Eg: Zina is possible to be avoided
Eg: The setting of sun as the
cause for offering prayer
 SUMMARY
Al-Hukm al-Shari is a name given to the shariah norms,
values and principles which are designed to govern the
Muslims behaviour as willed by Allah Almighty.

al-Hukm al-Shari subsumes or includes two sets of divinely

inspired rules:

a. Obligation creating rules (al-hukm al-taklifi)

A set of standard value to which a Muslim ought to adhere.

b. Declaratory rules (al-hukm al-wadi)

Matters which are designed to facilitate the performance of
the first type of hukm in real situations of human life.
NOTE
It is not be assumed that the hukm taklifi and the hukm wadi are
always stated in separate texts.

()
Cut off (from the wrist joint) the (right) hand of the thief, male or
female, as a recompense for that which they committed, a
punishment by way of example from Allah
[al-Maidah: 38]

The hukm is the obligation (hukm taklifi) to cut off the hand, the
cause (hukm wadi) for it is theft. Both occur in the same text.