The Legal Provisions (الا حكام الشرعیة)

Transcription

1 Shariah Aspect of Business And Finance (GIM6213) The Legal Provisions (الا حكام الشرعیة) Assoc. Prof. Dr. Mohd Fuad Mohd Salleh 22 February 2014

2 FACULTY OF BUSINESS (الا حكام الشرعیة) Legal provisions Definition The term Ahkam is the plural of hukm. It has been translated into English in different ways: Injunction, command, prescription and shariah value. The theory of hukm shariah is based on the four major elements which are: Hukm (حكم) : is the Legal judgment of the Islamic law. Mahkum fih ( فیه (محكم 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.

3 Hukm Shar`i Theory of Rule (حكم) Al Hakam Mahkum Alaieh Al Hukm Mahkum Fih/Bih

4 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 the conduct of the mukalaf which consists of a demand, and option or a declaration. خطاب الله تعالي المتعلق بافعال المكلفین بالاقتضاء او التخییر او الوضع

5 Comments From this technical definition we highlight the following notes: The communication in hukm is divine communication from the lawgiver. The communication from anyone else other than him is not considered as hukm. The prophet (pbuh) is regarded as lawgiver by virtue of the delegation of this authority to him by God.

6 Cont. The meaning of the communication is the absolute communication from 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

7 Cont. The communication directly means the Quran (the word of God) and indirectly other sources of Islamic law recognized by shariah such as sunnah, consensus, analogy. The communication has a wider concept which include the option and the declaration, therefore it is not confine to the command only.

8 Cont The word communication mean in Arabic (Khitab) which means to conveys a speech to a person in order to make him understand. The word conduct means in Arabic Afa'l which has a wider scope include doing ('amal), saying (qawl) and belief (I'tiqad).

9 Form of the communication Communication Demand Talab/Iqtida Option Takyir Declaration Wad

10 Cont. The demand(talab or Iqtida) is a comminication in form of command (commission) or prohibition (omission) If the demand of commission is express in biding terms (absolute and decisive), the mukalaf has no choise to but 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 mukalah has 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)

11 Demand FACULTY OF BUSINESS Demand Demand Commission Omission Binding Non-binding Binding Non-binding Obligation Ijab Recommendation Nadb Prohibition Ijab Tahrim Disapproval Karahah

12 Cont. The communication may grant an option or choice to the mukalaf. There is a concept of liberty in this rules and mukalaf has the 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 act without giving to one over the other.

13 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 eat and drink (اوبرشاو اولآ ( The communication means to offer a choice to the individuals to exercise to do that at their own discretion.

14 Cont. The communication may be expressed through a declaration or enactment, hukm wadi. The concept of hukm wadi is to declare the relationship of an act, or set of fact within hukm. It is an objective exposition of the law which enacts something as a cause (sabab) or condition (shart) or an impediment (mani) for an application of the hukm.

15 Cont. For example the Hukm of Zakat which is a payment obligatory religion, the possession of a minimum amount of wealth (nisab) is the cause for the application of the hukm.

16 Cont. Maintain and retained the nisab for one year (hawl) is a condition for the hukm. The existence of debt against the mukalaf is impediment or obstacle 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 particular Islamic ruling.

17 Declaration Cause Sabab Condition Shart Obstacle Mani

18 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)

19 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 and void).

20 Hukm Shar'I Hukm taklifi (Obligation) Hukm wadi (Declaratory) Obligation Prohibition Permissible Cause shart mani Recommendati on Disapproval Azimah Trick law Ruksah concessionary law Sahih Valid Batil Void

21 1: The Hukm Taklifi- Obligation Communication from the lawgiver (Allah) concerning the conduct of the mukalaf which consists of a demand or an option". 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 obligation or recommendation or permissibility

22 2: The Hukm wadi- Declaratory Declaratory law is a communication from the lawgiver (Allah) which enacts something into a cause or a condition 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 by the lawgiver to be a cause or condition or an impediment.

23 Cont. For example: 1: The Hukm of Zakat which is a payment obligatory religion, the possession of a minimum amount of wealth(nisab) is the cause for the application of the hukm, maintain and retained the nisab for one year (hawl) is a condition for the hukm 2: The prophet says: There is no nikah without two witnesses. لاإ حاكن لا thereforeنیدهاشب the presence of two witness is condition for a valid marriage.

24 Cont. لتاقلا inherit. 3: The prophet says: the killer shall not therefore the killing is an obstacle to inheritance. لا ثری 4: The adultery is a cause for punishment. 5: Minority is an impediment to legal obligation.

25 The distinction between the Hukm aklif and Hukm wadi Both Hukm taklifi and Hukm wadi are communication from the lawgiver. 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).

26 Cont. The purpose of the hukm taklifi is to create an obligation for the commission or omission of an act or to grant a choice or option. 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 or obstacle. The execution of the act in the hukm taklifi is within the capacity of the mukalah (the person) such performing prayer and zakat. But the hukm wadi may or may not be within the capacity of the mukalaf.

27 Cont. For example the sale is the cause of transfer of property (this is under the ability of the person). The arrival of particular time of day which is the cause of prayer is beyond the means and capacity of the mukalaf (the worshipper). The coming of the month Ramadan is the cause of fasting. Decline of the sun is the cause of noon prayer.

28 Cont. The blood relationship is the cause for the inheritance. All these are beyond the ability of the person. It is possible that both hukm taklifi and hukm wadi can exist in one single text. It is not necessary that must be stated in separate texts.

29 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 or an 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.

30 1: Wajib (obligatory act) Wajib has been defined with various definitions as follows: 1. "That which the lawgiver absolutely demands to performs" امزاج ابلط ھلعف عراشلا بلط ام. ". 2An act whose performer is rewarded for its performance and its neglecter is punished for its omission". ھآرت ىلع بقاعیو ھلعف ىلع باثی ام.

31 Cont. In regards to the above definition we can observe the following notes: In wajib the lawgiver demands to perform the act in certain absolute and binding term. The absolute of the demand is understood from the statement, and the way this demand is expressed

32 Cont. The binding term in the demand is indicated by the words in the statement, or by context and signs (qara'in). 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.

33 Cont. The second definition indicated that the person who performs wajib deserves reward, and the person who neglects the act deserves a punishment. wajib is a must for the person to comply with the demand of the lawgiver and entitle the reward and the praise. Omitting wajib without a legal excuse entitle the person to punishment and penalty. The shariah ruling for the person who denies the legality of a wajib when it is based upon definitive (qat'i) evidence is to be imputed with kufr infidelity.

34 Forms of expressions of wajib There are a few methods and different modes of expression which indicate the ruling of waji, most of the modes are base on the Arabic language approach: 1: Imperative expression mode: The imperative mode is called (Amr), this expression indicate the demand by it self if there is no other qualification attached to it, which switch the indication of the mode from obligation (wajib) to other sharaih rules accordingly.

35 ةاآ" ة: FACULTY OF BUSINESS Cont. Example: A) "Establish worship, pay the poor-due (Zakat)" (2:43).. (43 رقبلا) زلا اوتآو ةلاصلا اومیقأو " The word (Aqimu) establish and (Atu) are in the imperative mode which means there is an obligation and biding demand from the lawgiver to perform prayer and pay zakat, therefore the both are wajib..

36 Cont. B) "Let him who has ample means spend in accordance with his amplitude" (65:7) قلاطلا) "ھتعس نم ةعس وذ قفنیل ":7) The word (liyunfiq) in the verses indicates the imperative mode because the verb present participle is connected to the third person with the letter (L). in this particular connection the verb give the imperative tense. Therefore spending on one's wife during the waiting period is wajib.

37 Cont. C) "O you who believe, fasting is prescribed to you" (2:183) ةرقبلا) "مایصلا مكیلع بتآ اونمآ نیذلا اھیأ ای": 183) The word kataba in Arabic language indicate the obligations, therefore the fasting in this verses is wajib. D) "Behold, Allah enjoins justice and the doing of good" لحنلا) "ناسحلا او لدعلاب رما ی اللها نا ": 16:90).90 ) The word (amr) in Arabic language means command which indicates the obligation, therefore the doing of good and justice is wajib.

38 English Arabic Classification FACULTY OF BUSINESS How has Allah, the Lawgiver defined the act: someone who performs it: someone who refrains from it: The obligatory act fard that which the Lawgiver strictly requires to be done he is rewarded, if it is performed out of obedience to Allah a person who refrains from it without excuse deserves to be punished the recommended act mandûb that which the Lawgiver asks to be done, but does not strictly require he is rewarded, if it is performed out of obedience to Allah someone who refrains from it is not punished the permissible act mubâh that which the Lawgiver has neither requested nor prohibited the person who does it is not rewarded nor is he punished though if a person does it to enable him to perform an act of the person who refrains from it is not rewarded punished though if a person does such an act to enable him to perform an obedience to Allah, then he is rewarded for it act of disobedience - he is sinning the disapproval act makrûh that which the Lawgiver has interdicted but not strictly forbidden the person who commits it does not deserve to be punished the person who refrains from such an act out of obedience to Allah is rewarded the unlawful act harâm that which the Lawgiver strictly forbids someone who commits an unlawful act deserves punishment someone who refrains from it out of obedience the command of Allah is rewarded.

39 The Recommended - Mandub Literally, mandub means a person sent to do an important work: a messenger: an ambassador, entrust someone with a significant job. techinical meaning of manbud is an act whose perfomance is required unconditionally(by way of recommendation) by the shari aqh without laying any blame for its omission. The demand for such acts is non-binding, they are only recommended.

40 Cont. If it is performed the mukallaf is praised and rewarded. 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 act like performing tahajjud prayer. Some of the recommended acts complement the obligatory duties such as reciting the name of Allah in the beginning of performing wudhu.

41 The Forbidden Haram It is agreed by jumhur of the ulama that Haram is defined as the Lawgiver demands absolute abstinence regardless of the decisive or 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 those who omit it will be rewarded.

42 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.

43 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 to be done without any specification on whether the doer will be praised or condemned and those who abstain are not praised or condemned Based on the underlying principle the fuqaha agree that everything is allowable in the absence of evidence or ruling which proves its prohibition The ruling of mubah on certain issues is not universal or general but it really depends on the intention and type of action as well as the time it occur.

44 Cont. Example : Eating and drinking are considered as mubah. Everyone has the option of doing it or leaving it. if a person chooses not to eat or drink, it might cause him harm, therefore the original ruling of such action (mubah) might change to wajib as it is an oligation to take care of our life. if a person eats too much and such action might cause him harm then the original ruling of the act of eating might change to prohibition when it is done excessively.

45 Thank You & Wassalam