SHARIAH I

Collective (kafai)- addressed to

Hukm Sharai

community as a whole; jihad,

Shariah Value
Speech or communication from the Lawgiver

funeral prayers and hisbah

addressed to the mukallaf which consists of demand,

contingent on time limit vs.

Absolute (mutlaq)- free of time

option or enactment.
Demand
-

Command or prohibition
2 types:
o
Talab- do something
o
Iqtida- avoid something

Defining Law (al-hukm al-taklifi)

Declaratory Law (al-hukm al-wadi)

limit
Quantified (muhaddad) vs,
Unquantified (ghayr muhaddad)failure to discharge does not result

into personal liability.

Wajib vs. Mandub
o
Wajib invokes punishment while mandub

does not.
Haram vs. Makruh
o
Haram is punishable while makruh is not.

2 main varieties of Hukm Sharai

1.
2.

Contingent (muwaqqat)-

DEFINING LAW
-

Speech or communication by the Lawgiver addressed

to the mukallaf which consists of a demand or an

option.
5 varieties:
o
Wajib/Fard (Obligatory)
o
Mandub (Recommended)
o
Haram (Forbidden)
o
Makruh (Abominable)
o
Mubah (Permissible)

RECOMMENDED (MANDUB)
-

Demand of the Lawgiver asking the mukallaf to do

something which is not binding on the latter.

To comply means spiritual reward but no punishment

is inflicted for failure to perform.

Creating a charitable endowment, fasting on days
outside Ramadan.

FORBIDDEN (HARAM)
-

DECLARATORY LAW
-

abandoning something which may be founded in

Declares the legal relationship between the cause

and its effect or between the condition and its object.
4 varieties:
o
Sabab (Cause)
o
Shart (Condition)
o
Mani (Hindrance)
o
Azimah vs. Rukhsah (Strict Law vs.
o

Binding demand of the Lawgiver in respect of

definitive or speculative proof.

Punishable and omitting is rewarded.
2 types:
o
Forbidden on its own sake

Not permissible except in cases of

dire necessity of a kind which

Concessionary Law)
Valid, Irregular and Void

threatens the safety of the five

values of life, religion, intellect,
lineage and property.

OBLIGATORY (WAJIB)
-

Wajib- acting upon it leads to reward and omitting it

leads to punishment.
o
Fard

act is obligatory in the first degree,

command is clear and definitive.

Performing of salat and hajj
If neglected in an act required in

made unlawful owing to the

presence of some circumstances.
ABOMINABLE (MAKRUH)
-

Wajib
o
o
o

act is obligatory in the second degree,

command is speculative.
Reciting of sura al Fatihah in salah.
3 varieties:

Personal (ayni) addressed to

Demand of the Lawgiver which requires the mukallaf

to avoid something, but not in strictly prohibitory

Shariah, the act as a whole is null

and void.

Forbidden because of something else

Originally lawful but has been

terms.
Perpetrator is not liable to punishment.
Example: Divorce
Lowest degree if prohibition.
2 types:
o
Tanzihi- considered abominable for purposes
of keeping pure; commission not punished
o

but omission is praiseworthy.

Tahrimi- abominable to the degree of
prohibition.

every individual; salah, hajj, zakah

PERMISSIBLE (MUBAH)

Communication from the Lawgiver concerning the

Permitted a prohibited act on grounds of

necessity
Occur in the form of omitting a wajib when

conformity to wajib causes hardship.

Rukhsah occurs in the form of validating

contracts would normally be disallowed.

Occurs in the form of concessions to the

conduct of the mukallaf which gives him the option

-

whether to do or not to do something.

3 types:
o
Does not entail harm to the individual
o
Commission does not harm the individual
o

although it is essentially forbidden

Practiced at one time but were then

Muslim ummah from certain rigorous laws

prohibited with the proviso that those who

which were imposed under previouse

indulged in it before the prohibition are

revelations.

exenorated.

VALID, IRREGULAR and VOID (Sahih, Fasid, Batil)

CAUSE (SABAB)
-

An attribute which is evident and constant an its

presence necessitates the hukm, and its absence

Shariah values which describe and evaluate legal

acts incurred by the mukallaf.

To evaluate an act, it should have the essential

means that hukm is also absent.

Act within the power of the mukallaf.

requirements and conditions that the Shariah has laid

-

down.
VALID- when it fulfils the essential requirements

andconditions.
IRREGULAR- deficiency only affects the condition.
VOID- when it fulfils all the essential requirements

CONDITION (SHART)
-

an attribute evident and constant whose absence

necessitates the absence of the hukm but its

and conditions.

presence does not automatically bring about its

-

object.
Example: presence of valid marriage is a
precondition of divorce, but it does not mean that

when there is valid marriage, there is divorce..

2 types:
o
Legal condition- laid down by the Lawgiver
o
Improvised condition- stipulated by the

PILLARS OF HUKM SHARAI

1.
2.
3.

Lawgiver (Hakim)
Subject Matter (Mahkum fih)
Audience (Mahkum alayh)/ Legal Capacity
(Ahliyyah)

mukallaf
LAWGIVER (HAKIM)
HINDRANCE (MANI)
-

An act or attribute whose presence either nullifies

and command is known to the mukallaf directly

the hukm or the cause of the hukm

through divine revelation, or indirectly by means of

-

The source of law in Islam is God Almighty whose will

inference, deduction and itjihad.

3 different views:
o
It is not possible for the human intellect to

2 types:
o
Mani- affects the cause in the sense that its

determine the good and evil in the conduct

of the mukallaf, or to identify the hukm of

presence nullifies the cause. (indebtedness

o

the Lawgiver concerning the conduct of the

of a person who is liable to pay zakah)

Hindrance which affects the hukm- presence

mukallaf without the aid of divine guidance.

nullifies the hukm, even if the cause of

condition are present (father who killed his

regarding the conduct of the mukallaf

son does not qualify for retaliation)

without the mediation of the scriptures and

STRICT LAW (AZIMAH)

-

Law as the Lawgiver had intended in the first place.

Command of the Lawgiver which binds the mukallaf
Example: salah, zakah, hajj, jihad.

CONCESSIONARY LAW (RUKHSAH)

-

Conjunction in attenuating circumstances

Embodies exceptions
Concession in respect of the binding command of the

mukallaf.
4 varieties:

(Asharites)
Human intellect can identify the law of God

messengers. (Mutazilah)
Right and wrong in the conduct of the
mukallaf can be ascertained and evaluated
by human intellect. (Maturidis)

SUBJECT MATTER (MAKHUM FIH)

-

Refers to acts, rights and obligation of the mukallaf

which constitute the subject-matter of a command,

prohibition or permissibility
3 Qualifications:

Individual must know the nature of the

conduct so that he can perform what is
required of him and refrain from that which

is forbidden.
The act which the individual is required to
do must be within his capability, or in the
case of prohibition, that is within his

capability to avoid the prohibited conduct.

To demand to act or not to act must

RIGHTS OF MEN
-

Right to enforce a contract

Right to compensation for loss
Right to own purchased

RIGHTS OF THE COMMUNITY

-

Public over private rights

Right to punish slanderer
Acts aim at protecting human life, intellect and
property.

originate in an authoritative source which

-

can command obedience to the mukallaf.

Acts of mukallaf may be:
o
Rights of God (Exclusive)
o
Rights of Man
o
Rights of Community
o
Private and Public Rights Combined

Public rights
Beneficial to the community at large and not merely

Private over public rights

Retaliation (qisas) and blood money

LEGAL CAPACITY
-

RIGHTS OF GOD
-

PRIVATE and PUBLIC RIGHTS COMBINED

Legal capacity of the audience

Divided into 2 types:
o
Receptive Legal Capacity

Capacity to receive or inhere rights

to a particular individual.

RIGHTS OF MAN
-

Private right
Enforcement is a duty of the state.

RIGHTS OF GOD (EXCLUSIVE)

-

Acts of devotion or worship

8 varieties:
o
Exclusive Worship(5 pillars: Shahadah,
o
o

Salah, Zakah, Ramadan, Hajj)

Worship and Financial Liability (charity)
Financial Liability greater than worship (1/10

of harvest)
Consists of financial liability but has a

propensity towards judgment (kharaj tax)

Punishment only (punishment for theft,

adultery)
Minor Punishment (excluding from

inheritance)
Punishment which leans toward worship

(penances)
Exclusive Rights (community right in
mineral wealth)

or obligations
Vested in every human being,

competent or otherwise.
Active Legal Capacity

Capacity for the active exercise of

rights and obligations.

Acquired only upon attaining
certain level of intellectual maturity

and competence.
3 possible situations:

Person may be totally

lacking of active legal
capacity such as child
during infancy or insane

person of age.
Partially lacking in active
legal capacity (child

between 7-15 years)

Active legal capacity is
complete upon attainment
of intellectual maturity.