Topic 3

Al-Hukm & its categories

 Content
1. Definition of al-hukm and its two categories:
• al-hukm al-taklifi
• al-hukm al-wad’ie
• Example of contracts in Islamic finance and banking
2. Definitions of al-hukm, al-hakim, al-mahkum fih dan al-mahkum ‘alaihi
• Types of al-wajib:
• Types of al-wajib whether it didn’t has a specific time to perform al-wajib
al-muwassa’, or not (al-wajib al-mudayyiq), or al-wajib zu al-syabahain)
• Types of al-wajib whether it has limitation (al-wajib al-muhaddad) or not
(ghair al-muhaddad).
• Al-wajib al-‘ani dan al-wajib al-kifai
• Explanations about al-wajib, al-mandub, al-haram, al-makruh dan al-
mubah.
• Example of contracts in Islamic finance and banking
 Al-Hukm and its categories
• The end of fiqh and its root (i.e. usul fiqh) is to
know the rule of syari’ah (al-hukm al-syar’i).
• Usul fiqh was seen as enactor of maxims and
principle to deduct the syari’ah ruling.
• Fiqh was seen as deductive process itself by
using what was enacted by Usul fiqh.
 Definition
• Al-Hukm (rule) from Usuliyyun (Usul fiqh scholars) point of
view: The message of Allah which is related to the action of
mukallaf in the form of necessity, option and legislative
(wad’/‫)وضع‬.
• “The message of Allah”( ‫ ) خطابهللا‬is His direct saying i.e.
Holy Quran, or by indirect saying i.e. all messages which
were referred back to Him such as sunnah, ijma’ and other
syari’ah proofs to justify the rules.
i. So sunnah, is something emanates from the Prophet (SAW)
for lawmaking. It was referred back to Allah SWT because of
the originality was from Allah revelation to the Prophet.
3 :‫وما ينطق عن الهوى إن هو إال وحي يوحى (النجم‬
 Contd
ii. Al-Ijma’ should be based on the proofs of Holy Quran and
sunnah.
iii. Other evidences were discloser and revealer to the saying
of Allah SWT.
• “necessity”/ (‫ )ا القتضاء‬is the order or the request ‫طلب‬ ( ‫)ا ل‬,
either it is the request to do or to quit; either it is the
request in the form of compulsory or preferring.
• “ Option”/(‫ )ت خيير‬: Equalization between doing an action
and quitting it without any preference to both of them, and
both action are permissible to mukallaf.
 Contd
• “al-wad’i”/(‫ )ا لوضع‬: Legislative of something to
be as a cause to another thing, or as a condition
towards it; or as a hindrance to it.
 Examples:
• )1 :‫يا أيها الذين آمنوا أوفوا بالعقود (المائدة‬
• It was syariah rule (hukm syar’i) because it was the
saying of Lawgiver which related to the action of
mukallaf. The hukm syar’i from the text was the carrying
out of the contract obligation as a demand to implement.
• )275 :‫وأحل هللا البيع وحرم الربى (البقرة‬
• The scripture was the syariah rule because it was the
saying of Lawgiver which demanded the quitting from
practicing the action i.e. taking interest.
 Contd
• ‫الزانية والزاني فاجلدوا كل واحد منهما مائة جلدة‬
• It was the hukm syar’i because it was the saying of
Lawgiver which legislated adultery as a cause for the
necessity of whipping hundred times to both of male and
female adulterers.
• ،‫ وعن الصبي حتى يحتلم‬،‫ النائم حتى يستيقظ‬:‫رفع القلم عن ثالث‬
‫وعن المجنون حتى يفيق‬
• The text was hukm syar’i because it was the saying of the
Lawgiver which legislated sleeping, youngness/juvenility
and craziness as a hindrance from any obligation.
Conclusions from the definition given by Usuliyyun

• The divine texts which were not related to the actions of

mukallaf, could not be considered as hukm (i.e. rule) from
Usuliyyun point of view such as His Saying on Himself and
His characteristics; and His saying which related to human
action but not in the form of necessity, option and
legislative (wad’/‫)وضع‬.
• The hukm (rule) in Usuliyyun view was the saying of
Lawgiver itself or the text itself, but according to jurists
(fuqaha’) the hukm was the result of the Lawgiver saying,
i.e. what was consisted in the text itself.
 Example:
• )275 :‫وأحل هللا البيع وحرم الربى (البقرة‬
• Usuliyyun: That Lawgiver saying was al-hukm.
• Jurists: The text was the Lawgiver saying. The result
of the saying (Athar al-khitab) was the hukm (i.e.
what was mentioned by the text). The hurmah al-
riba was the result from that saying.
 Categories of Hukm Syar’i
• Al-hukm al-taklifi ‫ي‬
( ‫ )ا لحكم ا لتكليف‬is something
which consists of demand of doing, or demand
of quitting, or an option between doing and
quitting.

• Al-Hukm al-wad’i ‫ي‬( ‫ )ا لحكم ا لوضع‬is something

which consists of identifying something other as
a cause for an effect, or as a condition toward
something else, or hindrance to it.
Distinguish elements between hukm
taklifi & hukm wad’i
1st. distinguish element:
• Hukm taklifi is a demand either to do or not to
do, or permissibility between doing and not.
• Hukm wad’i does not consists of that types of
demand but consists of what were declared by
Lawgiver as a cause, condition or hindrance to
the rule (hukm).
 Contd
2nd. Distinguish element:
• Requested action in hukm taklifi is something
could be implement by mukallaf.
• On the other hand, hukm wad’i consists of both,
either something which could be implement by
human, or something which could not be
implement.
 Types of Hukm Taklifi
Understanding the terminologies:
i. The demand
ii. The result from the demand
iii. the demanded action under this result
Example:
The demand: The saying of Lawgiver to avoid riba.
The result of the demand: Prohibition of taking riba.
The rule for particular action: Taking riba.
 Types….
1st. Al-Ijab ‫يجاب‬
( ‫)ا إل‬// al-wujub ‫وجوب‬
( ‫)ا ل‬// al-wajib
( ‫)ا ل‬
‫واجب‬
2nd. Al-nadb ‫ندب‬
( ‫)ا ل‬// al-nadb ‫ندب‬
( ‫)ا ل‬// al-mandub
( ‫)ا ل‬
‫مندوب‬
3rd. Al-tahrim (‫)ا لتحريم‬// al-hurmah (‫ )ا لحرمة‬// al-
haram/al-muharram (‫ا لمحرم‬/‫)ا لحرام‬
4th. Al-Karahah (‫)ا لكراهة‬// al-Karahah (‫ )ا لكراهة‬// al-
makruh ( ‫)ا لمكروه‬
5th. Al-Ibahah (‫)ا إلباحة‬// al-ibahah (‫ )ا إلباحة‬// al-mubah
(‫)ا لمباح‬
 Contd
• Al-Ijab is a demand of Lawgiver to do as a compulsory
and obligatory. The consequence of this demand is
binding (al-wujub). The action under this request is
obligatory (wajib).
• Al-nadb is a demand of Lawgiver to do something as a
preference and recommendation. The consequence of
this request is recommendable (al-nadb). The action
under this request is recommended (al-mandub).
• Al-Tahrim is a demand of Lawgiver to forbid
something as a binding and obligatory. The
consequence of the demand to forbid certain human
action is forbiddingness. The action under this demand
is forbidden.
 Contd
• Al-Karahah is a request of Lawgiver to forbid
something as a hateful and not a compulsory
prohibition . The consequence of this request is
hatefulness/ abominableness (al-karahah). The
action under this request is hateful/ abominable
(al-makruh).
• Al-Ibahah is an option given by Lawgiver to the
mukallaf between practicing and avoiding the
action. The consequence of the option is optional
(al-ibahah). The action under this request is
permissible (al-Mubah)
 Wajib & Fard
• For the majority of ulama, wajib and fard
are synonymous, and both convey an
imperative and binding demand of the
Lawgiver addressed to the Mukallaf in
respect of doing something.
• Acting upon something wajib leads to
reward, while omitting it leads to
punishment in this world or hereafter.
 Sub-divisions of wajib
• Types of al-wajib whether it didn’t has a specific
time to perform (al-wajib al-muwassa’), or not
(al-wajib al-mudayyaq).
• Types of al-wajib whether it has limitation/
quantity (al-wajib al-muhaddad) or not (ghair al-
muhaddad).
• Al-wajib al-‘ani dan al-wajib al-kifai
 Al-wajib al-muwassa’, al-wajib al-mudayyaq

• Al-Wajib al-Muwassa’: Is absolute wajib which is

free of any limitation of time.
E.g. Paying kaffarah
• Al-Wajib al-Mudayyaq: is contingent on a time limit
E.g. Solah, fasting in Ramadhan.
• Al-Wajib zu shabahain: is free of any limitation of
time but must be done at the limited period in a year.
E.g. Performing hajj.
 al-wajib al-muhaddad, ghair al-
muhaddad.
• Al-Wajib also can be divided to quantified
wajib (Wajib Muhaddad) and unquantified
wajib (al-wajib ghair muhaddad).
• Wajib muhaddad: salat, zakat, payment of
the price (thaman), payment of rent,
prescribed criminal penalties.
• Wajib ghayr muhaddad: sadaqah, mahr, the
length of standing (qiyam).
 Wajib ‘ayni and kifai
• Wajib ‘ayni: is personal obligation. It is
addressed to every individual himself and
cannot, in principle, be performed for, or on
behalf of another person.
• Wajib kifai: is collective obligation. It
consists of obligations that are addressed to
the community as a whole.
 Mandub (Recommended)
• Mandub denotes a demand of the Lawgiver which
asks the mukallaf to do something which is
however, not binding on the latter.
• To comply with the demand earns the mukallaf
spiritual rewards (thawab) but no punishment if
inflicted for failure to perform.
• E.g. Written agreement of debt
• ‫وإن كنتم على سفر ولم تجدوا كاتبا فرهان مقبوضة فإن أمن‬
‫بعضكم بعضا فليؤد الذي اؤتمن أمانته وليتق هللا ربه‬
 Haram/ forbidden
• Haram is a demand of Lawgiver in respect
of abandoning something, which may be
founded in definitive or a speculative proof.
• Makruh tahrimi:
 Makruh/ abominable
• Makruh is demand of the Lawgiver which
requires the Mukallaf to avoid something
but not in strictly prohibitory term.
Thank You.