Introduction to Islamic Law and Jurisprudence

A. Islam:
1 – Islam, which in Arabic means submission. In sharee’ah terminology its meaning varies according to
usage, and it may mean one of two things:
(i) When the word is used on its own and is not accompanied by the word eemaan (faith, belief), it
refers to the religion as a whole, including both major and minor issues of belief, words and deeds, as
in the verses where Allaah says (interpretation of the meaning):
“Truly, the religion with Allaah is Islam” [Aal ‘Imraan 3:19] “and have chosen for you Islam as your
religion” [al-Maa’idah 5:3] “And whoever seeks a religion other than Islam, it will never be accepted
of him” [Aal ‘Imraan 3:85]
Hence some of the scholars defined it as meaning: Submitting to Allaah by affirming that He is One
(Tawheed) and submitting to Him by obeying Him and disavowing shirk and its people.
(ii) When it is used in conjunction with the word eemaan (faith, belief), in which case it refers to
outward deeds and words, as in the verses where Allaah says (interpretation of the meaning):
“The bedouins say: ‘We believe.’ Say: ‘You believe not but you only say, “We have surrendered (in
Islam),”for Faith has not yet entered your hearts’…” [al-Hjuraat 49:14]

5 Pillars of Islam
1) Shahadatayn (Testimony of Faith)
2) Iqaamu al-Salaah (Five Obligatory Prayers)
3) Eetaa-u al-Zakaah (Alms giving)
4) Sawmu Ramdaan (Fasting of Ramadaan)
5) al-Hajj (Pilgrimage)

6 Articles of Faith
1) Belief in Allah
2) Belief in Angels
3) Belief in Divine Revealed Scriptures
4) Belief in the Prophets
5) Belief of the Last Day
6) Belief in the Divine Predestination
B. Shariah:
Linguistically, Shari’ah has two literal meanings: First, “The Straight Path”; Second, “path to watering
place or hole” where animals drinks. Technically, Shari’ah means the “laws that are prescribed by
Allah upon his servants through the tongue of a messenger among His messengers.” or simply the
Totality of Allah’s commandments.
Shariah has principal characteristics:
They are the following, among others: Divine, Preserved and Eternal, Comprehensive and Complete,
Idealistic, Realistic and Practical.
Shari’ah is a Divine law because it is from Allah (SWT);

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It is Eternal and Preserved because its sources are preserved and eternal and will continue to remain
and reach generation after generation;
It is comprehensive and complete because it encompasses all aspects of life. It gives us guidance
from the day we are born till the day we die – it even relates to us before we are born and after we die;
and
Lastly Shari’ah is Idealistic, Realistic and Practical because it deals with the human beings as they
are, it acknowledges their needs and desires. Allah knows the humans He created and knows that they
need to eat, drink, and get married. They have materialistic necessities and needs the same way they
have their spiritual and emotional needs. “To each of you We prescribed a law and a method.” (5:48)

THE INJUNCTION ON JUSTICE IN THE DIVINE REVELATION

“We sent aforetime Our Apostles with clear signs and sent down with them the Book and the Balance
that men may stand forth in Justice”. (57:25)
“Allah commands justice, the doing of good, and charity to kith and kin and He forbids all shameful
deeds, and injustice and rebellion. He instructs you, that ye may receive admonition”. (16:90)

Justice as Respect to People

1. The central notion of Justice in Shari’ah is based on mutual respect of one human being by
another. The just society in Islam means, the society that secures and maintains respect for persons
through various social arrangements that are in the common interests of all members of the society.
2. Man as Khalifah (vicegerent of Allah on earth) must always be treated as an end in himself and
never merely as a means since he is the cream of creation and the central of the Qur’an.
3. Respect for person in the Shari’ah is rooted in the Divine injunctions of the Qur’an and the precepts
of the Prophet (peace be upon him).
Allah said:
“The best amongst you in the eyes of Allah are those who are stronger in Taqwa (fear of
Allah).”
Prophet Mohammad (peace be upon him) said:
“There is no difference between an Arab and a Non-Arab, and a black and a white except by
Taqwa (fear of Allah).”
Five (5) Domains of Shari’ah:
1. Islamic Beliefs (Al-Aqaa-id al-Islaamiyyah): Allah has prescribed laws regarding the
correct belief system His servants should have.
2. Al-‘Ibaadah: Allah also prescribed laws and guidance on how he should be worshipped.
(ex. Salaat, Zakaat, Sawm, Hajj, etc.)
3. Al-Akhlaaq – these are the morals, ethics and etiquettes prescribed by Islam.
4. Al-Mu’aamalah (Civil Transactions): These are the prescribed laws governing civil
transactions.
5. Al-Hudud wal-Uqubat (Penal Laws): These are the penal laws prescribed by Islam to
specific crimes.
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Shari’ah has been prescribed upon us by Allah (SWT) for the protection of the five (5) Maqaasid
(Foundational Goals/Objectives/Essential Values). The following are the five (5) Maqaasid al-
Shari’ah:
1. Religion / Faith (Deen)
2. Life (Nafs)
3. Lineage / Progeny (Nasl)
4. Intellect (‘Aql)
5. Property / Wealth (Mal)
6. Honor (‘Ird)

Allah doesn’t prescribe something upon his creations unless the Maslahah (benefit, interest, good) that
comes out of it is (Rajihah) preponderant or outweighs any harm if there is harm. Likewise, Allah
doesn’t forbid anything unless the Mafsadah (harm or evil) that results from it is preponderant or
outweighs the benefit or good.
There are 3 Levels or Categories of Masaalih (sing. Maslahah), they are the following:
1. Daruriyyah (Essentials)
2. Haajiyyah (Necessities)
3. Tahsiniyyah (Embellishments)

Allah prescribed laws that will protect the existence of the five (5) Masaalih ; Jihad has been prescribed
for the protection of Religion and Qisas is prescribed for the protection of Life.
The Different Categories of the Objectives of Shari’ah
1. THE ESSENTIALS (AL-DARURIYAT):
The essentials are the matters on which the religion and worldly affairs of the people depend
upon, their neglect will lead to total disruption and disorder and it could lead to evil ending. These must
be protected and all measures that aim at safeguarding them must be taken, whether by individual or by
the government authorities. This is divided into 5 categories:
a. Protection of al-din: Al-din is the most important values that must be protected by the
Muslims. It is obligatory upon each and every Muslim to protect his al – din at personal level and at
every level. The protection of al din at a personal level is achieved through the observance of the
different kinds of (ibadah) worship.
b. Protection of Life (al – nafs): Life is essential and valuable to everyone. Therefore it must
be protected in all circumstances and in this respect, there is no difference between the life of the rich
and the poor, between the leader and the subordinates , Muslim and non – Muslims. Protecting
everyone’s life is equally important and obligatory to each and every individual and societies.
c. Protection of Dignity or Lineage (al – Ird): One of the essential elements in the life of a
person is his or her dignity. Islam is very concerned about the dignity of a person and emphasizes the
importance of protecting dignity. Protection of dignity includes the protection of individual rights to
privacy and not exposing or accusing others of misbehaviors.

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 In addition, it also means ensuring that the relationship between a man and a women are done
respectful and responsible way. Islam has enacted a number of guidelines in order to protect the dignity
of mankind. It prohibits it followers from accusing others of mischief such as committing adultery or
other immoral behaviours.
d. Protection of the Intellect or Mind (al-’Aql): Al-’aql or the intellect is a great gift from
Allah to mankind. This is one of human capacities that differences man from animals. Allah has
ordered that everyone should protect this precious gift from Allah by utilizing the mental for the benefit
of all and not for any kind of evil or anything that might lead to destruction.
e. Protection of Property (al-Mal): Acquiring property is one of the necessities of mankind.
Everyone has his/her own property and would like to have all the necessary protection and security for
his/her property. Islam has ordered that no one should transgress and acquire the property of others
without legitimate reasons and without proper contract.
2. THE COMPLEMENTARY (AL-HAJIYYAT)
The complementary interests or al-hajiyyah on the whole supplement to the five essential
interests and it refers to those kind of interests whose neglect leads to hardship of the individual or
community although it does not lead to the total disruption of normal life. There are many examples of
al-hajiyyat such as the dispensations or legal excuses (rukhsah) that the Shari’ah has granted in regards
to ibadah for the travelers and the sick.
3. THE EMBELLISHMENTS (AL-TAHSINIYYAT):
The embellishments or al-tahsiniyyat refer to interests whose realization lead to improvement
and the attainment of that which is desirable. Therefore, the observance of cleanliness in personal
appearance and in ibadah, oral virtues, avoiding extravagance and measures that are designed to
prevent proliferation of false claims in the courts, etc., falls under the category of al-tahsiniyyat. This
might level to the lack of comfort in life.
Other General Objectives of Shariah
Thorough studies in Qur’an and sunnah will reveal that apart from the above objectives of
Shari’ah, there are several other general objectives of Shari’ah. These objectives include the following:
a. Educating the Individual (tahdhib al-fard): One of the primary objectives of Shari’ah is to
educate the individuals. All the different injunctions of Shari’ah seek to educate the individuals and
inspire them with faith and instills in them the qualities of being trustworthy and righteous. It is
through reforming the individual that Islam aims at achieving its social goals.
b. Upholding of Justice (‘adl): Upholding the principle of justice or ‘adl is another basic
objectives of the Shari’ah in the social sphere. ‘Adl literally means placing things in their right place
where they belong. It is to establish a balance by way of fulfilling rights and obligations and by
eliminating excess and disparity in all spheres of life. The concept of justice in Shari’ah is not confined
to the judicial aspects but it covers all areas of life including individual justice, social justice and
international justice. This is obvious from the objectives and comprehensive approach that the Qur’an
has taken towards justice.

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The Characteristics of Shari’ah
The Shari’ah is a divine revelation, has its own characteristics and advantages. These
characteristics are the special features of this Shari’ah which differentiate it from other systems of law
developed by mankind. The characteristics are as follows:
a. Shari’ah is Divining Origin (al-Rabbaniyyah):
Islam as a whole is a divine relation. Therefore, one of the distinguishing features of the
Shari’ah is the fact that it comes only from Allah and it has religious elements. The source of the
Shari’ah is divine revelation, unlike others systems of law. Allah who created man knows what is the
system that is best to suit all the need of mankind.
The implications of the fact that the Shari’ah is from Allah are:
* i. Shari’ah law is free from discrepancies and shortcomings.
Shari’ah law is the product of Allah the Creator of mankind. Allah has no vested interests when
he revealed the Shari’ah, therefore it is purely revealed for the interest of mankind. This is different
from any man made law which has the tendency to be manipulated in order to serve or to benefit the
interest of certain group of people. The principle of equality (al-musawat) in Islam is a perfect example
to manifest free from any discrepancies.

* ii. Respecting, Honoring and obeying its Commandments

People will have a respect in obeying the commandments of Allah (Shari’ah) as it is divine order
and is different from any other’s commandment which come from man. It is part of the ‘aqidah of a
Muslim to believe and obey all the commandments of Allah as implementing them are part of ‘ibadah.
b. Shari’ah is Universal, Realistic and Contemporary (al-Waqi’iyyah)
The Shari’ah in all its components is universal, realistic and contemporary. The belief system in
Islam is realistic in the sense that Allah have ordered the Muslims to worship Him alone and He has
provided many evidences in the Qur’an and sunnah about His existence. In addition, all the unseen
matters which are the pillars of Islam such as the belief in the divine decree (qada’ wa al-qadar) is
simple and understandable to the average mind.
c. Shari’ah Propagates the Protection of Interest and Rejection of Evil
This is evident in all rulings of the Shari’ah which were revealed for the benefit of mankind at
all time. An example of the ruling related to a person who has killed another person intentionally. The
punishment for this crime is the accused shall forfeit his life unless he obtains pardon from the
deceased heirs.

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DEFINITION OF FIQH
Al-Fiqh:
Linguistically: (faqiha) The understanding for what is intended. Technically: (fiqh) The
knowledge of the practical rules of Shari’ah acquired from the detailed evidences in the sources of
Shari’ah; it does not deal with Aqeedah.
Faqih: one who understands the rulings of Fiqh.
The Distinction between Shari’ah and Fiqh
Shari’ah is the wider circle, it includes all human actions, but fiqh is confined to what are
commonly understood as human acts as far as their legality and illegality are concerned.
Shari’ah is the body of revealed injunctions found both in the Qur’an and Sunnah and it includes
the following three components of Aqidah, Akhlaq and Fiqh. Fiqh is one of the component of Shari’ah
Shari’ah is fixed and unchangeable, whereas certain ruling of Fiqh changes according to the
changes of circumstances under which it is applied.
The Shari’ah is based on revelations in which the knowledge is only obtained from the Qur’an
and Sunnah. In Fiqh, the power of reasoning is stressed, and deductions based upon knowledge are
continuously referred to with approval. In Fiqh, an action is either legal or illegal but in Shari’ah there
are various degrees of approval and disapproval.
Types of Fiqh
1. Fiqh -al- Ibadah:
a. Rulings related to prayer (salat) that covers the entire ruling related to prayer from the
performance of ablution up to the prerequisite of prayer and the action that can invalidate
prayer.
b. Ruling related to fasting (saum), this section covers all rulings related to the obligation of
fasting in the month of Ramadhan and other kinds of optional fasting. It includes the time of fasting
and restriction and other related rulings.
c. Rulings related to almsgiving (zakat). This section covers the obligatory almsgiving which
is compulsory to every individual called zakatul fitr and zakat related to other kinds of properties of
income of which zakat is due on the items. It includes the zakat of fixed income, crops, animals,
business, real properties, shares and other items. It also includes the rulings related to optional
almsgiving (sadaqah).
d. Ruling related to Hajj and this covers all rulings related to the performance of hajj such as
the condition, prerequisite and the different types of hajj, the pillars of hajj and other related rulings.
2. Fiqh -al- Muamalah/Aadah:
This category covers the rulings that govern the relationship between man and man, and man
and other creatures of Allah. This category covers most topics of fiqh, as it is concern about the rulings
and principals that govern the action and all matters related to all human beings. This part of Islamic
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law is concerned about the rules and regulations involving man and how they should respect the rights
of each other. It also provides the suitable penalty for those who transgress their limits and go against
the rules and regulations revealed unto them.
a. Rulings related to family law (al-ahwal al-shakhsiyyah). This includes the rulings related
to marriage, divorce, custody of child after divorce, and all other related rulings of family law. It also
discusses the law of inheritance.
b. Ruling related to commercial transaction between parties involved in the transaction (al
ahkam al-muaamalah). This includes various business contracts such as the sale and purchase
contract, leasing, pawn, rules and regulation of companies and other related ruling.
c. Rulings concerning the management of finance of the state or the economic system of the
state (fiqh al-iqtisad). This includes the discussion the sources of income of the state and how it
should be managed, the regulations of the financial institutions such as banking and insurance
institutions and other related rulings.
d. Rulings related to the administration of justice in Islam (al ahkam al qada wa turuq al
ithbat). This includes the procedures of courts, the appointment of judges, the qualification of judge,
the court proceedings and all other related matters. It also includes in this section the ruling on the
evidence law.
e. Rulings related to the rights of non-Muslims in an Islamic state (al ahkam al dhimmi wa
al musta’an). This includes the obligations and responsibilities to protect the group of the minorities in
the Islamic state. In addition, it also talks about the related taxes to be paid by this group to the
government.
f. Rulings determining the relationship between an Islamic government and a foreign
government (al ahkam al-siyar). This includes sending of diplomatic mission, and other matters
related to the relations between two governments.
g. rulings which govern the political system in Islam (al ahkam as-siyaasah or an nizam as-
siyaasa). The discussion under this section covers all the rights and responsibilities of citizens, the
constitution of the country, the appointment of political leaders, the qualification of the leaders, the
power of the executives and other related matters to politics.
h. The criminal law of Islam (al ahkam al jinayah). This includes the punishment for those
who commit crimes in the society. Some of the punishments are determined by the text (Qur’an or
Sunnah) and some of them are left to the discretion of the judge to decide on them depending on the
types of crimes committed.
i. other laws governing the relationship between man and other Allah’s creatures. This
includes the protection of the environment and the animal rights and other related matters.
Distinctions between shari’ah and Fiqh
1. Shari’ah is the wider circle, it includes all human actions but fiqh is confined to what are commonly
understood as human acts as far as their legality and illegality are concerned.

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2. Shari’ah is the body of revealed injunctions found both in the Qur’an and Sunnah and it includes the
following three components Al-Ahkam al-Itiqadiyyah or aqeedah, al-ahkam al-akhliqiyyah and aal-
ahkam al-amaliyyah which are collectively called fiqh. It is obvious that Fiqh is one component of
Shar’iah
3. Shari’ah is fixed and unchangeable, whereas certain ruling of fiqh changes according to the changes
of the circumstances under they are applied.
4. The Shari’ah is based on revelation in which the knowledge is only obtained from the Qur’an or
Sunnah. In fiqh the power of reasoning is stressed and deductions based upon knowledge are
continuously preferred to with approval.
5. In fiqh an action is either legal or illegal but in the shari’ah there are various degrees of approval or
disapproval. However, it must be noted that the line of distinction is not clearly drawn and very often
Muslims scholars used the two terms interchangeably as for the criterion of all human actions whether
in the Shari’ah or in Fiqh it is the same.

Definition of Usool al-Fiqh as a Science:

“Knowledge of the proof of Fiqh in general, and the manner of their utilization and the condition of the
one who utilizes them”
The meaning of the word ‘generality‘(al-ijmaliyyah) is: general rules, such as the saying:
commanding indicates obligation and forbidding indicates prohibition, and good health requires [that
whatever has to be implemented] be implemented. So from this [definition], we can exclude specific
evidences, as they are not mentioned in Usui ul-Fiqh except by way of giving an example for the rule.
The meaning of the words 'and how to make full use of them' (wa kayfiyat ul-istifadata
minha) is: knowledge of how to allow the rulings to make full use of the evidences by studying the
words and their implications, [distinguishing] the general from the specific, the restricted from the

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unrestricted and the abrogated from the abrogating and other than that; so by virtue of his insight the
faqih can benefit from the evidences of fiqh and the rulings. The meaning of the words 'condition of the
beneficiary' (hal al-mustafid): if the beneficiary is a Mujtahid then he is named as such due to his
benefitting from the evidences because he has reached the level of a Mujtahid, so knowledge of the
Mujtahid and the conditions of Ijtihad and its ruling return to Usul ul-Fiqh.
The Benefits of Jurisprudence
Usul ul-Fiqh is a noble science, of the utmost importance, immensely rewarding, (by which one
is) able to obtain a capacity to extract legal rulings from evidences on a sound footing.
The first person to make this an independent science was Imam ash-Shafi'i Muhammad Ibn
Idris, then many other scholars followed him in that and authored many books, which ranged from
prose, poetry and brief and long volumes until it became an entity in its own right with discernible
features.
The Science of Usool al-Fiqh is about the method by which rules are deduced from indications
(evidences), so imagine a man thinking of a way to pick a fruit from a tree! The man is the mujtahid;
the tree is the source/ evidence; the fruit is the hukm (ruling) and the method of picking is the
procedure of deduction.
1. The Rules (Fruit)
2. The Sources (Tree)
3. The Rules of Interpretation (Istinbaat)/ Implications (Dalalaat) (Method of Picking)
4. The Interpreter (al-Mujtahid) and His Work (Ijtihaad) (Man)

Usool al-Fiqh
A. (as a genitive construction) is defined by its two components:
o Usool (plural of Asl):
1. The proof,
2. The foundation,
3. That which is preferable (Al-Rajih),
4. The continuous (original) rule and
5. The original case in rules of Qiyas.
[For the purpose of this class, we will be using the first definition] Example: Eating pig and a dead
animal is haram, which is the Asl. In the case we are lost or in a situation that we have to eat or we die,
then we can eat it and it becomes Wajib for us to eat it.
Usooli: jurist; one who knows the sources and evidence behind rulings knows why it’s wajib to pray
five times a day
o Al-Fiqh:
▪ Linguistically: (faqiha) the understanding for what is intended.
▪ Technically: (fiqh) The knowledge of the practical rules of Shari’ah acquired from the detailed
evidences in the sources of Shari’ah; it does not deal with Aqeedah.
Faqih: one who understands the rulings of Fiqh.

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 B. Usool Al-Fiqh (as a term made up of both words):
a) The sciences of knowing what the sources of Fiqh are and how to use those sources, and
the circumstances of the benefactor [i.e. the Mujtahid or the Layman (Muqlid-confined to
one school of thought)].

A Mujtahid needs to follow all the rules of the Islamic law and cannot be confined in a single
school of thought when deriving laws. He also needs to be aware of laws that were abrogated (Nasikh
Mansookh). Sources: Qur’an, Sunnah, ijmaa', ijtihad.
b) “Knowledge of the proof of Fiqh in general, and the manner of their utilization and the
condition of the one who utilizes them”

Usul al-fiqh, or the roots of Islamic law, expound the indications and methods by which the rules of
fiqh are deduced from their sources. These indications are found mainly in the Qur'an and Sunnah,
which are the principal sources of the Shari'ah. The rules of fiqh are thus derived from the Qur'an and
Sunnah inconformity with a body of principles and methods which are collectively known as usul al-
fiqh. Some writers have described usul al-fiqh as the methodology of law, a description which is
accurate but incomplete. Although the methods of interpretation and deduction are of primary concern
to usul al- fiqh, the latter is not exclusively devoted to methodology.
Example

110: Muhsin Khan: And perform As-Salat (Iqamat-as-Salat), and give Zakat, and whatever of good
(deeds that Allah loves) you send forth for yourselves before you, you shall find it with Allah.
Certainly, Allah is All-Seer of what you do. [Surah Al-Baqarah, 2:110]
▪ This is a specific verse from the Qur’an. We learn from this verse that we must establish
salah and we must give zakah. How did we come to that conclusion?
▪ The order: Establish Salah!
▪ The Usool al-Fiqh principle: If Allah commands us to do something
▪ (Amr), the default is that it is compulsory for us to do it NOW.
▪ Thus: establish salah is compulsory (fard).

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FIQH VS. USOOL AL-FIQH

Fiqh teaches us: Usool Al Fiqh teaches us:

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DEFINITION OF HUKM SHAR`I
➢ Communication from the Lawgiver concerning the conduct of the mukallaf (person in full
possession of his faculties) which consists of a demand, an option or an enactment.

Example:
The Qur'anic command which addresses the believers to `fulfill your contracts' (al-Ma'idah, 5:1) is a
speech of the Lawgiver addressed to the mukallaf which consists of a particular demand. A demand
addressed to the mukallaf which conveys a prohibition may be illustrated by reference to the Qur'anic
text which provides: 'O you believers, let not some people ridicule others, for it is possible that the
latter are better than the former [...]' (al-Hujurat, 49:11). To illustrate a hukm which conveys an option,
we refer to the Qur'anic text which permits the believers to 'hunt when you have come out of the state
of ihram' (sacred state entered into for the purpose of performing the hajj pilgrimage) (al -Ma'idah,
5:2).
HUKM SHAR'I is divided into the two main varieties:
A. AL-HUKM AL-TAKLIFI (DEFINING LAW) and
B. AL-HUKM AL- WAD'I (DECLARATORY LAW).

➢ AL-HUKM AL-TAKLIFI (Defining law) may be described as a communication from the

Lawgiver which demands the mukallaf to do something or forbids him from doing something, or
gives him an option between the two. This type of hukm occurs in the well-known five categories
of :
1. Wajib (Obligatory),
2. Mandub (Recommended),
3. Haram (Forbidden),
4. Makruh (Abominable) And
5. Mubah (Permissible).

The Obligatory (Wajib, Fard)

 I.1 The Obligatory (Wajib, Fard)
For the majority of ulema, 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 in the hereafter.
 The Hanafis have, however, drawn a distinction between wajib and fard. An act is thus
obligatory in the first degree, that is, fard, when the command to do it is conveyed in a clear and
definitive text of the Qur'an or Sunnah. But if the command to do something is established in a
speculative (zanni) authority, such as an Ahad Hadith, the act would be obligatory in the second
degree (wajib). The obligatory commands to perform the salah, the hajj, and to obey one's
parents are thus classified under fard, as
 They are each established in a definitive text of the Quran. But the obligation to recite sura al-
Fatihah in salah, or to perform salat al-witr, that is, the three units of prayers which conclude the
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 late evening prayers (salat al-'isha'), are on the other hand classified under wajib, as they are
both established in the authority of Hadith whose authenticity is not completely free of doubt.
1.2 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
reward (thawab) but no punishment is inflicted for failure to perform. Creating a charitable
endowment (waqf), for example, giving alms to the poor, fasting on days outside Ramadan,
attending the sick, etc., are duties of this kind.
1.3 Haram (Forbidden)
 According to the majority of ulema, haram (also known as mahzur) is a binding demand of the
lawgiver in respect of abandoning something, which may be founded in a definitive or a
speculative proof.
 Committing the haram is punishable and omitting it is rewarded. But according to the Hanafis,
haram is a binding demand to abandon something which is established in definitive proof;
 Haram may be communicated in the form of a command to avoid a certain form of conduct.
 For example: there is the Qur'anic text which provides that wine-drinking and gambling are
works of the devil and then orders the believers to 'avoid it (al-Ma'idah, 5:90).

1.4 Makruh (Abominable)

 An equivalent term to makruh occurs, for example, in the Hadith which reads: 'The most
abominable of permissible things [abghad al-halal] in the sight of God is divorce.
1.5 Mubah (Permissible)
 Mubah (also referred to as halal and ja'iz) is defined as communication from the Lawgiver
concerning the conduct of the mukallaf which gives him the option to do or not to do something.
The Lawgiver's communication may be in the form of a clear nass such as the Qur'anic text
which provides, in a reference to foodstuffs, that `this day all things good and pure have been
made lawful (uhilla) to you [...]' (al-Ma'idah, 5:6).
➢ AL-HUKM AL-WADI
 Al-hukm al-wad'i is rendered 'declaratory law', as this type of hukm mainly declares the legal
relationship between the cause (sabab) and its effect (musabbab) or between the condition
(shart) and its object (mashrut).
 'Declaratory law' is defined as communication from the Lawgiver which enacts something into a
cause (sabab), a condition (shart) or a hindrance (mani`) to something else.
 This may be illustrated by reference to the Qur'anic text regarding the punishment of adultery,
which enacts the act of adultery itself as the cause of its punishment (al-Baqarah, 2:24). An
example of the declaratory law which consists of a condition is the Qur'anic' text on the
pilgrimage of hajj: 'Pilgrimage is a duty owed to God by people who can manage to make the
journey' (Al-Imran 3:97).

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  An example of a declaratory law consisting of a hindrance is the Hadith which provides that
'there shall be no bequest to an heir', [39. Abu Dawud, Sunan, II, 808; Hadith no. 2864.] which
obviously enacts the tie of kinship between the testator and the legatee into a hindrance to
bequest. Similarly, the Hadith which lays down the rule that 'the killer shall not inherit', renders
killing a hindrance to inheritance. [40. Shafi`i, Risalah, p. 80; Ibn Majah, Sunan, II, 913, Hadith
no. 2735.]
 An example of a declaratory law consisting of a hindrance is the Hadith which provides that 'there
shall be no bequest to an heir', [39. Abu Dawud, Sunan, II, 808; Hadith no. 2864.] which
obviously enacts the tie of kinship between the testator and the legatee into a hindrance to bequest.
Similarly, the Hadith which lays down the rule that 'the killer shall not inherit', renders killing a
hindrance to inheritance. [40. Shafi`i, Risalah, p. 80; Ibn Majah, Sunan, II, 913, Hadith no. 2735.]

TYPES OF HUKM WAD’I:

1. Cause (Sabab)
2. Condition (Shart)
3. Hindrance (Mani`)
4. Strict Law (`Azimah) and Concessionary Law (Rukhsah)
5. Valid, Irregular and Void (Sahih, Fasid, Batil)

2.1 Cause (Sabab)

 A sabab is defined as an attribute which is evident and constant [wasf zahir wa-mundabat] and
which the Lawgiver has identified as the indicator of a hukm in such a way that its presence
necessitates the presence of the hukm and its absence means that the hukm is also absent. A
sabab may be an act which is within the power of the mukallaf, such as murder and theft in their
status as the causes of retaliation (qisas) and a hadd penalty respectively. Alternatively, the
sabab may be beyond the control of the mukallaf such as minority being the cause of
guardianship over the person and property of a minor.
 When the sabab is present, whether it is within or beyond the control of the mukallaf, its effect
(i.e. the musabbab) is automatically present even if the mukallaf had not intended it to be. For
example, when a man divorces his wife by a revocable talaq, he is entitled to resume marital
relations with her even it he openly denies himself that right. Similarly, when a man enters into a
contract of marriage, he is obligated to provide dower and maintenance for his wife even if he
explicitly stipulates the opposite in their contract. For once the Lawgiver identifies something as
a cause, the effect of that cause comes about by virtue of the Lawgiver's decree regardless of
whether the mukallaf intended it to be so or not.
2.2 Condition (Shart)
 A shart is defined as an evident and constant attribute whose absence necessitates the absence of
the hukm but whose presence does not automatically bring about its object (mashrut). For
example, the presence of a valid marriage is a precondition of divorce, her it does not mean that
when there is a valid marriage, it must lead to divorce. Similarly, the ablution (wudu') is a
necessary condition of salah, but the presence of wudu does not necessitate salah.
 A condition normally complements the cause and gives it its full effect. Killing is, for example,
the cause of retaliation; however, this is on condition that it is deliberate and hostile. The
contract of marriage legalizes/causes sexual enjoyment between the spouses; however, this is on

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 condition that two witnesses testify to the marriage. The legal consequences of a contract are not
fully realized without the fulfillment of its necessary conditions.
 A condition may be laid down by the Lawgiver, or by the mukallaf. Whenever the former enacts
a condition, it is referred to as shart shar'i, or 'legal condition', but if it is a condition which is
stipulated by the mukallaf, it is referred to shart ja'li, or 'improvised condition'. An example of
the former is witnesses in a marriage contract, and of the latter, the case when spouses stipulate
in their marriage contract the condition that they will reside in a particular locality.
 Shart also differs with rukn (pillar, essential requirement) in that the latter partakes in the
essence of a thing. This would mean that the law or hukm, could not exist in the absence of its
rukn. When the whole or even a part of the rukn is absent, the hukm collapses completely, with
the result that the latter becomes null and void (batil). A shart, on the other hand, does not
partake in the essence of a hukm, although it is a complementary part of it. Bowing and
prostration (ruku' and sajdah), for example, are each an essential requirement (rukn) of salah and
partake in the very essence of salah, but ablution is a condition of salah as it is an attribute
whose absence disrupts the salah but which does not partake in its essence.

2.3 Hindrance (Mani`)

 A mani` is defined as an act or an attribute whose presence either nullifies the hukm or the cause
of the hukm. In either case, the result is the same, namely that the presence of the mani' means
the absence of the hukm. For example, difference of religion, and killing, are both obstacles to
inheritance between a legal heir and his deceased relative, despite the fact that there may exist a
valid tie of kinship (qarabah) between them: when the obstacle is present, the hukm, which is
inheritance, is absent.
From the viewpoint of its effect on the cause (sabab) or on the hukm itself, the mani' is divided into two
types:
1. First, the mani` which affects the cause in the sense that its presence nullifies the cause. An example
of this is the indebtedness of a person who is liable to the payment of zakah. The fact of his being ill
debt hinders the cause of zakah, which is ownership of property. A person who is in debt to the
extent of insolvency is no longer considered, for purposes of zakah, to be owning any property at
all. Thus when the cause is nullified, the hukm itself, which is the duty to pay zakah, is also
nullified.
2. Secondly, there is the hindrance which affects the hukm. The presence of this type of hindrance
nullifies the hukm directly, even if the cause and the condition are both present. An example of this
is paternity, which hinders retaliation: if a father kills his son, he is not liable to retaliation although
he may be punished otherwise. Paternity thus hinders retaliation according to the majority of ulema
(except Imam Malik) despite the presence of the cause of retaliation, which is killing, and its
condition, which is hostility and the intention to kill. Imam Malik has held, on the other hand, that
the father may be retaliated against for the deliberate killing of his offspring.

2.4 Strict Law (`Azimah) and Concessionary Law (Rukhsah)

 A law, or hukm, is an 'azimah when it is in its primary and unabated rigour without reference to
any attenuating circumstances which may soften its original force or even entirely suspend it. It
is, in other words, a law as the Lawgiver had intended it in the first place. For example, salah,
zakah, the hajj, jihad, etc., which God has enjoined upon all competent individuals, are classified
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 under 'azimah. A law, or hukm, is a rukhsah, by contrast, when it is considered in conjunction
with attenuating circumstances.
 Whereas `azimah is the law in its normal state, rukhsah embodies the exceptions, if any, that the
Lawgiver has granted with a view to bringing facility and ease in difficult circumstances. Thus
the law which grants a concession to travelers to break the fast during Ramadan is an exception
to the norm that requires everyone to fast. The concessionary law in this case is valid only for
the duration of traveling, after which the 'azimah must be complied with again.
 Similarly, if a Muslim is compelled to renounce his faith, he is permitted to do so even though
the strict law would require him to persist in his faith until death. The excuse in this case is
founded in the right of the person to life, and is clearly granted in the Qur'an (al-Nahl, 16:106),
which allows the utterance of words of infidelity under duress. Strict law may consist of either
commands or prohibitions. Thus the prohibition of murder, theft, adultery, wine- drinking, etc.,
are all instances of 'azimah in the Qur'an.

2.5 Valid, Irregular and Void (Sahih, Fasid, Batil)

 These are Shari'ah values which describe and evaluate legal acts incurred by the mukallaf. To
evaluate an act according to these criteria depends on whether or not the act in question fulfils
the essential requirements (arkan) and conditions (shurut) that the Shari'ah has laid down for it,
as well as to ensure that there exist no obstacles to hinder its proper conclusion.
 For example, salah is a shar'i act and is evaluated as valid when it fulfils all the essential
requirements and conditions that the Shari'ah has provided in this regard. Conversely, salah
becomes void when any of its essential requirements and conditions are lacking. Similarly, a
contract is described as valid when it fulfils all of its necessary requirements, and where there is
nothing to hinder its conclusion; otherwise it is void. When salah is performed according to its
requirements, it fulfils the wajib, otherwise, the wajib remains unfulfilled. A valid contract gives
rise to all of its legal consequences whereas a void contract fails to satisfy its legal purpose.
 The ulema are in agreement to the effect that acts of devotion (`ibadat) can either be valid or
void, in the sense that there is no intermediate category in between. Legal acts are valid when
they fulfill all the requirements pertaining to the essential requirements (arkan), causes,
conditions and hindrances, and are void when any of these is lacking or deficient. An act of
devotion which is void is nom-existent ab initio and of no consequence whatsoever.
 The majority of ulema have maintained a similar view with regard to transactions, namely, that a
transaction is valid when it is complete in all respects. Only a valid contract of sale, for example,
can give rise to its legal consequences, namely, to transfer ownership of the object of sale to the
buyer and to establish the vendor's ownership over its price (thaman).
 A contract is void when it is deficient in respect of any of its requirements, although the Hanafis
are in disagreement with the majority over the precise nature of this deficiency. The majority of
ulema maintain that invalidity is a monolithic concept in that there are no shades and degrees of
invalidity. An act or transaction is either valid or void, and there is nothing in between.
According to this view, fasid and batil are two words with the same meaning, whether in
reference to devotional matters or to civil transactions. Likewise, to the majority it makes no
difference whether the deficiency in a contract affects an essential element (rukn) such as the
sale of a dead carcass, or a condition, such as sale for an unspecified price; both are void and
non-existent ab initio.
 The Hanafis have, however, distinguished an intermediate category between the valid and void,
namely the fasid. When the deficiency in a contract affects an essential requirement (rukn), the
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 contract is null and void and fulfils no legal propose. If, however, the deficiency in a contract
only affects a condition, the contract is fasid but not void. A fasid contract, although deficient in
some respects, is still a contract and produces some of its legal consequences, but not all. Thus a
fasid contract of sale establishes the purchaser's ownership over the object of sale when he has
taken possession thereof, but does not entitle the purchaser to the usufruct (intifa').
 Similarly, in the case of an irregular contract of marriage, such as one without witnesses, the
spouses or the qadi must either remove the deficiency or dissolve the marriage, even if the
marriage has been consummated. If the deficiency is known before consummation, the
consummation is unlawful. But the wife is still entitled to the dower (mahr) and must observe
the waiting period of `iddah upon dissolution of marriage. The offspring of a fasid marriage is
legitimate, but the wife is not entitled to maintenance, and no right of inheritance between the
spouses can proceed from such a marriage.
 The Hanafis describe the fasid as something which is essentially lawful (mashru`) but is
deficient in respect of an attribute (wasf) as opposed to the batil which is unlawful (ghayr
mashru') on account of its deficiency in regard to both essence (asl) and attribute The Hanafi
approach to the fasid is also grounded in the idea that the deficiency which affects the attribute
but not the essence of a transaction can often be removed and rectified. If, for example, a
contract of sale is concluded without assigning a specified price, it is possible to specify the
price (thaman) after the conclusion of the contract and thus rectify the irregularity at a later
opportunity, that is, as soon as it is known to exist or as soon as possible.

PILLARS OF HUKM SHAR’I

The Pillars (Arkan) of Hukm Shar'i
The hukm shar'i, that is, the law or value of Shari'ah, consists of three essential components. First of
all, the hukm must have been authorised by the hakim, that is, the Lawgiver; it must also have a subject
matter which is referred to as mahkum fih, and then an audience, namely the mahkum `alayh, who
must be capable of understanding or at least of receiving the hukm.
1. The Lawgiver (Hakim)
The ulema are unanimous to the effect that the source of all law in Islam is God Most High, whose will
and command is known to the mukallaf either directly through divine revelation, or indirectly by means
of inference, deduction and ijtihad. The Qur'an repeatedly tells us that 'The prerogative of command
belongs to God alone' (Al-Imran, 6:57).
2. The Subject-Matter of Hukm (al-Mahkum Fih)
Mahkum fih denotes the acts, rights and obligations of the mukallaf which constitute the subject-matter
of a command, prohibition or permissibility. When the ruling of the Lawgiver occurs in the forms of
either wajib or mandub, in either case the individual is required to act in some way. Similarly, when the
hukm of the Lawgiver consists of a prohibition (tahrim) or abomination (karahah), it is once again
concerned with the conduct of the mukallaf. In sum, all commands and prohibitions are concerned with
the acts and conduct of the mukallaf.
3. The Subject of Hukm (al-Mahkum ‘alayh)
Mukallaf, the person to whom the hukm is addressed, sane and of majority of age.

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ADILLAH SHAR’IYYAH - MEANS SOURCES OF LAW (LEGAL EVIDENCES OR
PROOFS)
 Concerning their source:
1. Adillah Naqliyyah (Transmitted proofs) - Transmitted proof with a strong chain of
trustworthy narrators. No rational justification is required in its favor.
For Example: The Qur’an, Sunnah, Ijmaa’ and statements of the sahaba.
Specific case: On Zakah does not need to be rationalized, since it is in the Qur’an, but we can
rationalize to explain the wisdom behind it.
2. Adillah Aqliyyah (Rational Proofs)- a proof which was founded through reason and requires
rational justification
For example: Qiyas, Istishaab, & Sadd Al-Dharaa’i
Specific Case: When discussing drug use, we can rationalize its haram nature since it isn’t explicitly
said in the Qur’an and Sunnah. We can compare it to alcohol which is haram according to Surah Al-
Maaidah.
 Rules of Interpretation (Istinbaat)
1. Qaati’ (Definitive) - it indicates clear injunctions of the proof in respect to its transmission
and meaning. Like the Qur’an.
Example: “Establish Salah”
2. Dhanni’ or Zanni (Speculative)-it indicates speculative clearance of the proof in its
transmission or meaning, or both. An example of a speculative transmission is of a solitary
report (or hadith Ahaad). Such a hadith could have had any number of narrators or reporters,
but every chain of transmission has the same person in it. That single person could be in any
generation, whether the sahaba’s or the tabi’een’s.
Specific example: An example of a speculative meaning is the word Qur’ in the Qur’an (Surah Al-
Baqarah, 2:228) in respect to the waiting period of a divorcee, it can be interpreted as blood or purity.

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