Usul al fiqh
Al-hukm al-shari'
Definition
Linguistically
The Arabic word "ḥukm", linguistically, means judgment. Technically, there is a controversy among Muslim Scholars concerning the actual meaning of al-ḥukm al-Sharʿī.
Acc/ to scholars
Defined as: "the speech of the lawgiver related to mukallafīn actions, which indicates demand, permissibility or the legal effects and the legal requirements of such actions."
The word “mukallafīn”
The word “mukallafīn” is a plural form to the word mukallaf. The mukallaf (the legally capable person) is the sane and adult individual to whom the lawgiver's speech is delivered in absence of impediments to obligations.
Characteristics
1- The speech shall be Allah's speech only, which is expressed, about in the legal evidences (al-ʾadilah al-shariyah).
2- The speech should be relevant to mukallafīn acts.
3- The speech should be directed to the sane and adult human being.
Categories
al-ḥukm al-taklīfī (the commissioning legal rule)
al-ḥukm al-waḍʿī (the circumstantial legal rule)
Difference
Def.
the speech of the lawgiver related to actions of the mukallafīn, which entails:
Demand to do
وأقيموا الصلاة
not to do
ولا تقربوا الزنا
Permissibility
فإذا حللتم فاصطادوا
the speech of the lawgiver indicating whether mukallafeen's acts are:
a cause
والسارق والسارقة فاقطعوا أيديهما
condition
impediment
القاتل لا يرث
valid
invalid
Other
Al-taklifi must be within performing ability of mukallaf
Al-wadi' May or may not be within performing ability of mukallaf
Example
The theft, which is a cause of the thief's hand to be cut, is a cause that comes within mukallaf's ability.
Kin relationship, which is a cause of inheritance, is an example of the cause that goes beyond the mukallaf's ability.
al-ḥukm al-taklīfī (the commissioning legal rule)
al-ḥukm al-waḍʿī (the circumstantial legal rule)
Controversy & classification
2- Ḥanafī School
seven-branch division
al-Karaha al-tanzīhia (the condemnation near to legitimation)
al-Karaha al-taḥrīmiah (the condemnation near to prohibition)
al-Farḍiah (irrevocable obligation)
Absolute demand to do, derived from definitive evidence
al-tahrīm (the prohibition – forbiddance)
al-nadb (the recommendation)
al-ijāb (the obligation)
Absolute demand to do, derived from speculative/ non-definitive evidence
al-ibaḥa (the permission – legitimation)
1- Mutakalimīn school
five-branch division
al-tahrīm (the prohibition – forbiddance)
Absolute demand not to do
al-karaha (the dislike – condemnation)
non-absolute demand, recommended not to do
al-ibaḥa (the permission – legitimation)
No demand, doing or not doing is fine
al-nadb (the recommendation)
non absolute demand, recommended to do
al-ijāb (the obligation)
Absolute demand to do
The speech of the lawgiver
Demand
To do
Not to do
Absolute
Non-absolute
Al-fard – al-wajib Obligatory
recommended
forbidden
disliked
No reference to demand
Permissible or mubah
Absolute demand not to do, proven by definitive evidence
non-absolute demand not to do, extracted from non-definitive evidence
Dif.
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