Chapter 6: The Legal Ruling [al-Hukm al-Shar’i]

Posted: December 7, 2009 in Usul & Fiqh; and Various Legal Studies
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بسم الله الرحمان الرحيم

The following is the draft english translation from the Usul Al-Fiqh masterpiece of the Arabic book الشخصية الاسلاميَة الجزء الثالث (The Islamic Personality Volume 3 ) by Sheikh Taqiuddin an-Nabhani. Please refer to the original Arabic for accurate meanings.

Allah addresses the legally responsible persons [mukallafīn] with the entirety of the Islamic Shari’ah, comprising both its foundations and branches, that is, the beliefs and the rules related to actions. However the science of Usūl al-Fiqh is not concerned with the foundations (beliefs). Rather it is concerned with the branches (legal rulings related to actions). Further it is concerned with the legal rulings related to actions from the perspective of the bases upon which the rulings are built, not from the perspective of the various rules and issues a ruling contains. Hence it is necessary to appreciate the reality of the legal ruling [hukm shar’i] when studying the legal evidences.

The scholars of usūl have defined the legal ruling as ‘the address of the legislator related to the actions of the servants in terms of compulsion [iqtidā’], choice [takhyīr], or declaration [wad’].

The legislator is Allah, the Exalted, and hence the ‘address of the legislator’ means the address of Allah. Further, although the address of Allah directs the listener towards certain rules and principles, the address is the original meaning itself not what it directs towards. Thus the very meaning which the words and compounds denote is the address.

The reason for using ‘the address of the legislator’ instead of ‘the address of Allah’ is to include the Sunnah and the Ijma’ al-Sahabah, both of which also signify the address of Allah. The use of ‘the address of Allah’ may give the wrong impression that the Qur’an alone is intended; yet the Sunnah too is revelation and as such is the address of the legislator, and the Ijma’ al-Sahabah reveals an evidence from the Sunnah so it too is the address of the legislator.

The reason for using actions of the ‘servants’, instead of ‘mukallifīn’ is so as to include the rulings related to the child and the insane like the zakat due on their wealth.

The meaning of the legal ruling being related to compulsion [iqtidā’] is its being related to a request [talab], because the meaning of the word iqtidā’ is talab. The request is of two types: the request to act, and the request to abstain. If the request to act is decisive [jāzim] then it denotes the obligation [ījāb, fard], and if it is non-decisive then it denotes the recommendation [mandūb, sunnah, nāfilah]. If the request to abstain is decisive then it denotes the prohibition [tahrīm, hadhr], and if it is non-decisive then it denotes the reprehensibility [karahah]. As for choice [takhyīr] it denotes the permissibility.

As for the address of declaration [wad’], or the address related to the action of the servants in terms of declaration, then it is the making of a thing a cause [sabab] or preventative factor [mani’] etc. like the sunset being the necessitating factor for the presence of the prayer, and thereby being the cause [sabab] of prayer, and like the impurity being a preventative factor for prayer. Hence these things, whilst they are signs [‘alamah] for the rulings, they are also rulings in their own right. Allah has made the moving of the Sun from its zenith [zawāl] the sign for the presence of Dhuhr, and the presence of impurity a sign for the invalidity of prayer. There is no meaning to the zawāl being necessitating except its being a request to perform the prayer, nor is there a meaning to the impurity invalidating except its being a request to abstain from impurity. As such these things in their reality are an address from the Legislator.

Hence the definition of the hukm shar’i as ‘the address of the legislator related to the actions of the servants’ is both comprehensive and exclusive [jāmi mani’]. With its reference to the relation to compulsion or choice it covers the five rulings: wājib, mandub, harām, makruh, mubah, and by its reference to the declaration it covers the sabab, shart, mani’, sahih, batil, fāsid, rukhsah and azimah. On the basis of this definition the address of the Legislator is of two types: the address of responsibility [khitab al-taklīf] and the address of declaration [khitab al-wad’].



<Aduhai teman, tidakkah kau sedar bahawa dunia ini hanyalah suatu persinggahan? Maka, perlulah kita bersegera kembali kepada hakiki. Menuai bekalan bagi menempuh perjalanan ke negeri abadi itu… Sesungguhnya teman, persinggahan ini cumalah satu… sekali sahaja… hanya satu tiket, satu perhentian… bangunlah, usah kita terus terleka dalam mimpi yang sementara ini…>

بارك الله فيكم وجزاكم الله خير الجزاء

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