Posts Tagged ‘law’

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’].



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بارك الله فيكم وجزاكم الله خير الجزاء

بسم الله الرحمان الرحيم

The question of ‘who is al-Hakim?’ (The Legislator) is fundamental to the science of Usul ul Fiqh (principles of jurisprudence) in Islam, as the answer underpins the way we view this life and the entire Shariah. Al-Hakim means ‘The Legislator’, the one who is sovereign, who has the right to make rules and laws, to decide the halal (permitted) and haram (prohibited) for mankind. Philosophers, theologians and thinkers have discussed the following questions since the beginning of recorded history: Does humankind by the use of their minds alone have the ability to determine what actions should be deemed good and bad, which actions should be praised and which should be shunned? Or do we require the guidance of the Creator, Allah (swt)?

It is true that the mind has the ability to judge the reality as it is and to conclude certain facts about that which we can sense. However it is beyond the scope of the mind to establish laws pertaining to deciding between good and evil actions and a regulatory system including the solutions to all human problems whether individual, social, economic or political. Any such attempt would be fraught with disparity, difference, contradiction and influence from the environment.

Every human being can agree upon objective facts such as the fact that fire burns, the Middle East contains vast oil resources, that men and women are different physically, the meat of a pig has the ability to satisfy hunger and that the USA is currently the dominant superpower in the world, as these are based upon the reality which everyone can perceive.

However people disagree upon how mankind should act, what should be praised and shunned, what should be legal and illegal. People would not disagree that fire burns but different people have various opinions on whether the dead should be cremated by the use of fire. There is no disagreement that the Middle East contains oil, however there are varying views as to whether this oil should be allowed to be in the hands of private companies, should they be nationalised or should they be public properties managed by the state? It is an objective fact to all that men and women differ physically, however the debate exists regarding the laws that govern the relationships between them, should pre-marital relations be permitted? Should both men and women be given exactly the same roles in society? It is questions such as these that have concerned humanity for centuries.

In order to arrive at clear answers to these questions it is paramount to look the objective reality which is perceivable to all. It is clear that by studying the reality that surrounds us that it is impossible to objectively decide upon any actions of humanity in terms of evaluating and distinguishing the good actions from the abhorrent. Therefore it is not feasible for any individual or group of people to organise a system for mankind correctly even for the mind of a genius; since the reality tells us nothing about what is legal or what is illegal; what is good and what is bad; what should be praised and what should be shunned.

When people attempt to decide a system of life for themselves by deciding the right and wrong their ideas would merely be theories amidst thousands of other theories proposed by others. The theories of the Western secular philosophers who lay the foundations of Capitalist societies such as Adam Smith, John Locke, Rousseau, Jeremy Bentham and the like are not objective facts of how societies should be governed. They are only theories devised by laying assumptions and were surely influenced by the environment in which these thinkers lived. In this respect these theories of how to regulate society are equal to the theories of Marx, Engels, Lenin, Trotsky, Hitler, Mussolini or any other human being in that they are theories devised by the limited mind of human beings.

To believe that the mind should be the legislator would mean that there would be no absolute truth regarding good and bad for humanity, as everyone could use their minds to decide their own values of right and wrong. In this case we would not be able to say definitively that rape, murdering of innocents, theft of private property are evil, as to attribute these labels upon them would be our own subjective opinion upon which people could differ.

It is obvious that the mind’s evaluation of good or evil can be affected by the environment in which human beings live and it even becomes disparate and differs with the succession of ages. So if the evaluation of good and evil were left to the mind, the action would be righteous for one group of people and disgusting for others. This can be seen in the world today where dog is served as a national dish in some countries and eating dog is seen as disgusting in others, or where homosexuality is seen as a legitimate course of behaviour in the Western societies and seen as an abomination in others. The same action could be shunned in one age and praised in another such as the view of pre-marital relations between men and women in Europe in the past and the difference between that and the open promiscuity that exists today.

In fact the meaning of ‘good’ and ‘evil’ is subjective according to people’s interpretation of these terms. In the Western Capitalist societies these terms are interpreted according to the secular philosophy upon which they are built i.e. that religion must be separated from life. Secularism led to the concept of Democracy taking root – once religion is separated from life, people were left to decide the law for themselves, as this is practically difficult for all people to decide in unanimity – they elect members of parliament to decide the law on their behalf by the will of the majority. Therefore the determination of all laws such as whether homosexuality should be a legal course of behaviour or prohibited by the law or whether the natural resources such as oil should be privatised or not, are decided by the minds of men.

Human beings incorrectly gave themselves the authority to judge upon the action as good or bad in comparison with things. When they found themselves able to judge upon the bitter thing as qabeeh (abhorrent) and upon the sweet thing as hasan (attractive) and on the disgusting shape as qabeeh and on the beautiful shape as hasan, they thought that they could judge on the truthfulness (sidq) as hasan and the lie as qabeeh, and upon keeping one’s word as hasan and on treachery as qabeeh. Based on this judgement, human beings imposed punishments on the qabeeh action and placed rewards on the hasan action. This judgement is incorrect as the actions cannot be compared to things. The senses can appreciate the bitterness and the sweetness of something and hence the mind can judge upon it. This is contrary to the action which does not possess a matter that human beings can sense so as to judge upon it as qubh or husn. Accordingly, it is absolutely wrong for them to judge upon such an action as husn or qubh from the action itself. Thus they must take this judgement from another source, that is from Allah (swt).

We as Muslims come to conclusive belief in Allah (swt) and the Quran as the final revelation from Allah (swt) based upon the objective reality which everyone can sense. We recognise that we do not have the ability to decide right and wrong for ourselves, rather the depiction of actions must come from a power beyond the mind i.e. the Shariah of Allah (swt). The fact that Allah (swt) is al-Hakim (The Legislator) is established by definitive meaning in numerous verses of Quran.

Allah (swt) says: “The right of rule is solely for Allah.” [TMQ Yusuf: 40]

Allah (swt) has made this a matter of Iman, “But no, by Your Lord, they can have no (real) faith until they make you judge in all disputes between them and find in their souls no resistance against your decisions, but accept them with the fullest submission.” [An-Nisa: 65] Also Allah (swt), the All Wise, states, “O you who believe, obey Allah, obey His Messenger and those in authority amongst you and if you differ over a matter then refer it to Allah and His Messenger if you believe in Allah and the Last Day.” [An-Nisa: 59]

Also Allah (swt) says in Surah al-Ma’idah, “And whosoever does not rule by what Allah has revealed then such are the kafireen (disbelievers).” [Al-Ma’idah: 44]

He (swt) also says, “Judge between them by that which Allah has revealed and follow not their desires and beware of them lest they seduce you from some part of that which Allah has revealed to you.” [Al-Ma’idah: 49]

There are also numerous texts from the ahadith of the Prophet (saw) that establish this, such as:

Al-Bukhari and Muslim narrated from Aisha (r.a.) that the Messenger of Allah (saw) said: “Whoever inserted anything in this our matter (Deen) that is not part of it, it is rejected.”

Islam as the everlasting and universal ideology determines that the description of actions as qabeeh and hasan should be the same for all human beings in all ages. Therefore the depiction of an action being hasan or qabeeh should come from a power beyond the mind; so it must come from the Shari’ah. Thus the characterisation of the human action as qabeeh and hasan comes from Shari’ah. We say treachery is qabeeh and loyalty is hasan, and sinfulness is qabeeh and piety is hasan, and the alliance with the Kuffar against Muslims is qabeeh and the da’wa to re-establish the Islamic Khilafah, is a hasan action, because Shari’ah has demonstrated that.

The speech of the Legislator came related to the actions of the humans (’Ibad), and obliged the people to restrict themselves to it in all their actions, thus the organisation of actions comes from Allah (swt). The Islamic Shari’ah came in relation to all the actions of people, and all their relationships, whether the relationship was with Allah, with themselves, or with others. So there is no place in Islam for the people to put forward canons or laws for organising their relationships, because they are restricted to the Ahkam Shari’ah.

The Prophet (saw) said: “Verily Allah puts down obligations so do not neglect them, and put down limits so do not transgress them, and forbade some things so do not indulge in them, and remained silent about some things, as permitted to you not out of forgetfulness, so do not ask about them.”

The Islamic Shari’ah contains rules of all past events, current problems and all possible incidents that may happen. Nothing has happened in the past or is happening at present or will happen in the future except that each and every one of those things has a ruling from the Islamic Shari’ah. The Islamic Shari’ah encompasses all actions of man, completely and comprehensively, at every time and place. He (swt) said:

وَنَزَّلْنَا عَلَيْكَ الْكِتَابَ تِبْيَانًا لِّكُلِّ شَيْءٍ وَهُدًى وَرَحْمَةً وَبُشْرَى لِلْمُسْلِمِينَ

“And We have sent down to you the Book (the Qur’an) as an exposition of everything, a guidance, a mercy, and glad tidings of those who have submitted for those who have submitted themselves to Allah” [TMQ An-Nahl: 89].

And He (swt) said;

مَّا فَرَّطْنَا فِي الكِتَابِ مِن شَيْءٍ
“Nothing have we omitted from the book”
[TMQ Al-An’am: 38]. And He (swt) said:

الْيَوْمَ أَكْمَلْتُ لَكُمْ دِينَكُمْ وَأَتْمَمْتُ عَلَيْكُمْ نِعْمَتِي وَرَضِيتُ لَكُمُ الإِسْلاَمَ دِينًا

“This day, I have perfected your religion for you, completed my favour upon you, and chosen for you Islam as your way of life (Deen)” [TMQ Al-Ma’idah: 3]

Thus, the Islamic Shari’ah did not neglect a single thing from the actions of the servants of Allah (swt) whatever they may be. The Shari’ah either states an evidence for the action as a text in the Qur’an and the Hadith, or it places a sign in the Qur’an and the Sunnah to indicate the aim of an action, and the illah (legal reason) of its legislation. So the Shari’ah rule applies to any and every action that includes that sign or that reason. It is not possible that a human action does not have an evidence or a sign that indicates its rule. This is due, to the general, and definite meaning of Allah (Subhanahu Wa Ta’aala) saying تِبْيَانًا لِّكُلِّ شَيْءٍ “exposition for everything” [TMQ An-Nahl: 89], and due to the explicit text that Allah (swt) has completed this Deen.

To this effect, Imaam Sayf ud al Amidi (d.631 Hijri) wrote, in his famous work on jurisprudence, al-Ihkam fi Usul al-Ahkam: “You should know that there is no judge (or arbiter) except God, that there is no judgement but His. A necessary entailment of this (proposition) is that human reasoning cannot declare things to be good or bad and that it cannot necessitate gratitude towards the conferrer of bounties. There is indeed, no rule (or judgement) before the revelation of the Shari’ah.” [al-Ihkam fi Usul al-Ahkam, 1:113]



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بارك الله فيكم وجزاكم الله خير الجزاء