The Subject-Matter of Hukm (al-Mahkum Fih)

III.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.

When the demand of the Lawgiver occurs in the form of a defining law (al-hukm al-taklifi) such as fasting, jihad, and the payment of zakah, etc., the subject-matter of the hukm is the act of the mukallaf. Similarly, when the demand of the Lawgiver occurs in the form of declaratory law (al-hukm al-wad`i),

of that cause, namely the fasting, consists of the act of the mukallaf. [59. Khallaf, `Ilm, p. 128; Abu Zahrah, Usul, p. 249.] In order to constitute the subject matter of a hukm, the conduct which the individual is required to do, or

avoid doing, must fulfill the following three conditions.

Firstly, the individual must know the nature of the conduct so that he can perform what is required of him or refrain from that which is forbidden. [60. Knowledge in this context means understanding the nature of a command or a prohibition

by the individual to the extent that he can act upon it. It does not mean affirmation of the mind (tasdiq). For if this were to be a requirement, the unbelievers would

have been excluded from the meaning of mukallaf, which they are not. See Shawkani, Irshad, p. 11.] An ambivalent text or a locution which does not impart this knowledge cannot constitute the basis of either a command or a prohibition. The

ambivalent (mujmal) text of the Qur'an concerning salah, zakah and hajj, for example, did not obligate anyone until these matters were explained and clarified by the Prophet. The manner in which these obligations were to be discharged was also explained in precise terms. Furthermore, the ulema are in agreement to the effect that the necessary instruction or explanations must not be delayed and must be given in time when they are needed, otherwise they would fail to provide the basis of obligation (taklif).

When we say that the individual must know the nature of the act he is required to do, it means that it should be possible for him to obtain such knowledge. Hence when a person is in full possession of his capacities and it is possible for him to learn the law, he is presumed to know his legal obligations. The law is therefore applied to him, and his ignorance of the rules of Shari'ah is no excuse. For if actual knowledge by the individual were to be a requirement of the law, it would be very difficult to prove such knowledge in all cases of violation. It is therefore sufficient to ensure that the individual can acquire knowledge of the Shari'ah either directly or by asking those who have such knowledge.

Secondly, the act which the individual is required to do must be within his capability, or, in the case of

a prohibition, be within his capability to avoid. No law may thus demand something which is beyond the capacity of the individual. The principle here is dearly stated in the Qur'an, which declares that `God does not obligate a living soul beyond the limits of his capacity' (al-Baqarah, 2:256) and that `God puts no burden on any person beyond what He has given him' (al-Talaq, 65:7).

An act may be conceptually unfeasible, such as asking a person to be awake and asleep at the same time, or asking him to do and not to do something simultaneously. Likewise, an act may be physically impossible, such as ordering a person to fly without the necessary means. No-one may be required to do the impossible, and it makes no difference whether the act is impossible by its nature or whether it is

128ff; Abu Zahrah, Usul, 250ff.]

A corollary of this rule is that no person may be obligated to act on behalf of another person or to stop another competent individual from acting. For this would be tantamount to asking a person to do the impossible. No-one may therefore be legally obligated to pay the zakah on behalf of his brother, or to perform the salah on behalf of his father, or to prevent his neighbour from committing theft. All that one mukallaf may be lawfully expected to do in such situations is to give good advice (nasihah) as a part of his general duty to promote good and to prevent evil to the extent that this is possible for him as

a law-abiding citizen.

Similarly, no-one may be obligated to do or not to do something in regard to which he has no choice, such as asking someone to act against his natural and biological functions. Thus when we read in the Hadith a command asking the Muslims to `avoid anger [la taghdab]', although the manifest (zahir) terms of this Hadith demand avoidance of a natural phenomenon, what it really means is that the adverse consequences of uncontrolled anger which might lead to taking the law into one's own hands must be avoided. To give another example, the Qur'an orders the believers 'not to despair over matters that have passed you by, nor to exult over the favours that are bestowed upon you' (al-Hadid, 57:23). Pleasure and despair are natural phenomena, and as such they are basically beyond the individual's control. What is really meant here is that one should avoid the consequences of despair such as violence against oneself or another person, and ensure that joy and happiness do not lead to arrogance and contemptuous behaviour.

There is, of course, some hardship involved in all obligations. The kind of hardship that people can tolerate without prejudice or injury is not the aim. It is intolerable hardship which the Shari'ah does not impose. The Shari'ah, for instance, forbids continuous fasting (sawm al-wisal), or staying up all night for worship. Furthermore, the Shari'ah has granted certain concessions with a view to preventing hardship to individuals, and it is strongly recommended that they be utilised. This is the purport of the reminder contained in the Hadith that 'God loves to see that His concessions are taken advantage of, just

as He hates to see the commission of a sin.' [62. Ibn Hanbal, Musnad, II, 108.]

In yet another Hadith we read an address to the believers, who are asked: `fulfill your duties to the extent of your ability', [63. Muslim, Sahih Muslim, p.104,. Hadith no.378.] which obviously means that legal obligations

are only operative within the limits of one's capacity.

A hukm shar`i may sometimes impose unusual hardship on the individual, such as the fulfillment of certain collective obligations like jihad (holy struggle) and hisbah, that is, promotion of good and prevention of evil, under adverse conditions. Jihad which requires the sacrifice of one's life is

And lastly, the demand to act or not to act must originate in an authoritative source which can command the obedience of the mukallaf. This would mean that the hukm must emanate from God or His messenger. It is mainly due to this requirement that the proof or evidence in which the law is founded must be identified and explained. Consequently, we find that in their juristic expositions, the fuqaha normally explain the evidential basis (hujjiyyah) of the rules of Shari'ah that they expound, especially

rules which are aimed at regulating the conduct of the mukallaf. [65. Abdur Rahim, Jurisprudence, p. 202; Abu Zahrah, Usul,

p.256ff.]

The next topic which needs to be discussed under the subject-matter of hukm is the division of rights into the two categories of haqq Allah and haqq al-`abd.

The acts of the mukallaf may consist of either a Right of God (haqq Allah) or a Right of Man (haqq al- `abd), or of a combination of both. The Right of God is called so not because it is of any benefit to God, but because it is beneficial to the community at large and not merely to a particular individual. It is, in other words, a public right and differs from the Right of Man, or private right, in that its enforcement is

a duty of the state. The enforcement of a private right, on the other hand, is up to the person whose right has been infringed, who may or may nor wish to demand its enforcement. [66. Khallaf, `Ilm, p. 128; Abu 'Id, Mabahith, p.

128.] The ulema have further classified these rights under four main categories, which are as follows.

Firstly, acts which exclusively consist of the Right of God, such as acts of devotion and worship, including salah and jihad, which are the pillars of religion and are necessary for the establishment of an Islamic order. These, which are often referred to as huquq Allah al-khalisah, or pure Rights of God', occur in eight varieties:

a) Rights of God which, consist exclusively of worship, such, as professing the faith (iman), salah, zakah, the pilgrimage and jihad.

b) Rights which consist of both worship and financial liability (ma'unah), such as charity given on the occasion of 'id al-fitr, marking the end of Ramadan.

c) Rights in which financial liability is greater than worship, like the tithe that is levied on agricultural crops.

d) Rights of God which consist of financial liability but have a propensity toward punishment, such as the imposition of kharaj tax on land in the conquered territories.

f) Rights which consist of minor punishment (`uqubah qasirah), such as excluding the murderer from the inheritance of his victim. This is called `uqubah qasirah on account of the fact that it inflicts only a financial loss.

g) `Punishments which lean toward worship', such as the penances (kaffarat).

h) Exclusive rights, in the sense that they consist of rights alone and are not necessarily addressed to the mukallaf, such as the community right to mineral wealth or to the spoils of war (ghana'im). [67. Abu Sinnah,

Nazariyyah al-Haqq', p.179; Abu 'Id, Mabahith, p. 141ff.]

Secondly, acts which exclusively consist of the rights of men, such as the right to enforce a contract, or the right to compensation for loss, the purchaser's right to own the object he has purchased, the vendor's right to own the price paid to him, the right of pre-emption (shuf ), and so on. To enforce such rights is entirely at the option of the individual concerned; he may demand them or waive them, even without any consideration.

Thirdly, acts in which the rights of the community and those of individuals, are combined, while of the two the former preponderate. The right to punish a slanderer (qadhif) belongs, according to the Hanafis, to this class, by reason of the attack made on the honour of one of its members. Since the Right of God is dominant in qadhf, the victim of this offence (i.e. the maqdhuf) cannot exonerate the offender from punishment. The Shafi`is have, however, held the contrary view by saying that qadhf is an exclusive Right of Man and that the person so defamed is entitled to exonerate the defamer. All acts which aim at protecting human life, intellect and property, fall under this category. To implement consultation (shura) in public affairs is one example, or the right of the individual in respect of bay'ah in electing the head of state. According to the Maliki jurist al-Qarafi, all rights in Islam partake in the Right of God in the exclusive sense that there is no right whatsoever without the haqq Allah constituting a part thereof. Thus when a person buys a house, he exercises his private right insofar as it benefits him, but the transaction partakes in the Right of God insofar as the buyer is liable to pay the purchase price. The basic criterion of distinction between the Right of God and the Right of Man is whether it can be exempted by the individual or not. Thus the vendor is able to exonerate the purchaser from paying the price, and a wife is able to exonerate her husband from paying her a dower (mahr), but the individual

cannot exonerate anyone from obligatory prayers, or from the payment of zakah. [68. Abu Sinnah, Nazariyyah al-

Haqq', p. 181.]

Fourthly, there are matters in which public and private rights are combined but where the latter preponderate. Retaliation (qisas), and blood-money (diyah) of any kind, whether for life or for grievous

offender through a ta'zir punishment even if he is pardoned by the relatives of the deceased. [69. Abu Zahrah,

Usul, p. 257; Abu 'Id, Mabahith, p. 145.]