Slides from Dr Mohd. Afandi Bin Awang Hamat, IIUM,UIAM

1. AL-HAKIM

2. 2
AL-HUKM
AL-SHAR’I
SOURCES
OF SHARI’AH
CONCEPTS &
ORIGIN
IJTIHAD
Al-Hakim
Al-Hukm
Mahkum Fihi
The Schools of
Usul al-Fiqh
Origin &
Development
Definition and
Scope
Secondary
Sources
[Non-Textual]
Primary Sources
[Textual]
Historical Sketch
Reform
Shafi’i & al-
Risalah
Mahkum ‘Alayh

3. Introduction
The question of ‘who is al-Hakim? is
fundamental question to the science of Usul ul
Fiqh (principles of jurisprudence) in Islam.
Al-Hakim means ‘The Legislator’, the one who
is Supreme, who has the right to make rules
and laws, to decide the halal (permitted) and
haram (prohibited) for mankind.

4. 4
 Therefore, In Islam, Hakim or Legislator Refers to Allah SWT
Almighty to whom the hukm originates. His will and command
is known to the mukallaf either directly through divine
revelation, or indirectly by means of inference, deduction and
ijtihad.
 Allah said in Qur’an: The prerogative of command belongs to
God alone.
”“
“The hukm belongs to Allah alone.”
[al-An’am :57]
INTRODUCTION

5. We are not supposed to obey and follow other than Allah’s guidance
and laws. Allah said in Qur’an highlighting those people who were
obeying others beside Allah:
66676866-68(
The Day when their faces are flipped into the Fire,
they will say, "If only we had obeyed Allah and
obeyed the Messenger."
67. And they will say, "Lord, we have obeyed our
superiors and our dignitaries, but they led us away
from the way.
68. Lord, give them double the punishment, and
curse them with a great curse."

6. Allah also insisted that the right to legalize the law is indeed belonged
only to Allah, the creator of universe.
26
and He shares His power and authority with no one.
{21]
Or is it that they have partners who set out for them religious
laws never authorized by Allah?
116.[
And do not say of falsehood declared by your tongues, "This
is lawful, and this is unlawful," in order to invent lies and
attribute them to God. Those who invent lies and attribute
them to God will not succeed.

7. ( 51)
“The only saying of the faithful believers, when they are called
to Allâh (the Qur'ân) and His Messenger SAW (hadith), to
judge between them, is that they say: "We hear and we obey."
And such are the prosperous ones (who will stay forever in
Paradise)”.
It is different from the attributes of the kuffar (Jews) as mentioned by Allah
in al-Quran:
93]
They said, "We hear and disobey.

8. Divine as the source of Law
Again Allah said in Qur’an:
“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]

9. 9
Divine as the source of Law
 The majority of jurist agreed that the lawgiver lays down laws in the
interest of man (maslahah)
 But, is man free to determine his own interest, or is it predetermined
by the lawgiver? A theological question arises as to how men can
know that something is good which they should do it or bad that they
should avoid it.
 The jurists are in disagreement of the way in which the will or the
hukm of the lawgiver regarding the conduct of the mukallaf is to be
known or identified.
 Can we know it by means of our intellectual faculty without the aid
and meditation of messengers and scriptures? In other words, is the
human intellect incapable of ascertaining the law without divine
guidance? The same question arises concerning harmony and
concordance between reason and revelation.

10. Muslim 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 avoided? 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.

11. 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 avoided, what should be legal and illegal. People
would agree that fire burns, but different people have various opinions
on whether the dead animals should be burned by the use of fire for
eating.
It is an objective fact to all that men and women are 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.

12. 12
THREE MAJOR THEORIES
THE
MATURIDITES
&
HANAFITES
THE
MATURIDITES
&
HANAFITES
THE
MU’TAZILITES
THE
MU’TAZILITES
THE
ASHA’ARITES
&
THE MAJORITY
OF JURISTS
THE
ASHA’ARITES
&
THE MAJORITY
OF JURISTS
THEORIESTHEORIES

13. 13
THE ASH’ARITES & THE MAJORITY OF JURISTS
 The laws of Allah can be discovered through revelation alone. It is not
possible for human intellect to determine what is good and evil in the
conduct of the mukallaf, or to identify the hukm of the lawgiver
concerning the conduct of the mukallaf without divine guidance.
 Human reasoning and judgement are liable to err. An act is regarded
by one person as good and others as evil.
 Right and wrong are not determined by reference to the nature of
things or our perception but are determined as such by God.
 The criterion of right and wrong is shariah not ‘aql.

14. 14
THE ASH’ARITES – LEGAL EFFECT
 A man is not required to do something or to avoid doing it unless the
law has been communicated to him in advance. No one is either
rewarded for an act or punished for an omission unless he knows its
status by means of clear communication.
 A person living in total isolation and never received the message of
the lawgiver is not a mukallaf and deserves neither reward no
punishment.
“And We never punish until We send a messenger”
[al-Isra’ :15]

15. 15
 The reward and punishment are based on the revealed law, not
human intellect.
 In another verse the Quran affirms that punishment is imposed only
after the people are duly warned, not before that.
“Had We inflicted on them a penalty before this (revelation) they
would have said: Our Lord! If only you had sent us a messenger, we
would have followed your signs”
[Ta Ha :134]

16. Continue……
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).

17. Continue……
According to Ashari’s theory: 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
recognize that we do not have the ability to decide
right and wrong for ourselves, rather the
interpretation of actions must come from a power
beyond the mind ( 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]

18. 18
THE MU’TAZILITES
 The Mu’tazilite agreed with the majority that the source of all laws is
Allah, but they disagree with them about the identification and
discovery of these laws prior to revelation.
 Human intellect can identify the law of God regarding the conduct of
the mukallaf even without the mediation of scriptures or messengers.
 The Shariah only removes the curtain from what the ‘aql could itself
perceive, and in essence the former is identical with the latter.
 The ‘aql can identify the good and evil in human conduct by reference
to its benefit and harm. This is because God only asks the mukallaf to
do what is beneficial and forbids him from doing what is harmful.

 Whatever ‘aql sees as good or right, is also good in the sight of God.

19. 19
THE MU’TAZILITES – LEGAL EFFECT
 3]

 [29]
 108]
 The legal effect of this theory is that a person who has
received no communication from the lawgiver can still be
considered a mukallaf and be held responsible on the
basis of reason, thus he or she will be rewarded or
punished accordingly.


20. 20
THE MATURIDITES & THE HANAFITES
 The Maturidites and the Hanafites suggested a middle course.
 Right and wrong in the conduct of the mukallaf can indeed be
ascertained and evaluated by the human intellect.
 190
 191]
 However, the law of God in regard to such conduct is not always
identical with the dictates of ‘aql, for human intellect sometimes is
liable to error.
 Hence, The knowledge of right and wrong, reward and punishment
finally must be based on aqal and divine communication.

21. 21
Point of distinction
 In the event, there is no divine from Allah, man is subject to
follow his aql, However, it is different from muktazilah, when
the maturidiyyah insisted that there is always mercy and
taubat provided by Allah swt to his servants.

22. 22
CONCLUSION
 The essential point of this disagreement is whether [reason]
can be used as a source of law for those things on which the
Shari’ah is silent.
 The fundamental stance of Muslim jurists is that there is no
such thing as natural law outside the realm of the Shari’ah.
Such a rule needs to be discovered directly or indirectly from
the principles of Islamic law.