•USHUL FIQH 3 •HAKIM (THE LAWGIVER), MAHKUM FIIH (THE ACT), MAHKUM ‘ALAIH (THE SUBJECT) AND AHLIYAH (LEGAL CAPACITY) • •CONTENT

HAKIM (THE LAWGIVER), MAHKUM FIIH (THE ACT), MAHKUM ‘ALAIH (THE SUBJECT) AND AHLIYAH (LEGAL CAPACITY)

1.Who is Hakim (The Lawgiver)? 2.What is Mahkum Fiih (The Act)? And what are its classifications? 3.Mahkum ‘alaih (The Subject/Mukallaf) 4.Ahliyah (Legal Capacity) and its obstacles:

A.  Samawiyah (Natural Causes)

•Sighar (Minority) •Junun (Insanity) •‘Atah (Idiocy) •Naum wa ighma’ (Sleep and fits of fainting) •Nisyan (Foregtfulness) •Maradh al-maut (Death-illness)

B.  Muktasabah (Acquired Causes)

•Sukr (Intoxication) •Hazl (Jest) •Safah (Indiscretion) •Ikrah (Coercion and duress) •Khata’ wa Jahl (Mistake and Ignorance) •1. Who is Hakim (The Lawgiver)?

In the Islamic law the only Lawgiver is Allah. Allah is the True source of all laws.

Inil hukmu illaa liLlah (The hukm belongs to Allah alone) (Quran 6:57)

Alaa lahul hukm (surely His is the hukm) (Quran 6:62)

Whoever did not judge by what Allah revealed, those are they that are the unbelievers, because except Him there is no one has the authority of making law.

The task of all prophets is delivering the laws of Allah, while the task of all mujtahidin is understanding them by the methodology and principles of Ushul Fiqh.

•2. What is Mahkum Fiih (The Act)? And what are its classifications?

Mahkum fiih: The act to which the hukm is related.

The condition of the act:

1.The act to be performed or avoided must be known. 2.The subject (mukallaf) should be able to perform the act.

The nature of the act and its classification:

The act to which the hukm is related maybe for the common interest or for the specific one.

If it is for the common interest then it is haqq Allah (the Right of Allah) like ibadah mahdhah (pure worship), hudud, kaffarat and sadaqatul fitr etc.

And if it is for the specific interest then it is haqq al-’abd (the right of the individual) like ta’zir.

And if the right of Allah and the right of the individual lie side by side, but the right of Allah is predominant then it is like hadd al-qadhaf (the punishment of accusing another for having unlawful sexual intercourse).

And if the right of Allah and the right of the individual lie side by side, but the right of the individual is predominant then it is like qisas (retaliation for bodily injuries or culpable homicide amounting to murder).

•3. Mahkum ‘alaih (The Subject)

Mahkum ‘alaih: The person whose act invokes a hukm.

He is known as the Mukallaf (Subject). Mukallaf is a person who possesses ahliyah (legal capacity), whether he acts directly or through delegated authority.

•4. Ahliyah (Legal Capacity) and its obstacles:

Ahliyah is the ability or fitness to acquire rights and exercise them and to accept duties and perform them.

The types of ahliyah:

1.Ahliyah al-wujub: The capacity for acquisition of rights. 2.Ahliyah al-adak: The capacity for execution or performance of duties.

The obstacles of ahliyah:

A.  Samawiyah (Natural Causes)

B.  Muktasabah (Acquired Causes)

•A.  Samawiyah (Natural Causes)
1. Sighar (Minority)

Sighar (minority) is the state or condition of a human being after birth and before puberty.

The sabiyy (minor) is liable for compensation of property destroyed by him, for goods and services bought, for maintenance of relatives and also for zakat.

The minor is not liable for the ibadat, for financial transactions and for punishments.

•2. Junun (Insanity)

The insane person is liable for destruction of property and payment of diyah.

The insane person has no liability for ibadat or punishments and all his transactions are void.

•3. ‘Atah (Idiocy)

It is a state in which a person at times speaks like a sane and normal person, while at others he is like a madman.

The capacity of an idiot is deemed equivalent to that of a sabiyy mumayyiz (the discriminating minor), who can be permitted by his guardian to undertake some transactions.

•4. Naum wa ighma’ (Sleep and fits of fainting)

Sleep and fits do not effect ahliyah al-wujub.

There is no liability for punishments and transactions.

•5. Nisyan (Foregtfulness)

Forgetfulness does not affect ahliyah al-wujub nor does it affect the capacity for execution.

•6. Maradh al-maut (Death-illness)

This is a condition in which the mind of a sick person is dominated by the fact that he will die because of his illness.

Maradh al-maut has no effect on the capacity for acquisition and the capacity for execution.

B.Muktasabah (Acquired Causes)
1. Sukr (Intoxication)

Drunkenness is a state caused in a human being due to the use of an intoxicant, which temporarily suspends the proper functioning of the mental faculty.

Intoxication does not cause a change in the capacity for acquisition. However, the capacity for execution is negated in the case of the drunken person by the state of drunkenness.

•2. Hazl (Jest)

Hazl or jest has no effect on the capacity for acquisition and the capacity for execution.

This based on the tradition that says: “Three things intended seriously are taken seriously, and if intended in jest are taken seriously: marriage, divorce, and the freeing of a slave”.

•3. Safah (Indiscretion)

This defect concerns financial transactions, that is, transactions undertaken carelessly and in a manner that a prudent person is likely to avoid.

The effect of safah is that a person, who has attained puberty, is subjected to hajr (interdiction) till such time that he mends his ways.

•4. Ikrah (Coercion and duress)

Ikrah is a situation in which one is forced to do something without his willingness.

Ikrah has no effect either on the capacity for acquisition or the capacity for execution, because this state does not affect life or reason and discretion. It does, however, negate free consent and willingness.

•5. Khata’ wa Jahl (Mistake and Ignorance)

Jahl (Ignorance) of law does not negate the capacity of acquisition and the capacity of execution. However, some times jahl can be ‘udzur (a reason).

Jahl may be within the dar al-Islam (Islamic state) or within dar al-harb (enemy territory).

Jahl of the law that has been established in the Qoran, Sunnah and Ijma’) within the dar al-Islam does not become  ‘udzur (a reason), because knowing the law within it is obligatory.

And jahl of the law within dar al-Harb becomes a reason, because this place is the place of ignoring the law.

Khata’ does not negate the capacity for acquisition and the capacity for execution. However, it can become ‘udzur (a reason), for example, the mistaken divorce is void.