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Islamic Jurisprudence
Aijaz Ahmed Jatoi
The Act (Muhkum Fih)
• The Conditions for creation of
Obligation (Takilf)
• The jurists mention a number of conditions for
the existence of obligation (taklifi). A person
acquires an obligation, and is placed under
some kind of duty, when all conditions met,
some how with following conditions.
• The Act to be performed or avoided must be
known
• The subject should be able to perform the act
The Act to be performed or avoided must be
known
• The first condition for the creation of an obligation is
that the subject must be asked to perform a known
act.
• There is no obligation to perform an unknown or
uncertain act, reason is that the subject has to
conceive the act in his mind and usually formulate
an intention for its performance.
• There is a tradition to the effect that the performance of
acts is determined by the nature of intentions (Verily!
The (nature) of acts is determined by intentions).
The subject should be able to perform the
act
• The second condition is that the act should be such
that it can be performed by subject: it could not be
impossible act.
• The purpose of creating obligation is to command the
obedience of subject.
• If the subject is not able to perform the act, the
creation of the obligation becomes futile .
• This condition is split up into two sub-conditions:
• First there is no obligation to perform an
impossible act:
• Second the performs of act should be dependent on
the will of the subject example. L… F… Marriage
• The nature of Act (Muhkum Fih)
• The structure of Islamic laws, its classification and the
consequential obligations and duties , revolves around a
set of rights. Each act affected by an obligation creating
(rule) (hukm taklifi) is based on rights. There are three
basic rights in Islamic law.
• The rights of Allah
• The rights of Individual
• The rights of Allah lying side by side with the right of
individual, these are two types
those in which the the right of Allah predominant.
those in which the right of the individual is
predominant.
the collective rights of the individual or of the community,
also referred to as haqq al-saltanah or huqq al-sultan
• Classification of the Hukm Taklifi on
basis of rights
• The proper classification of laws was first
provided by the Hanafi Jurists including ak-
Sarakhsi. The majority of the jurists classification
under the heading of the mahkm fih or the act to
which the hukm is related.
• That all ahkam are divided into four kinds of
rights and they also further subdivided in it own
kind.
1. Rules that related to the right of Allah alone.
It has Eight Kinds
• Pure worship. The first of these is belief in
Allah or Iman, Prayer, zakat , Fasting
(saom),Hajj, Jihad, umrah, Itikaf
• Pure punishments. These are hudud
penalties that have been instituted as
deterrents as pure right of Allah.
• Imperfect punishment . Exapmle of this type is
prevention from inheritance in case of murder,
the murderer cannot inherit from victim.
• Those vacillating between a worship and
penalties, these are the khaffarat, this is,
expiation made for different reasons.
• Worship in which there is an element of
financial liability. Like. sadaqat al-fitr ,
payment before Eid of Ramdan
• Financial liability in which there is an
element of worship. Like ushr , ten percent
charge leviedon on produce of land
• Financial liability in which there is an
element of punishment . Like kharaj Tax
• Those that exist independently. These are
three: those laid down initially as rule; those
that are imposed as an addition to rule; and
those that are associate with the initial rule.
Like khums levied on cattle, minerals and
treasure-troves
• 2. Rules in which the right of Allah and right of
individual lie side by side but right of Allah is
predominant. Like had of qadhf
• 3 Rules in which the right of Allah and right of
individual lie side by side, but right of
individual that is predominant . Like Qiyas or
retaliation for bodily injuries or culpable homicide
amounting to murder.
• The last category includes almost everything
that is not included in above categories and is
beyond reckoning .
• Classification of Duties : Original
and Substitutory
• Every right has a corresponding duty. A right is
secured when the subject who owes the duty
brings about the required act, that is , performs
the duty owed by him . Muslim jurists say that
each duty has an Original (asl) and a
substitutory form (khalaf).
• For example performance prayer is a duty that
flows out of a right of Allah requiring it. The
condition for its performance is ablution (wudu)
with water , which also becomes a duty as
• It completes a wajib . Now if the Subject
fails to perform this duty , because he
cannot find water, lawgiver provides a
substitute in the form of clean soil.
• In case of qisas or retaliation, it is the duty
of the ruler or state to subject the offender
to qisas. If this is not possible for some
reason , the state has to ensure the
recovery of compensation in money as a
substitute (badal sulh or diyah.)
Thanks

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Islamic juris lect 5

  • 1. Islamic Jurisprudence Aijaz Ahmed Jatoi The Act (Muhkum Fih)
  • 2. • The Conditions for creation of Obligation (Takilf) • The jurists mention a number of conditions for the existence of obligation (taklifi). A person acquires an obligation, and is placed under some kind of duty, when all conditions met, some how with following conditions. • The Act to be performed or avoided must be known • The subject should be able to perform the act
  • 3. The Act to be performed or avoided must be known • The first condition for the creation of an obligation is that the subject must be asked to perform a known act. • There is no obligation to perform an unknown or uncertain act, reason is that the subject has to conceive the act in his mind and usually formulate an intention for its performance. • There is a tradition to the effect that the performance of acts is determined by the nature of intentions (Verily! The (nature) of acts is determined by intentions).
  • 4. The subject should be able to perform the act • The second condition is that the act should be such that it can be performed by subject: it could not be impossible act. • The purpose of creating obligation is to command the obedience of subject. • If the subject is not able to perform the act, the creation of the obligation becomes futile . • This condition is split up into two sub-conditions: • First there is no obligation to perform an impossible act: • Second the performs of act should be dependent on the will of the subject example. L… F… Marriage
  • 5. • The nature of Act (Muhkum Fih) • The structure of Islamic laws, its classification and the consequential obligations and duties , revolves around a set of rights. Each act affected by an obligation creating (rule) (hukm taklifi) is based on rights. There are three basic rights in Islamic law. • The rights of Allah • The rights of Individual • The rights of Allah lying side by side with the right of individual, these are two types those in which the the right of Allah predominant. those in which the right of the individual is predominant. the collective rights of the individual or of the community, also referred to as haqq al-saltanah or huqq al-sultan
  • 6.
  • 7. • Classification of the Hukm Taklifi on basis of rights • The proper classification of laws was first provided by the Hanafi Jurists including ak- Sarakhsi. The majority of the jurists classification under the heading of the mahkm fih or the act to which the hukm is related. • That all ahkam are divided into four kinds of rights and they also further subdivided in it own kind.
  • 8. 1. Rules that related to the right of Allah alone. It has Eight Kinds • Pure worship. The first of these is belief in Allah or Iman, Prayer, zakat , Fasting (saom),Hajj, Jihad, umrah, Itikaf • Pure punishments. These are hudud penalties that have been instituted as deterrents as pure right of Allah. • Imperfect punishment . Exapmle of this type is prevention from inheritance in case of murder, the murderer cannot inherit from victim.
  • 9. • Those vacillating between a worship and penalties, these are the khaffarat, this is, expiation made for different reasons. • Worship in which there is an element of financial liability. Like. sadaqat al-fitr , payment before Eid of Ramdan • Financial liability in which there is an element of worship. Like ushr , ten percent charge leviedon on produce of land
  • 10. • Financial liability in which there is an element of punishment . Like kharaj Tax • Those that exist independently. These are three: those laid down initially as rule; those that are imposed as an addition to rule; and those that are associate with the initial rule. Like khums levied on cattle, minerals and treasure-troves
  • 11. • 2. Rules in which the right of Allah and right of individual lie side by side but right of Allah is predominant. Like had of qadhf • 3 Rules in which the right of Allah and right of individual lie side by side, but right of individual that is predominant . Like Qiyas or retaliation for bodily injuries or culpable homicide amounting to murder. • The last category includes almost everything that is not included in above categories and is beyond reckoning .
  • 12. • Classification of Duties : Original and Substitutory • Every right has a corresponding duty. A right is secured when the subject who owes the duty brings about the required act, that is , performs the duty owed by him . Muslim jurists say that each duty has an Original (asl) and a substitutory form (khalaf). • For example performance prayer is a duty that flows out of a right of Allah requiring it. The condition for its performance is ablution (wudu) with water , which also becomes a duty as
  • 13. • It completes a wajib . Now if the Subject fails to perform this duty , because he cannot find water, lawgiver provides a substitute in the form of clean soil. • In case of qisas or retaliation, it is the duty of the ruler or state to subject the offender to qisas. If this is not possible for some reason , the state has to ensure the recovery of compensation in money as a substitute (badal sulh or diyah.)