Hukm Shari: Elements and Classifications
The legal mechanics of rights and obligations are governed by Hukm Shari.
- Definitions: The Arabic word 'hukm' literally means a command, while technically it translates to rules.
- Purpose: The fundamental purpose of studying 'hukm-shari' is to understand the conceptual part of Islamic law.
- Elements: It consists of three elements that interact to give rise to liability and legal obligations: (1) The Hakim (Lawgiver), (2) The Mahkum Fihi (The act), and (3) The Mahkum Alayh (The subject). 'The object' is EXCEPTED as a distinct primary element in this list.
- Expressions: Formulated through demands for the commission of an act, omission of an act, or choices. There are 2 categories of Hukm derived from declamatory communications.
- Hukum-Takleefi: Explicitly aims to create an obligation for commission of an act or omission of an act and grant a choice between command or demand.
- Secific Legal Duties:
- Ijab (Obligation): Arises when the demand is expressed in binding terms for the commission of an act.
- Wajid: Defined as a demand by the Lawgiver for the commission of an act without making it binding and without assigning blame for its omission.
- Makruh (Disapproved Act): Divided by the Hanafi school into two specific types.