SSAAR (JHSS); Journal of September, 2019 Editions

Humanities and Social Science

Sub-Sahara African Academic
Research Publications Journal of Humanities and
September, 2019 Editions Social Science.
Vol.14, No.6, ISSN:2316-1989

EXAMINATION OF AL-HUKM AL-WAD’I (DECLARATORY LAW) UNDER THE

SHARI’AH LEGAL SYSTEM

SABO KARABI GIADE

A.D.Rufa’i College for Legal and Islamic Studies, P.M.B. 004 Misau, Bauchi State,
Nigeria.

Abstract:
This write up is aimed at having a thorough examination of the rules of shari’ah
pertaining to HUKM or rules which in the bases of understanding the rules as to
whether they are obligatory, recommended, prohibited, disapproved or
permitted. The HUKM or rule can be perceived in two different categories as
HUKM At-Taklifi (a rule that demand, prohibit or give option) and Hukm Al-wadi
(explain the relationship between the different obligatory rules) it will therefore
be observed that Hukm Taklifi requires the performance of an act from a mukallaf
(subject law) prohibiting him or giving him option while Hukm wad’i is not
concerned about that, but it borders on the fact that doing a particular act is a
condition for another thing to happen or it prevents a particular rule to take
effect. Example, presence of witnesses or payment of dowry is a condition for
marriage contract.

INTRODUCTION
Praise be to Allah, the beneficent the merciful. Master of the Day of Judgment may
the peace and blessings of Allah be upon his last prophet Muhammad bin
Abdullah (SAW)
We can refer to the last verse of the Surah At-teen where Allah (SAW) said:

“Is not Allah the wisest of Judges?”1

Shari’ah means a complete way of life. It touches all Human acts be they religious,
political, financial, social, etc.
Allah, the Omnipotent is the law giver or law maker who sent down His
injunctions through his prophet in form of Qur’an (the most glorious) He as well
is the law giver who commands the doing or abstaining from some acts for the

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reason that such acts may be beneficial or harmful to human beings. He said in
his book;

“verily, when He intends a things, His command is, Be and it is” 2

THE MEANING OF HUKM

Hukm as the name suggest, literally means a command, and technically, it means
a “rule”
The rule here encompasses so many dimensions as rational rule, rule perceive by
senses or a rule based on Experience 3
a- Rational rule:- this is the rule that we use our rationale to deduce it’s
meaning E.g.1+4=5
b- Rule perceive by senses:- this is the rule deductable by our senses for
example fire burns.
c- Rule based on experience or experiment. This is just like something that
is judicially noticed, that is, there is no need of proof. E.g. sun rises from
the east and set at the west or alcohol intoxicates, aspirin relives pain etc.

There is no controversy among the Islamic just as to the fact that Hukm come
from Allah Q: An’am verses 58.

The meaning of Hukm Shar’i

It is important and essential to give a brief explanation of the Hukm Shar’i
because it is the bases where we obtain the topic under discussion (Hukm Wad’i).
Hukm Shar’i is a communication from Allah the exalted through a demand option
or declaration. From the above definition, we can deduct that Hukm Shar’i has
three component parts as communication from Allah related to the acts of a
subjects.
a. Demand
b. Option
c. Declaration
There is no controversy among the jurists also on the fact that Allah is the law
giver. The controversy is only on what is the rule of law.
Al-hukm shar’i from the Usuli point of view is a command from Allah (the
lawgiver) requiring the subject giving him option to do on act.
We can see Surat Al-Ma’idah verse one where Allah Said :
“Oh you who believe, fulfill obligations”

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We can also see the following prophetic hadith where the prophet (SAW) said

The killer does not inherit 5

Al-hukm from the Faqih point of view is a rule that requires the subject to do an
act in form of Wajib, haram or mubah.
An example is where Allah says:
“Fulfill your obligations 6 this is wajib

Another example is where Allah (SAW) said: Do not go nearer to adultery7

The above verse showed the prohibition of going nearer to adultery.
From the above, it entails that Hukm Shar’i: consist of the following:
1. Hukm Shar’i is a communication from Allah which is treated as a
command. But it is to be noted that a communication from anyone else
cannot be considered as a Hukm, be he a ruler or a person in authority.
2. The communication gives a rise to rule that enables the jurists to
understand whether the requirement is for the commissioner or omission
of an act.
3. Hukm may be expressed through a demand for either commission or
omission.
4. Al-Hukm May grant a choice or option to the subject for ether commission
or omission of an act.
5. The commission may be expressed through a declaration. The
communication therefore declares that an act is the
a. Cause (Sabab)
b. Condition (Shart) or
c. Impediment (Mani) for the application of the Hukm.

For example as in the case of payment of Zakat, the cause is the possession of the
minimum amount (Nisab), having retain the wealth for a year is the condition for
the Hukm, and the existence of debts against the subject, give rise to impediment
or an obstacle in the way of fixing liability for Zakat.

HUKM TAKLIFI
It is equally important to briefly explain Hukm Taklifi before finally going to the
topic under discussion.
Hukm Taklifi is a rule that demand, prohibit or give option to the subject. Example
of

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1. Demand – Khuz min amwaalihim sadaqah

2. Prohibition - Laa yaskhar Qaumun an Qaumun
3. Option- Fa izhaa Qadhaitumussalaat fantashiruu

Meaning
This Hukm is called Taklifi because it brings about putting on a subject to act,
refrain from give him option. 11
HUKM AL-WAD’I UNDER ISLAMIC LAW (declaratory rules). Declaratory rules or
Wad’i is a rule that facilitate the operation or the obligation or explained the
relationship between the different obligatory rules 12
In other words, Hukm Wad’i does not create an obligation. It is just regarded as a
secondary rule. This gives the meaning of law in Shari’ah a wider dimension that
the simple definition of law by John Austin, as a “command”
As it has been stated earlier, that the declaratory rule facilitate the application
of the obligatory rules, it accordingly include three elements.
1. Cause of Hukm
2. Condition for Hukm
3. Obstacle to the Hukm
1. Causes or Sabab
Literally cause (sabab) can be said to be the means we can get to a particular
thing.
Technically however, it means what the law giver has determined to be the
identifier of a legal rule so that it’s experience of the rule, for example, unlawful
sexual intercourse is a cause for the obligation of implementing Hadd, while
Safah and insanity are the causes for interdiction. But when this causes are
missing, there is no obligation to impose Hadd or interdiction.
Sabab itself is sub-divided in to two according to the act of the subject.
A. The causes that is neither dependent of the act of the subject nor is it within
his power to bring about, yet when such a cause is found, the Hukm (rule) exist.
E.g. the rising or setting of the sun is the cause of the obligation of Morning Prayer
or evening prayer. The beginning of the month of Ramadan is a cause for the
obligation of fasting.
This is the cause that is dependent on within the power of the subject to bring
about, and such act may be required, prohibited or recommended.
E.g. the cause of setting a lawful journey is the permissibility of not fasting in the
month of Ramadan. The act of contracting murder is the cause of the obligation
of Qisas (retaliation). The act of contracting a marriage is a cause for the
permissibility of sexual intercourse.

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2. Condition (Shart)
Where the lawgiver declares that the set of fact must exist before the cause can
take effect and invoke the related Hukm (rule), the existence of such a set of fact
is called a condition (Shart).
In it’s technical sense, condition implies a necessary condition for a rule. Example
is the presence of witness or payment of dowry as a condition for marriage
contract. The existence of either dowry or witness however does not necessarily
mean that a marriage has taken place. Yet without either of the two or any of the
two a marriage will not be valid.
Consider or Shart is sub-divided into two according to the jurists viz:-
a. Shart Shar’i (Imposed by lawgiver) beginning of Ramadan
b. Shart Ja’ali (Imposed by the subject) committing murder
3. Obstacle (mani).
The obstacle or mani is a factor whose existence indicates the negation of Hukm
(rule) or it’s Sabab (Cause). Eg. Zakat/indebtedness,
A condition or set of fact may exist that prevent the Hukm (rule) from being
applied, even if the cause is found and the condition is met. In yet another
development, Abdulwahab Khallaf in his book of usual figh defined Hukm wad’i
as a rule that command an act as Sabab, Shart or Mani 13
He went further to buttress his view with so many Qur’anic verses on the three
rules he cited
a. Sabab, we can see Suratul Ma’ida verses 6 and 38.
“O you believe when you prepare for prayer, wash
your faces and your hand (and alms) to the
elbows…”14

“As to thief, male or female, cut off his or her hands: a

punishment by way of example from Allah, for their
crime: and Allah is exalted in power.”15

b. Shart, we can see verse 98 of Suratul Ali Imran.

“…pilgrimage thereto is a duty men owe to Allah
for those who can afford creatures.”(16)

c. Mani, here there is a Hadith of the prophet (SAW) that says that
there is no mirath (inheritance) for the killer

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Hukm wadi is further categorized in to:-

1. Sahih (valid)
2. Batil (null and void)
3. Fasid (vitiated)
4. Azimah (initial or general rule) and
5. Rukhsa (exceptions)
1. Sahih (VALID): An act that is obligatory, recommended or permissible
is required to be performed in a certain manner by the lawgiver, when
the act is performed properly, it is deemed as valid.
On the other hand, if the act is not done as commanded, that act will be
said to be null and void. For instance, the act of Siyam or fasting may
either be obligatory if it is during Ramadan period or permissible (if
done on any day not during the Ramadan). Siyam (fasting) has its rules
and conditions which if not followed, the act will be null and void e.g.
eating and drinking or having sexual intercourse.
1. Batil (Null and Void): things that are obligatory, recommended or
permissible and not done in a manner prescribed by observing the
elements, conditions and rules can be (null and void).
2. Fasid (Vitiated). An act that is obligatory, recommended or
permissible if performed with an offending condition or the cause
of irregularity is removed otherwise it stands. This classification is
added by the Hanafi School.
An example is a case of contract involving Riba (usury). According
to the Hanafis, the offending condition (i.e the riba) is to be
removed for the contract to be valid. To them, the contracting
parties have no option to remove such offending condition.
3. Azimah (initial or general rules):- this is a situation where the
lawgiver indicates initially as a general rule that a rule is to be
considered as an obligation. A good example is the prohibition of
wine drinking as a general rule. To some extent in case of necessity,
it may be allowed. Another example is the case of dead animal. The
Qur’an stated clearly the prohibition of eating the dead animal.
However, there is a Hadith of the prophet (P.B.U.H) that allowed
the eating of dead animal in case of necessary to a person who is
on journey and has no food to eat, he is allowed to eat and continue
eating up to the time when he reaches a place where he can get
food, that is permissible.

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4. Rukhsa (exception) Rukhsa as the name suggests means exception.

It goes hand in hand with Azimah, it is a situation though the
lawgiver indicates as initial rule to be considered as an obligation,
but it is followed by another rule that is an exception.
A good example is that, though wine drinking is prohibited as a
general rule as cited above under Azimah, it is followed by an
exception that in case of necessary one is allowed to drink.

It is further stated that classification of the secondary rules in to sabab, shart and
Mani is what the Usuli is concerned about.
On the other hand, classification into Sihha, Butlan and fasad (validity, Nullity and
vitiation) is more important for the Faqih because it pertains to the performance
of acts.
However, classifications into Azimah and Rukhsa (General rule and exception)
refers the Jurists to identify the general principles of the law and the exception to
the general principles. It is therefore, a tool for achieving analytical consistency.
Hukm wad’I or declaratory rule is called positional rule of law by professor
Abdulqadir in his book “The rules of law in the shariah” 17
He went further to state that the numerous types of acts of mikallaf demand that
the position rule of law, which is to guide them, should be numerous in kind. This
lead to some Jurists to divide the position rule of law into about (11) division
namely:-
• Al-sabab i.e. cause
• Al-shart i.e. condition
• Al-mani i.e. preventive
• Al-sihah i.e. correction
• Al-illah i.e. reason
• A-fasad i.e. incorrectness
• Al-rukhsa i.e. permission
• Al-azimah i.e. resolution
• Al-qada i.e. payment of an act as debt.
• Al-ada i.e. performance of an act in due time
• Al-I’ada i.e. repeats. 18

In yet another development, some Jurists united the division in to seven (7)
namely:-
• Al-sabab

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• Al-shart
• Al-mani
• Al-rukhsa
• Al-azimah
• Al-sihhah
• Al-butlan 19

CONCLUSION
While concluding this write up, it is important to draw a distinction between
Hukm Taklifi and Hukm wad’i.
➢ HUKM TAKLIFI: Requires the performance of an act from a mukallaf
prohibiting him or giving him option. Hukm wadi on the other hand is not
concern with the above three elements, but it borders on the fact that
doing a particular act is a condition for another thing to happen, or this act
prevent a particular rule to take effect. 20
In yet, another book, it described the differences between the two as
“under Taklifi” we have five (5) categories of rules:
- Obligation (Wajib)
- Recommended (Nadb)
- Prohibition (Haram)
- Disapproval (Karaha)
- Permission (Ibahah)

Hukm wadi on the other hand considers an act to be valid, invalid or vitiated
(voidable) 21
It was rightly observed by another author of Islamic Jurisprudence Nyazee who
looked at the difference between the two as follows:-
1. The aim of Hukm Taklifi is to create an obligation for the commission or
omission of an act or to grant a choice between the commission or
omission of act on the other hand, the Hukm Wad’i has no such aim. It’s
purpose is to either inform the subject that a certain things is a cause of,
condition for or obstacle to a Hukm or it is to explain the relationship that
exist between two rules or to provide the criterion for judging whether an
act performed is valid or void.
2. The act or event that is affected by the Hukm Taklifi is within the ability of
the subject with respect to it’s commission or omission, the act affected by
the Hukm Wad’i may not be within the ability of the subject with respect
to commission or omission.

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In other words it is always possible for the subject to commit or omit an act
affected by the Hukm Taklifi but it may not be possible for him to commit or omit
all acts that fall within the domain of the Hukm Wad’i .
Thus, theft is an act, the omission of which is required and it is possible for the
subject to avoid it, but the setting of the sun is the legal cause for the evening
prayer, and it is not possible for the subject to bring it about. Rushd (discretion)
is a necessary condition for contracts, but it is a condition that is beyond the
power of the subject to create.
Insanity is a defence against criminal liability, that is, it is an obstacle (Mani) for
the Hukm to take effect but it is beyond the power of the subject.
It is not to be assumed that the Hukm Taklifi and Hukm wad’i are always stated
in separate texts. It is possible for them to exist in the same text. For example, the
verse about theft states: The thief, male or female, cut off their hands”. Here, the
Hukm is the obligation to cut off the hand, the cause for it is sariqa (Theft) thus
both occur in the same text. 22

ENDNOTES AND REFERENCES

1. Qur’an 95: 8
2. Qur’an 36: 82
3. Sadr Al-Shariah al-Tadih, vol.1 p.28
4. Imran Ahsan khan Nyazee, Islamic Jurisprudence (2000) at p.47
5. Qur’an 5:1
6. Qur’an 17:32
7. Qur’an 9:103
8. Qur’an 49:11
9. Qur’an 62:10
10. Dr H.H Hassan, an introduction to the study of Islamic law(2007) Adam
Publishers Ganj, new Delhi 110002 India.
11. Al-sarakhsi S.A A.M.A, Usual al-sarakhsi ed-abu (1953) Al-Afghani, Cairo
vol. :2 p. 301.
12. Abdulwahab khallaf, Ilmu usulul fiqhu (2002) Islamic law lecturer, univ.
of al-qahira.
13. Qur’an 5:6
14. Qur’an 5:38
15. Qur’an3:98
16. Abdulkadir Zubair, the rule of law in the Shari’ah (1994) printed in 1995
by I.I.C publication Lagos.

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17. Al-Amidi, Al-Ihkam fi Usul-al ahkam (1968) M.A. Subayhi press Cairo vol.
I p.137.
18. Opcit kallaf at p. 127
19. Opcit kallaf at p. 18
20. Opcit H.H Hassan at or p-19
21. Opcit Nyazee at p-49
22. Nyazee at p-49 supra.

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