EXAMINING THE CONNOTATION OF THE WORD (الحاكم) LAWGIVER AND THE DILEMA OF MUSLIMS UNDER THE SHARI’AH
DOI:
https://doi.org/10.53704/5nrnaj25Keywords:
Hukm, Islamic Law, Lawgiver, Mukallaf, Hassan and QabihAbstract
Shari’ah (also known and referred to as Islamic Law) contains rules of all past events, current problems and all possible incidents that may happen in future. Nothing has happened in the past or is happening at present or will happen in the future except that each and every one of those things has a ruling from the Islamic law either directly or indirectly. Every conduct of a man at all time and places are completely and comprehensively taken care of by the Islamic law. Allah (SWT) refers to those who approach or judge their affairs with any other law[s] other than the provisions of Islamic law (the Quran & the Sunnah) as disbelievers (the Kâfirûn), polytheists, wrong-doers (the Zâlimûn) and disobedient (the Fâsiqûn). Hence, the dilemma of Muslims living in non-Islamic state or Muslims’ State like Nigeria where the applicable Laws were said to be made and given to themselves. This paper adopts the doctrinal method of research to examine the lawgiver/legislator in Islamic law as it relates to the Muslims therein and several views of Muslim jurists on whether or not the intellect could discern and identify the hukm of Allah regarding the conducts of the Mukallaf (مكلّف) based on what is good (hasan) حسنor evil (qabih) قبيحwithout the intervention of divine revelation. The paper also examines the status of a man-made law as well as the maker, in both Islamic and Non-Islamic States. This paper finds that though a Muslim may find himself in a non-Islamic state, however, that does not leave him at the freelage of perpetrating evil. The study lastly recommends guides for Muslims’ conducts in a non-Islamic State
References
Az-Zuhayliy Wahabah, ‘Usul Al-Fiqh Al-Isalmiy’ (Dar Al-Fikr, Damascus, 2007) Vol. 1, pgs. 43-44. Also, Khalaf Abdulwahab, ‘Uloom Usul al-Fiqh’ (Dar al-Hadith, Cairo, 2003) pg. 111
The Islamic law/rule
The Subject obligated to observe the precepts of religion.
M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 296 available online @ www.google.com/m?q=principle+islamic+jurisprudence+by+m+hkamali&client=ms accessed on 1/10/2024
Ibid.
Az-Zuhayliy Wahabah, ‘Usul Al-Fiqh Al-Isalmiy’. Vol. 1. Pg. 44.
The Lawgiver
The acts of which the hukmu operates
Az-Zuhayliy Wahabah, ‘Usul Al-Fiqh Al-Isalmiy’pg43-44 also, Khan Nyazee I. A., ‘Islamic Jurisprudence (Usul al-Fiqh) (The International Institute of Islamic Thought, Islamabad, 1st ed. 2000) pgs. 46-47 and Abu Zahrah M. ‘Usul al-Fiqh,’ pg. 25
Az-Zuhayliy Wahabah, ‘Usul Al-Fiqh Al-Isalmiy’pg. 44.
Khan Nyazee I. A., ‘Islamic Jurisprudence (Usul al-Fiqh) pg. 79 and Wehr H., Dictionary of Modern Written Arabic, J. M. Cowan (ed.) (New Delhi, N.D) p.197
The Exalted
Independent judgment in legal or theological question, based on interpretation of Quran and Sunnah.
Subhanahu wata’la means: the Exalted
Salla’llahu alayhi wasalam meaning: May the peace and blessing of Allah be upon Him
M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 296.
Al An’am; 6:57
Yusuf ‘Ali A. ‘The Meaning of the Holy Qur’an’ (amana Publications Maryland, USA, New ed., 1998) pg. 308.
Khan Nyazee I. A., ‘Islamic Jurisprudence (Usul al-Fiqh). Pg.79 and M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 296.
M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 296
Al-Mawardiy H. ‘Al-Ahkam As-Sultaniyah’ (Dar Al-Hadith, Cairo, 2006) pg. 15-16
Az-Zuhayliy Wahabah, ‘Usul Al-Fiqh Al-Isalmiy’pg120 also, Abu Zahrah M. ‘Usul al-Fiqh,’ pg. 70; Khalaf Abdulwahab, ‘Uloom Usul al-Fiqh’ pg. 112; M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 29.
Az-Zuhayliy Wahabah, ‘Usul Al-Fiqh Al-Isalmiy’pg119-124 also, Abu Zahrah M. ‘Usul al-Fiqh,’ pg. 70-73; Khalaf Abdulwahab, ‘Uloom Usul al-Fiqh’ pg. 112-114; M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 297-299.
Khalaf Abdulwahab, ‘Uloom Usul al-Fiqh’ pg.112
Ibid. pg. 112, M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 297
Khalaf Abdulwahab, ‘Uloom Usul al-Fiqh’ pg.112 and M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 297
M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 297
ibid
Those who live after the death of a Prophet and before the arrival of another Prophet.
Khalaf Abdulwahab, ‘Uloom Usul al-Fiqh’ pg.113
Surah al-Isra`: 15
M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 298
Khalaf Abdulwahab, ‘Uloom Usul al-Fiqh’ pg.113
According to the Jeremy Betham utilitarian point of view is that the purport of a thing is to prevent some evil or procure some good; hence, the ultimate goal of legislation is, to him the greatest happiness of the greatest number. See for detail; Adaramola F. ‘Adaramola Jurisprudent’ (Lexis Nexis Butterworths, Durban, 4th ed. 2008) pg. 30
Abu Zahrah M. ‘Usul al-Fiqh,’ pg. 72 and M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 298
Ibid.
Abu Zahrah M. ‘Usul al-Fiqh,’ pg. 70-71 and M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 298
Ibid.
Khalaf Abdulwahab, ‘Uloom Usul al-Fiqh’ pg.114
Abu Zahrah M. ‘Usul al-Fiqh,’ pg. 72-73
Abu Zahrah M. ‘Usul al-Fiqh,’ pg. 72-73 and Khalaf Abdulwahab, ‘Uloom Usul al-Fiqh’ pg.114
Hornby A. S., ‘Oxford Advanced Learner’s Dictionary of Current English’ (Oxford University Press, Eight ed. 2010) pg. 970
For example: Allah commands the mankind to offer Salat in the Quran but does not render the details of how to pray it, what time, how many rakat and how many time a day except for practice of the Prophet (SAW)
Az-Zuhayliy Wahabah, ‘Usul Al-Fiqh Al-Isalmiy’pgs. 136-137
Zubair A., ‘The major Sources of Islamic Law’ (Al-Madinah Heritage Publications, Lagos, 2005) pg. 1
Allah says: “Nor does He (the Prophet [Sala’llahu alayhi wasalam]) say (aught) of (His own) desire.” Q53:3
In the process of explaining and practicalising this, the Prophet [Sala’llahu alayhi wasalam] says: “establish your salat in the way and manner I establish mine” see Sahih Bukhari for detail.
Fatir: 24
Surah An-Najm: 3
This because, the ruler and the ruled are muslims who have their affairs in line with the tenets of Islamic principle.
Az-Zuhayliy Wahabah, ‘Usul Al-Fiqh Al-Isalmiy’ pg.
Allah say:”O ye who believe! Obey Allah, and obey the Messanger, and those charged with authority among you” Q.5:59
Al-Maidah: 44, 45 & 47
Khan Nyazee I. A., ‘Islamic Jurisprudence (Usul al-Fiqh). Pg. 83
Qualified person to give independent judgment in legal or theological question, based on interpretation.
See the illustration in Reinhart K. A. ‘Islamic Law as Islamic Ethics’ (Journal of Religious Ethics, Vol.II, No. 2, 1983) pg 191-192
It does not matter even if the overwhelming majority are Muslims in as much as the rulers are non-Muslims or the rulers are Muslims but do not accept Shariah as the governing law.
It must be said that most constitutions of non-Islamic states were either as the result of an agreement among a group of non-Muslims about how to distribute a political rights and power within a non-Muslim polity or imported/adopted from form a state by another on the basis of colonization with little or some fine-tune
See Preamble of the Constitution of the Federal Republic of Nigeria, 1999, (as Amended); see a similar provision in the Preamble of the United States Constitution which provides viz: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” available online @ www.constitutionus.com accessed on 6/1/2018;
See Section 42 of the Constitution of the Federal Republic of Nigeria, 1999, (as Amended)
See the First Amendment under Article 1 of the United States Constitution; see also similar provision in Section 38 of the Constitution of the Federal Republic of Nigeria, 1999, (as Amended);
Jackson S. A., ‘Muslims, Islamic Law and Public Policy in the United States’, pgs. 22-23 available online @ www.ispi-usa.org/policy/policy4.html, accessed on 1/10/2024
This was why the Prophet [Sala’llahu alayhi wasalam] honoured and recognized the Treaty of Hudaybiyyah made by Quraysh despite the provisions stipulated (that Muslims who leave Mecca to join the Prophet [Sala’llahu alayhi wasalam] at Madinah must be sent back to Mecca) therein were not all in favour of the Muslims Ummah.
Jackson S. A., ‘Muslims, Islamic Law and Public Policy in the United States’, pgs. 26
An-Nisa: 59
See Sections 262 and 277 of the 1999 Constitution of the Federal Republic of Nigeria (as Amended)
Like keeping all the commandments of Allah and staying away from all the forbidden.
An-Nisa: 59
Available online @ www.en.islamtoday.net/node/604 accessed on 4/1/2014
Available online in Arabic language @ www.binbayyah.net/portal/sites/default/files/the%2520diffrent%2520bettween%2520aldarorah%2520and%2520alajah.pdf English Translation quoted by in Mohamad Abdalla,‘Islamic Australia? What place is there for sacred law in a secular land?’ available online @ www.abc.net.au/religion/articles/2013/05/10/3756163.htm accssed on 4/1/2014
Abu Ismael, ‘Who is al-Hakim (The Legislator)?’ available online @www.hizb-australia.org/culture/usul-fiqh/item/454-who-is-al-hakim-the-legislator accessed on 3/1/2024. I must add at this juncture that the menace of the same sex marriage has spread its tentacle across the world; Nigeria inclusive see for detail: www.lavaplace.com/Personals/Nigeria/ng/18/ accessed on 5/1/2024
M. H. Kamali, ‘Principles of Islamic Jurisprudence’ pg. 298
Downloads
Published
Issue
Section
License
Copyright (c) 2025 Abdulrazaak O. Zakariya
This work is licensed under a Creative Commons Attribution 4.0 International License.
