The Code of

Scholars
Usul Al-Fiqh

Taught By Shaykh Yaser
Birjas




Table of Contents
Introduction .. 1
Part One: Understanding Usool Al-Fiqh . 3
Breaking Down the Study of Usool Al-Fiqh ... 5
Welcome to Usool Al-Fiqh .. 10
Fiqh vs. Usool Al-Fiqh . 14
Where do these Usool Al-Fiqh Principles Come From? .. 20
History of Usool Al-Fiqh .. 23
Two Classical Approcahes. 26
Part Two: Al-Hukm Sharee (The Islaamic Rule) 31
Chapter One: The Anatomy of an Islamic Rule/Law 33
Chapter Two: First: Al-Hukm At-Takleefee . 45
Chapter Three: Usool Principles Related to Hukm At-Takleefee . 72
Chapter Four Second: Al-Hukm Al-Wadee . 85
Chapter Five: Takleef (Accountability) . 90
Part Three: The Sources of Islamic Law 101
Chapter One: Identifying the Sources of Shariah . 103
Chapter Two: Sources about which there is Unanimous Agreement: The Quran 108
Chapter Three: Sources about which there is Unanimous Disagreement: The Sunnah . 129
Chapter Four: Sources about which there is General Agreement .. 133
Chapter Five: Sources about which there is General Disagreement .. 136




1

Introduction

Why study Usool-ul-Fiqh?
1,100 years ago in Baghdad during the golden age, outside a bread bakery, there stood a
man whom we now know as Imam Al-Quradawi. Having come to Baghdad 10 years prior in the
search of knowledge, he was on this day preparing to go back home to teach the people and meet
his old friends and relatives. He had studied Hadeeth primarily for 10 years, along with other
knowledge. In anticipation of his journey home, he was at the bakery to pick up some bread
when he overheard a conversation between two bakers. What he heard shocked and amazed
him. The subject under discussion was the opinion of Ibn Abbas regarding Istithna fil
Yameen Istithna. This was the opinion that saying Inshaa-Allah can relieve a person of having
to fulfill their vow and make their vow an option. Ibn Abbas allowed this option for up to
one year. In other words, one would then not have to pay the Kaffaaratul-Yameen for breaking a
vow if they followed this opinion.
One of the two bakers was voicing his disagreement with this opinion and was giving
evidences to support his argument. Imam Al-Quradawi couldnt believe that even a baker of
Baghdad had knowledge of this intricate issue of Fiqh. He then exclaimed, By Allah, I am not
leaving anymore. He remained in Baghdad for the rest of his life, unwilling to walk away from
all this knowledge. Al-Khateeb al-Baghdadi included him in his book, Tareeqatul Ulamaa, and
noted that he died in Baghdad after going there to seek knowledge.
The success and glory that Baghdad enjoyed at the time was due to the prevalence of
knowledge in all of its citizens. This knowledge present was that of Islaamic Fiqh or As-
Shareeah. The knowledge of Fiqh is translated as law and the greatness of cities is judged by
how well the law is known and respected by its citizens. The common knowledge of law was
there with Usool, Fiqh and Shareeah was already there in the old Islaamic civilizations.
In contemporary times, every year, Ramadan becomes a source of contention, a conflict
brought on by disagreements surrounding Moon Sighting and Taraawih. It doesnt matter
whether you are in America, China or Saudi Arabia. Many new faces are seen in the Masaajid
and suddenly everyone becomes a Mufti (Legal Scholar of Islam) willing to start passing their
own Fatawaa which only makes the situation worse.
Ramadan, however, is not the only time of dispute for questions regarding different rulings
that arise on a daily basis. Is having a Beard Sunnah or FarD? It seems you can do from Sunnah
to Kufr on issues like the beard. There are different opinions but which opinion is to be

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followed? The answer to this question is called Fiqh. However, in order to determine if this
ruling of Fiqh is correct or not, one must examine the infrastructure that produced this ruling.
That is called Usool Al-Fiqh and the purpose of it is to determine whether our Fiqh is correct or
incorrect.
Is the knowledge of Usool-ul-Fiqh mandatory to gain? Yes it is. Can a person issue Fatawaa
after studying this class of Usool-ul-Fiqh? Absolutely not. In fact, not even 10 classes like this
one will give you the right to give Fatawaa. In fact, this knowledge or any other knowledge
should not be the cause for one to be arrogant for Sufyaan Ath-Thawree said: There are 3 spans
of knowledge. Whoever reaches only the first span becomes arrogant. Whoever reaches the
second span learns to become more humble. Whoever reaches the third span realizes he has no
knowledge yet.
When the scholar Shaikh ibn Uthaimeen (rahimahullah) was over-praised in his presence,
he would stop those responsible. In a similar instance Shaikh Albani (rahimahullah) was over-
praised and when it was his turn to speak, he was already in tears saying, Wallahi, we are just
young students of knowledge. The knowledge of these scholars had reached the third span as
mentioned by Sufyaan Ath-Thawree and thus they were humbled by it. Even those qualified to
give Fatawaa escape from doing so and we want to take that responsibility.
When you learn more, you speak less. In Madinah University, you always knew the
freshmen from the seniors. Many loved to talk and give discussions and they were the freshmen.
The new ones would talk a lot while the graduates were known by their silence. This is what
knowledge does. It helps you to not shape opinions and not to give answers. We need to
understand knowledge, respect the Ulema and use this knowledge in the critical circumstances
of our life. This class will help you do that and it will make you change the way you look at
things. This class will help one to understand the details of the Fatawaa and how they were
derived from the sources and that, in turn, will increase the appreciation for knowledge.

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Part One:
Understanding
Usool Al-Fiqh


5

Breaking Down the Study of Usool Al-Fiqh

History of Islamic Law The Legal science which studies the historical factors behind the
formulation of Fiqh (Islamic Law), its source (the Shariah), the
emergence of Fuqaha (Jurists) and the development of the various
Madhabs (Schools of Thought) and their Usool afterwards, starting
with the beginning of the revelation-throughout the different eras-
until today.
In other words:
1. The History of Formation.
2. Who formed it.
3. The Major Events that shaped Usool Al-Fiqh.
Example The historical factors behind the formulation of the two primary
schools of Usool: Al-Mutakallimeen and Al-Fuqahaa.
Rule of Islamic Law (Values of
Islamic law)
The study of the Hukum Sharee (The command of Allah) and its
various values and related principles:
1. Hukm Takleefee (constituting a demand or an option)
The Five major division or categorizations:
Fard/Waajib
Mustahab/Mandoob
Mubah/Halal
Makrooh
Haram

2. Hukum Wadee (constituting an enactment)
Example 1. Hukum Takleefee : Waajib and Haram.


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2. Hukum Wadee : Sabab and Shart.
Sources of Islamic Law The study of the sources of legislation and enactment of Islamic Law
and principal proofs of the Hukum Sharee, both the sources agreed
upon by the majority of Muslim jurists and not agreed upon.
Example Sources about which there is agreement: The Quraan,
Sunnah, Ijmaa and Qiyas.
Sources about which there is disagreement: statement of the
companion and IstiHsaan-juristic preference.
Dalalat ul-Alfaadh (Textual
Implications)
The study of the implications of the legal texts, language codes and
the methodology and rules of interpretation.
How does one recognize what Hukm (command) is being given in an
ayah? What particular word or words constitute that Hukm? Is it
Waajib? How do you know? When is it to be done? Now or
Whenever?
In order to understand this, a basic knowledge of Arabic language is
required.
Example Words used for a specific inclusion of exclusion such as Al-Mutlaq
(the Absolute) and Al-Muqayyad (the Qualified) the methodology
practiced to determine such texts and reconciling between them.
Ijtihaad and Taqleed (Personal
Reasoning and Uncritical
Following-of the legitimate
scholarship)
The study of the two methods Muslim Jurists follow in the process of
legislation and enactment of the law and issuing the legal verdict
Fatwa.
A third approach called Ittiba has been developed over time, which
is to follow the strongest opinion by understanding the evidences
personally.


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Example Rules and regulations of Ijtihaad and Taqleed, the conditions of
the benefactor both the Mujtahid and Muqallid (layman).
The etiquette of Fatwa (issuing the legal verdict) and the mufti
who is the authority of such a verdict.
Al-Qawaaed Al-Fiqhiyyah The study of the maxims governing the Islamic Law. Maxims of
Islamic Law refer to a body of abstracts, rules which are derived from
the detailed study of Fiqh itself. A legal code under which many
Hukum Faree rules from various areas of the law are systematically
arranged.
They range from 120-400 according to different opinions of the
scholars. They are the maxims that govern Islamic law. A single
statement in the Quran or Sunnah might not be a rule in itself but a
principle that governs hundreds of other rules.
Example Certainty is not removed because of mere doubt, is one of five
absolute maxims under which many other secondary maxims are
arranged.
In purification: One who is certain about his/her wuDoo and
doubtful about the nullification of the wuDoo is considered in a
state of purification.
In business transactions: One who admits the reception of a debt
and doubts the payment (has no proof) is considered liable until
he/she provides a proof that suggests otherwise.


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Maqasid Ash-Shariah The study of the intents and higher objectives of Shariah and Islamic
Law. The general and specific purpose behind the enactment of a
particular rule or value in different areas into Islamic Law.
The study of the essential human values be it a necessity, a need or an
accessory.
Why does Shariah make something waajib or haram? This is the
study of the intent of the Shariah. The Shariah intends 5 major
objectives and everything revolves around that. This is the highest
field of Usool-al-Fiqh and Imaam As-Shaatibi, who lived 600 to 700
years ago, was a master in this field.
Example Preserving life, progeny and wealth.

The religion of Islam began with the word Iqraa(read) and the concept of knowledge in the
religion of Islam is unique. Due to these reasons, even though the Prophethood of RasulAllaah
covered a span of only 23 years, millions of books have been written since then and
millions of books continue to be written to this day. Some books written on the subject of Usool
al-Fiqh include Ethics of Disagreement, by Tahar Jab ul-Alwani and Ikhtilaaf ul-Fuqaaha,
by Imam at-Tabari. As for the maxims of Usool al-Fiqh, no books have been written on the
subject itself because they probably would not sell that well.
Knowledge has been important to Muslims from the beginning and they have made explicit
efforts to preserve knowledge throughout history. Some examples from history include:
1. 'Abu Bakr : Compilation of the Quran.
2. 'Ali : Development of the system of archives
3. Caliph Mamoon ('Abbasids/Umayyads): Translation of books from other cultures.
4. After they finished taking in all of this knowledge, they decided to add to it and started
including secular fields such as Philosophy and Metaphysics.



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Welcome to Usool Al-Fiqh
Definition Usool Al-Fiqh (as a genitive construction) is defined by its two components:
In this construction, the first word must be a part of the second not vice
versa. Thus this Usool is a part of fiqh meaning it is about fiqh and not usool
about something else.
Usool (a plural of Asl):
The proof, the foundation, that which is preferable (Al-Rajih), the
continuous rule and the original case in rules of Qiyas.
Linguistically: Principle, Proof, Foundation, the Preferable
Figuratively: Continuous rule, When you come to the masjid and are
unsure whether you have still have WuDoo or not, the asl is the
continuation of WuDoo. The doubt is about the breaking of
WuDoo. For us we take the figurative, technical definition for this
class.
Al-Fiqh:
Linguistically: the understanding for what is intended.
Technically: the knowledge of the practical rules of Shariah acquired
from the detailed evidences in the sources of Shariah.
The one who understands is a Faqih which comes from the same root as
Fiqh. The practical rules are not related to matters of Aqeedah. They are
acquired from the detail evidence from the source of Shariah (these are the
words). Fiqh is the knowledge of practical rules. (i.e. knowing 2.5 percent
for Zakah, Riba is haram and Zina is haram). Usool are the principles of


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these rules of Fiqh.
Usool Al-Fiqh (as a term made up of both words):
The sciences of knowing what the sources of Fiqh are, how to use those
sources, and the circumstances of the benefactor (i.e. the Mujtahid or the
layman).
This science is an independent discipline. For example, with the ruling of
fasting in Ramadan, the ruling that it is Waajib is Fiqh. How we arrived at
this ruling is Usool Al-Fiqh.
What are the rules? The rules cover the sources and conditions of the
characteristics of Usool al-Fiqh.
Example 1
l . l . l ! . 1 ` . > / _
,> > s < | < !, l-. ,.,
And Establish the Salah and give the Zakah!
{Surat Al BaQarah:110}
This is a specific verse from the Quran. We learn from this verse that we
must establish Salah and we must give Zakah. How did we come to that
conclusion?
The order: Establish the Salah!
(imperative verb=demand and entails an action), as a principle, in Usool al-


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Fiqh
The Usool Al-Fiqh principle: If Allah commands us to do something, the
default is that it is compulsory for us to do it.
Thus: Establish the Salah is Compulsory (FarD).
Example 2 The Order: Give Zakah!
The Usool Al-Fiqh principle: If Allah commands us to do something, the
default is that it is compulsory for us to do it.
Thus: Giving Zakah is Compulsory (FarD).
The tiny details are not here but the default rule is that its an order. How we
recognize the words of command is coming laterTashbeeh. Shariah
includes all these divine rules of daily life.
Subject

The legal proofs which lead to the deduction of rules of Fiqh. What exactly
are you studying? Proofs and their purpose
(We need Usool Al-Fiqh to help filter all the sources and see the practical
importance of Shariah and objective [Ijtihaad and Taqleed]).
Purpose To deduce the rules of Fiqh from indications that are provided in the sources
of Islamic Law and to help the jurist obtain an adequate knowledge of the
sources of Islamic Law and of the methods of juristic deduction and
inference.
Objective To regulate Ijtihaad and guide jurists in their effort at deducing the law from
its sources.
However, the objective is not to give Fatwa for the purposes of this class.


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The need for
Usool Al-Fiqh
It became apparent when unqualified persons attempted to carry out Ijtihaad
and the risk of error and confusion in the development of Shariah became a
source of anxiety for Muslim scholars.
Ibn Khaldun says: The early generations didnt need Usool Al-Fiqh
because Arabic was their language and they understood everything in its full
meaning. Later on, the influx of many Non-Arabs into Islam required the
development of Usool Al-Fiqh as a science.
The Ruling of
Usool Al-Fiqh
FarD Kifaya: obligatory upon the community except for the Mujtahid and
Muslim jurist where it becames FarD Ayn (personally obligatory).
If one group of individuals among the Ummah dedicates their lives to study
the subject, then it is enough.

Other Usool Al-Fiqh principles include (among others):
If Allah forbids us from something, the default is that it is forbidden (i.e. Haraam) to do
that action.
The Prophets actions are proofs for Islamic Law.
But to what extent? His personal preferences are excluded.
If a statement was made and no scholars comment on it, that statement does not carry
the strength of Ijmaa (consensus).
All of the scholars must explicitly comment, approving it.


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Fiqh vs. Usool Al-Fiqh
Fiqh teaches us:
About what is halal and haram, the outcome of
everything (deals with the actions of you and I)
Fiqh is the practical part.
Usool Al-Fiqh teaches us:
About Principles, where Islamic rulings come
from, the explanation of the conclusion. Usool
Al-Fiqh is the theoretical part.
It is only Fard to pray if one is sane and has
reached the age of puberty.
What does Haram mean? What is Mustahab,
etc. Usool Al-Fiqh deals with the principles and
definition of how, what and where.
If someone talks in Salah it breaks their Salah. Explanation of what breaks the Salah and why.
How to derive a ruling from an Islamically
acceptable source mainly Quraan and Sunnah
(also how do we understand some
commandments as being Sunnah as opposed to
being Fard). The evidences must be provided as
a proof for something to be Halal and Haram.
Usool Al-Fiqh is the connection between the
source and outcome.
It is Haraam to eat Pork. Which humans are authorized to issue legal
verdicts and deduce rules of Islamic law from
the sources of Islamic Law (what are the
conditions of a Mujtahid and what should he do
when sources of legislation apparently
contradict).
Sources like dreams and personal opinions are
not acceptable.
Gaving Zakah is FarD. What can be used as proof for a fatwa (i.e. a
Mufti can use the Quran, or a Mufti cannot use
todays horoscope).
If someone passes wind it breaks their wuDoo'. How to reconcile between two different
evidences when they appear to contradict each
other. At-Tawfeeq bainal Khulafaat (more than
one source to reconcile-room crossing).



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: : :
: :
Narrated Abu Ayyub from Juwairiya bint Al-
Harith:
The Prophet visited her (Juwairiya) on a
Friday and she was fasting. He asked her,
"Did you fast yesterday?" She said, "No." He
said, "Do you intend to fast tomorrow?" She
said, "No." He said, "Then break your fast."
(Through another series of narrators, Abu
Ayyub is reported to have said, "He ordered her
and she broke her fast.") [Sahih Bukhari]
So the Ulema have a process to reconcile proofs
which may SEEM contradicting. They go
through a series of steps here in the case of
seemingly contradicting evidences.
(Ex. whether you can fast Saturday or not.)
1) They will reconcile between the evidences if
differences are not clear.
2) They will drop both evidences for a third, if
possible.
3) They may be selective with one.


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It is only FarD to pray if the time for Salah has
arrived.
How to interpret different language codes.
Usool Al-Fiqh explains the technicalities and
rules of Fiqh both general and specialized
statements.
: -

( (
:
:
.

Narrated Ibn Umar:
On the day of Al-Ahzab (i.e. Clans) the
Prophet said, "None of you Muslims should
offer the `Asr prayer but at Banu Quraiza`s
place." The `Asr prayer became due for some
of them on the way. Some of those said, "We
will not offer it till we reach it, the place of
Banu Quraiza," while some others said, "No,
we will pray at this spot, for the Prophet did
not mean that for us." Later on it was
mentioned to the Prophet and he did not berate
any of the two groups.
[Sahih Bukhari]



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Some of the companions understood the
command in a literal sense and prayed later.
Others interpreted it figuratively, thinking the
intent was to motivate them to hurry to their
destination.
There can only be one correct opinion.
However, they both performed their Ijtihaad
and since their methodology was correct, they
will get reward for it. That is why those who
have the correct Ijtihaad get double reward, first
for the process and then for the outcome. If the
outcome is wrong they still get reward for their
methodology.
Ibn Uthaymeen is of the opinion that those who
prayed on time had the correct opinion because
they were able to rush as well. Thus they were
able to obey Rasul and were also able to
make Salah on time. We do not say that the
SaHaba made a mistake but rather we say that
they made Ijtihaad.


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It is FarD (compulsory) to pray 5 times a day. How to deduce a ruling for a new case based on
a ruling of an original case mentioned in the
sources of Islamic Law.
For example today we have new drugs. When
you tell someone it is Haram, they ask for proof
from Quran and Sunnah. It is not specifically
mentioned but we have Ijtihaad in Usool Al-
Fiqh which is the solution for this. Within it is
Qiyaas (Analogical thinking) In Qiyaas, we
have an old case that shares a common cause
with a new case. If the two cases match in their
cause or 'Illah, the same ruling is applied to the
new case as was applied to the old case.
Ex: In the case of cocaine, it is similar to liquor
which causes intoxication. So cocaine takes the
same ruling as liquor of being forbidden.
For cigarettes, the earlier scholars called it
makrooh because it had a foul smell. This old
ruling can be found in Hashiyat Ibn Abideen, a
popular early Hanafi text. Now we know that
smoking has other effects which are very
harmful to your health. Thus the ruling of
Ijtihaad has to change. The 'illah for the first
ruling was only due to its smell. So today
Ulema say that because it is harmful to the
body, it is Haram due to Allah saying
that he has made lawful for you that which is
good and unlawful for you that which is bad.
But how did our scholars come to these Fiqh conclusions? They had to use the tools taught by
Usool Al-Fiqh (the methodology of deriving Fiqh). When we study Usool al-Fiqh, the outcome is
to arrive at the rulings of Halal, Haram, Mustahab etc. Once you start applying the mental
methodology this is the process of Fiqh. For example, the Hijaab is first told from the Shari'ah
perspective with it's Hukm as FarD and then we can go in to its secondary benefits of modesty
and decency.


In Summary:
Fiqh deals with the actions of you and I, it is the part directed to the action.
Usool Al-Fiqh deals with where Islamic rules come from. Methodology (what are the
sources)?



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On an end note in this section, the word Usooli means "Fundamentalist." This word has a
negative connotation today but we should be proud of it. In the topic we are currently studying, it
means "legal theorist." It means that you are a person who relies on the fundamentals of the faith
and it has taken the picture of Fiqh us-Sunnah and Evolution of Fiqh, as well.
Question: Which came first, Fiqh or Usool Al-Fiqh?
Allahu 'alam. The answer is just like a chicken and the egg. It works either way. In theory and
process of revelation, we can say Usool came first with automatic processing of it in the heads of
the early generations like the Companions. However, when it comes to the development in
writing as a science, Fiqh came first. Imaam As-Shafi'ee's book on Usool al Fiqh came after the
'Ulema has already derived Fiqh rulings from the Qur'aan and the Sunnah.


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Where do principals of Usool Al Fiqh come
from?
Just like specific Fiqh rulings (like praying 5 times a day) need proof, such is the case with the
principles of Fiqh. Here we will look at where principles/codes come from?

Example: There is an Usool Al-Fiqh principal that states, There
can be no commandment upon a person which is more then what
that person is capable of.
One: From the Qur'an
This is derived from the verse:
` > l < . ! | ` ` - ! l ! ! . , s l , ! !
,.. !, !>. | !. !!L> !,
`>. !ls .| ! .l> ls _%! _
!l, !, !l>. ! !L !l ., s !s
s !l !> !9l !.! ls 1l
_l
Allah does not charge a soul except [with that within] its capacity.
It will have [the consequence of] what [good] it has gained, and it
will bear [the consequence of] what [evil] it has earned. "Our Lord,
do not impose blame upon us if we have forgotten or erred. Our Lord,
and lay not upon us a burden like that which You laid upon those


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before us. Our Lord, and burden us not with that which we have no
ability to bear. And pardon us; and forgive us; and have mercy upon
us. You are our protector, so give us victory over the disbelieving
people.
{Surat Al-BaQarah:286}
Example: There is a Usool Al-Fiqh principal that states, If we are
commanded to do something, the default ruling is that is it
compulsory for us to do it. A command becomes mandatory.
Two: From the Sunnah
This is derived from the statement of the Prophet :


Narrated Abu Huraira:
Allah's Apostle said, "If I had not found it hard for my followers
or the people, I would have ordered them to clean their teeth with
siwak for every prayer."
[Sahih Bukhari]
If the RasulAllah commanded it, it would have become
Waajib for us to follow this. Thus a command becomes obligatory
unless there is an indication to suggest otherwise. Scholars
understood from this hadeeth that the Prophet did not
command the Ummah to use the siwak or otherwise it would have
been obligatory to do so.
Three: From the Arabic
language
Example: There is a Usool Al-Fiqh principal that states, If a
command is given, it requires that the person do it immediately. In
the Arabic language a command requires immediate action just like
in English and many other languages.


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This is derived from the science of the language, something that
linguists understand. For example, theyll say, if a Master tells his
servant, Get me water, the servant would be blameworthy if he
delayed in bringing the water. Quran and sunnah came in Arabic
and the rules of Arabic Language are used. The command is coming
from the language and requires an immediate action.
Example: There is a Usool Al-Fiqh principal that states, If two
Mujtahids disagree on a specific ruling then one of them is wrong.
If two opinions contradict each other, one has to be correct.
Four: From Logic:
Logic recently has been used
as an independent source
within the Arabs. But they
became this way after their
exposure to other cultures like
the Persians and the East. The
'Ulema, themselves, were
hesitant against using too
much logic.
This is derived from pure logic. If two people make two opposing
opinions, one says apples and the other says oranges, then logically
one of them is wrong.
This is when we use logic to see which one is dropped. Again this
requires Ijtihaad. Logic that has some support from the Quran and
Sunnah can be used. Logic is NOT used in everything. Every ruling
has some reasoning (rational); but ultimately it is to obey
Allah. First we go to the Quraan and Sunnah, submit and
then use our rational. If everything in Islam were based on logic, we
would have all gone astray. If you go after every rationale/ruling,
you will deviate from Islam, according to Shaykh ul Islam ibn
Taymiyyah. Muslims always start off answering the questions of
why things are Halal and Haram by saying because Allaah has said
such. He knows what is best for His Creation. Allaah is the
Most Wise.


Side Note: Every Usooli must be a Faqeeh but not every Faqeeh must be an Usooli.





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History of Usool al Fiqh
Most of our sources come from the Quran and Sunnah. We get everything even the issue of
Ijtihaad, from Rasool . Overall the whole principle of Usool al-Fiqh came from the time
of Rasool . However, Usool Al-Fiqh came later as a written and developed science.

Era of the Prophethood No need for methodology because solutions to problems were obtained
through either divine revelation or the Messengers direct ruling. Many
Usool principles were founded and obviously practiced by the Messenger
of Allah and therefore laid the foundation down for this science.
Even though the science came much later, the seeds of the science came
with the first revelation which was "IQRA."
Examples Encouraging Ijtihaad of the SaHabah:
If the Hakim (ruler, Mufti) exerts an Ijtihaad and appeared to be right
he will get double reward and if the Hakim exerts an Ijtihaad and
appeared to be wrong he will get one reward.
[Bukhari and Muslim]
The usage of Qiyas in comparing a kiss during the day of Ramadan to
rinsing ones mouth as both dont break the fast.
Our faith is not blind faith; it is based on knowledge. This is why Allah
tells us in Surat al-Muhammad, "Know that there is no God but Allah." In
addition, this is why RasulAllah also encouraged Ijtihaad or
personal decision-making.
Era of the Companions Definition of a SaHabi: any man, woman or child who reached the age of
recognition, lived during the life of Rasul , saw/met the RasulAllah
at least once, believed in him and died in the state of Islam. They
also have no intermission of apostasy in between any of these stages.
They remained in close contact with the teachings of the Messenger
of Allah as a source of law. The saHaba really didnt need
usool Al-Fiqh so much because they spoke the original language.


23

Their decisions were mainly inspired by the Messengers precedent
(case precedent).
They exercised Ijtihaad and Qiyas widely to answer for the many
unprecedented events. This happened a lot during the time of Umar
. So many new cases came to Muslim states and the jurists
had to use Ijtihaad extensively.
The principle of Ijmaa was developed.
Establishment of Ijmaa', during the time of RasulAllah , was not
needed because of his presence. When RasulAllah died, the Sahabah
were very careful and used this principle whenever they could in a
decision. They would consult each and if the majority agreed, it would
become state law. Eventually, it would be a part of the Shariah.
Ibn 'Umar It is feared that rocks fall down from the skies upon you, I tell you the
Messenger of Allah said such and such and you tell me Abu Bakr
and Umar and such and such. [Ibn Umar]
Umar ibn Al-Khattab Recognize similar cases and using your intelligence make an
analogy. [Umar ibn Al-Khattab]
Era of the Taabi'een Definition of a Taabi: same definition of SaHabi, except, instead of
seeing/meeting the prophet it applies to those who met at least one Sahabi.
Those who met a large number of saHaba are Kibar at Taabieen, then it
was Taba Taabieen and then Mutba Akhireen. At the time of the
Taabieen, many new nations entered into Islam. With those nations came
new issues. Many of the Mujtahids (Muslim scholars who practice Ijtihaad)
of this time period fell back on specific principles to derive those Islamic
rulings. Dispute and diversity of juristic thought in different quarters
accentuated the need for clear guidelines.
The first Usool Al-
Fiqh book by Imam
Shaafi'ee
In the year 204H (820 CE), Imam Shaafiee wrote a book called Ar-
Risaalah on the subject of the Usool Al-Fiqh, the first written book of Fiqh
in record. This does not mean Usool Al-Fiqh did not exist before. He
compiled the book because Abdur Rahman ibn Mahdi wrote to him asking
him for a response to the arguments of the people in Iraq. They were
disputing about Usool al-Fiqh.

The reason they were disputing the texts of Islam was due to their over use
of logic and philosophy. Imam As-Shaafi'ee was, of course, very much
against Kalaam or philosophy. Imaam as-Shaafiees reply was so


24

extensive that it became a book. In his book, he gathered and articulated the
principles by which a scholar could come to his conclusions in Fiqh. He
called his book Ar-Risaalah (The Message). Fiqh was recognized as an
independent science during the time of as-Shaafiee.




25

Two Classical Approaches


The Theoretical Approach The Deductive Approach
Names of
School
Tareeqat Al-Mutakallimeen, Usool
Ash-Shafi'eyyah
This does not mean other schools are
not included, but the books were mostly
written by Shaafi'ee scholars. Imaam
Shafiee wrote all of his methodology
and theory by himself, as opposed to
the other schools of thoughts.
Tareeqat Al-Fuqahaa, Usool Al-
Hanafiyyah
This was the Usool that was developed by
all of the Hanafi 'Ulema, in the Madhab of
Imam Abu Haneefah.
Madhab of
School
Maliki, Shafiee, Hanbali and the
Mutazilah.

This is the approach of the majority of
the scholars in Usool al-Fiqh. The
Mutazilah, the starters for this
approach, made a Haakim over the
Quran and Sunnah. For them, right and
wrong was based on logic and human
reasoning. They believed Quran was
not the speech of Allaah, but rather a
Creation of Allaah. Aql, or intellect,
was the cause of much of their
deviation.
Imaam as-Shafiee had harsh
statements about them. There is no
need for these rules, if you understand
Arabic. The philosophy brought lots of
harm to the religion. Can you use your
intellect and reasoning to understand
the Quran and Sunnah? For Mutazilah,
they valued logic and reason so much
(Tahseen wa Takbeen (human
reasoning)) that they used it over the
Qur'an. So they came to the Aayat of
the Qur'an and changed many things,
due to their intellect.
Hanafi


This is the approach of one school of Fiqh,
the Hanafi Madhab. It is also called the
Tareeqatul Fuqaaha or way of the legal
jurists. Finally, it is called a way
developed and popularized by the Hanafi
scholars, as aforementioned. It is also
called the subjective approach in that
everything in their Usool al-fiqh depends
on their Fiqh. In other words, the Fiqh
established by their scholars is used to
determine what their Usool or principles of
Fiqh will be. If the Usool is not related to
their Fiqh, then it is an Usool that is
irrelevant. The Fiqh maxims were
developed more profoundly by the Hanafis
but the Fiqh of the majority is more
systematic and easier to follow.


26

Main
approach
1. The exposition of the theoretical
doctrine prior to the application of
the issues of Fiqh. This means they
form the rule independently of the
Fiqh.
They use a completely objective
approach in developing their principles
of Fiqh. Then they go and use it filter
the opinion of scholars. Their Usool al-
Fiqh is developed without considering
any Fiqh rulings.
2. Articulating the theoretical principle
of Usool Al-Fiqh independently
without necessarily attempting to
relate these to Fiqh itself.
It's a logical rule and it has no relation
to Fiqh. It is a principle derived first
and then it is applied with no care for
what Fiqh says. That's why they were
called Mutakallimeen.
3. Engaging into complex issues of
philosophical character which may
or may not contribute to the
development of the practical rules
of Fiqh.
They are simply discussing one issue
from all perspectives. What is the
source of Knowledge (Allah)? What
does this affect? They would like to
discuss a theory from all angles,
whether it pertains to the issue or not.
(Such as the concept of the Prophets
infallibility before the prophetic
mission).
*One of the benefits of Madhab
1. The theory is formulated in the light of
its application to relevant issues of
Fiqh.

They took out rulings from their books of
fiqh and then tried to understand the
theory of the imam. If the theory remains
constant it becomes a rule, but if it does
not, they change the theory or they design
another rule. This was highly criticized
by the other groups because one is
twisting around logic which is considered
infallible.

2. In a pragmatic approach, principles of
Usool Al-Fiqh are expounded in
conjunction with Fiqh itself. Only
relevant issues are mentioned.
3. A principle of Usool which appears to
be in conflict with an established Fiqh
principle entails an Adjustment to the
theory in different ways.
Hanafis are totally different from Shafi'ees
on engaging in complex issues. The
Hanafis don't look at Usool from all
angles. They only look at Usool which is
relevant to their Fiqh.


27

Shafi'ee is that their founder left both
Fiqh and Usool behind as a written
legacy.
Major book 1. Al-Mutamad by Abul Hassayn Al-
Bassri 436H (1044 CE)
He was a Mu'tazili Imam in 'Aqeedah
and this affected his student, Imam al-
Juwayni. He was Shafi'ee in Fiqh and
thus was able to influence the Muslims.
2. Al-Burhan by Imam Al-Haramayn
Al-Juwayni 487H (1094 CE)
He was the student of al Bassri and
more importantly, the teacher of Imam
Ghazali.
3. Al-Mustasfa by Al-Ghazali 505H
(1111 CE)
He was the biggest proponent of the
Fiqh o the Mutakallimeen. He took
their approach to higher levels of
influence. In his book quoted above his
name, he started the book by defending
logic adamantly. He claimed that it was
the primary tool of Usool al-Fiqh. The
reason for such an approach was
because he and his teacher, al-Juwayni,
were strongly influenced by the
'Aqeedah and Fiqh of their Mu'tazili
tacher, Al Bassri.
4. Al-Mahsoul by Fakhruddin Al-Razi
606 H (1209 CE)
He was the seal of the 'Asharees in
'Aqeedah and the student of the great
Ghazali. He greatly expounded on
Ghazali's theories in 'Aqeedah and
1. Kitab fil Usool by Abul Hassan Al-
Karkhi 340H. (951CE)
He was the famous scholar who made the
statement: "If an Aayat or Hadeeth does
not goes against our Madhab, then it must
be either abrogated or re-interpreted."
The majority of the scholars criticized this
statement and called it extreme. This
statement came out at a time when the
doors of Ijtihaad were closed and you were
allowed to only follow one Madhab of
four.
2. Usool Abu Bakr Al-Razi Al-Jassas
370H. (980 CE)
3. Tasees Al-Nadhar by Al-Dabboossi
430 H (1038 CE)
4. Usool Al-Bazsawi 482H (1089 CE)
5. Usool Al-Sarakhsi 490H (1096 CE)


28

Fiqh.
5. Al-Ihkaam Fi Usool Al-Ahkaam by
Al-Aamidi 713H (1314 CE)






31


Part Two: Al
Hukm Sharee
(The Islaamic
Rule)








33


Chapter One: the Anatomy of Islaamic
Rule/Law
On the Day of Judgment, our nafs, or soul, will be responsible for the actions performed by the
parts of our anatomy. Thus, the knowledge of Usool Al-Fiqh directs the actions to be carried out
by our limbs. On the Day of Judgment, Allaah will seal our tongues and the limbs will
then testify either for us or against us. Everything will testify to what we have done, and thus we
see how essential it is that we watch out for how we use these precious gifts from Allaah .

1. Pillars of Islaamic Rule
Law Maker (Al-Haakim)
Every specific Islaamic rule has to come from a law maker, the
One and Only, Allaah . He is the Legislator, who has the
authority to establish the law.
The Law (Al-Hukm Ash-
Sharee)
The rules to be enacted; the Islaamic rule in the form of
command which came from the law maker, Allaah .
Meant for someone (Al-
MaHkoom Alayh)
The rules established by Allaah must have been meant
for someone, who is the accountable party. The mukallaf is the
servant of Allaah who is accountable and subjected to the rules
of Shariah
Applied to whom? (Al-
MaHkoom Feeh)
The rule has to be applied to one of the actions of that servant of
Allaah , the mukallaf. That is the subject-matter of Hukm,
because in the sight of Allaah , one is judged by their
actions and not by their color, ethnicity, etc.
Extracted by whom?
That rule or law is extracted by someone knowledgeable enough
to extract it the Mujtahid or Mufti.
How does he/she extract?
The Mujtahid operates and extracts in a specific way and code-
using the principles of USool Al-Fiqh.
What do they filter?
He or she knows how to regard and disregard tips based on
their knowledge of USool Al-Fiqh.
They find what is pertinent to the actions of the servant and
whatever is not relevant is filtered away.
What do they do with that
knowledge?
Then that Mujtahid tells the general public what Allaah wants of
them. It is their responsibility to go and make people aware of
the commands of Allaah .

34


Ibn Al Qayyim said that the ulamaa are dearer to us than our
parents because they rectify the matters of the Day of Judgment
for us, while our parents are usually primarily concerned with
securing us a great life in this dunya.

2. Who is the Law Maker? Al-Haakim
Every specific Islaamic rule has to come from a law maker. Here we shall look at who has
the power to say that something is law in Islaam.
Allaah is the law maker!
We understand that Allaah is the Haakim, but what is the Usool, or proof, for
this? The Usool for this is in the Quraan, which is an authority, the highest authority, and a
source of law. In the Quraan, Allaah says that He has the supreme power to legislate
the law.
l ! ! . _ 1 . ! _ L ! < > > ` ` - 1
l > > . _ ' > . ! ,
Have they not seen that We set upon the land, reducing it from its borders?
And Allaah decides; there is no adjuster of His decision. And He is swift in account.
{Surah Rad: 41}
! ,-. _ . | !` !. `. !, ! <
, ! _ l L _ | l > ` | < . - , | | ! l , ! $ _ l 1 `
l > _ . l ! _ - l

You worship not besides Him except [mere] names you have named them, you and your

35


fathers, for which Allaah has sent down no authority. Legislation is not but for Allaah . He has
commanded that you worship not except Him. That is the correct religion, but most of the people
do not know.
{Surah Yusuf: 40}

Can Intelligence be the Law Maker?
While the Mutazilah and the philosophers claim that intellect is a law maker, we learn
from the following ayaat that intellect cannot be a law maker. If 'aql, or intellect, was
enough Allaah would not have sent messengers. We also learn that on the Day
of Resurrection Allaah will judge us based on if we received the message
completely or not, therefore showing that it is not upon the human being, himself, to
determine what is right and wrong. He will not judge us based on our intellect.

_ . !| . ..l _ . !| . !,l. '.
> ! ! ` - , , _ > . _ , -
Whoever is guided is only guided for [the benefit of] his soul. And whoever errs only errs
against it. And no bearer of burdens will bear the burden of another. And never would We punish
until We sent a messenger.
{Surah Al-Israa: 15}
_:, _` l > _!ll ls < >`> -, l l
< s !>>
[We sent] messengers as bringers of good tidings and warners so that mankind will have no
argument against Allaah after the messengers. And ever is Allaah Exalted in Might and Wise.
{Surah An-Nisa: 165}


36


Is the Prophet of Allaah a Law maker?
The ulamaa have a difference of opinion over this matter. What the evidences seem to
show is that he was a lawmaker, but not in his own right because he was guided by
Allaah , and never gave laws of his own whims and desires.
, ! l , l , l ! | l , ! % l . , , _ l l ! _ ! | l , l - l
. > `
[We sent them] with clear proofs and written ordinances. And We revealed to you the message
that you may make clear to the people what was sent down to them and that they might give
thought.
{Surah An-Nahl: 44}
| s . ! l , s l , > L ! | s l , | l , l _ | ! | !
_. ! > _ !, | ,.. !, |
_. "
But if they turn away - then We have not sent you, [O Muhammad], over them as a guardian;
upon you is only [the duty of] notification. And indeed, when We let man taste mercy from us,
he rejoices in it; but if evil afflicts him for what his hands have put forth, then indeed, man is
ungrateful.
{Surah Ash-Shura : 48}
| ! l ! | l , l > . , ! l > _ l . >` > , , _ l ! _ . ! 1 , < . > _
_,!ll !.>

37


Indeed, We have revealed to you, [O Muhammad], the Book in truth so you may judge
between the people by that which Allaah has shown you. And do not be for the deceitful an
advocate.
{Surah An-Nisa: 105}
From this ayah, we learn that Prophet Muhammad was always guided by Allaah .
An example of this is the Hadeeth of the blind man:

Q- ,-, - '-
_ - -- - _ - ~ -- - - - ; - ~ J = _ - - ' - - : ' - ; ~ -- - Q - - -
- -' - -; - - _ - - = ~ - - , ' ~ - ; ~ -- _ - ~ -- - - - ; - ~ = , -
- - ~ - - - - - - = , - - , - -' - _ - -' - ' - - : J - ~ - - --
' - ~-' - ' - - : ; - . ' - : ~ = ' -
'--
Abu Huraira reported: There came to the Apostle of Allaah (may peace be upon him)
a blind man and said: Messenger of Allaah, I have no one to guide me to the mosque.
He, therefore, asked Allaah's Messenger (may peace be upon him) permission to say
prayer in his house. He (the Holy Prophet) granted him permission. Then when the
man turned away he called him and said: Do you hear the call to prayer? He said:
Yes. He (the Holy Prophet then) said: Respond to it. [Muslim]
Muhammad inferred that if the man could hear the adhaan, he lived in close
proximity to the masjid. We must keep in mind that the adhaan the blind man heard from his
home would be the voice of a human without the aid of a loud speaker. Since everyone would
be going to the masjid to pray in congregation, someone would eventually help the man make
his way. This Hadeeth informs us of the importance of prayer in jamaaa as the Messenger
did not even excuse a blind man from this obligation.
Allaah informs us in the Quraan, as we see in the following ayah, that all the prophets
before Prophet Muhammad were also guided by Allaah in relaying religious
matters to the people.

. _ l > _ ! $ _ ! . _ , . > l ! % > ! | l , ! . !

38


, . | , ` _ s . _ ` ! $ _ . . ` s l
_,:l ! `s. l| < _,.> l| _ '!: l| _ `

He has ordained for you of religion what He enjoined upon Noah and that which We have
revealed to you, [O Muammad], and what We enjoined upon Abraham and Moses and Jesus
- to establish the religion and not be divided therein. Difficult for those who associate others with
Allaah is that to which you invite them. Allaah chooses for Himself whom He wills and guides
to Himself whoever turns back [to Him].
{Surah Ash-Shura: 13}
Muhammad basically made ijtihaad, but if he made a mistake in religious matters,
he would be corrected by Allaah . He was a supervised (not independent) lawmaker. For
example, when Muhammad decided that the prisoners of war during the Battle of Badr
should be released for ransom, Allaah revealed the following ayaat to correct him.

! l _,l > `&! `. _.> .` _ .
_s !l < ` > < s '>> l '. _ <
_, >.l ! .> ,s Ls
It is not for a prophet to have captives [of war] until he inflicts a massacre [upon Allaah 's
enemies] in the land. Some Muslims desire the commodities of this world, but Allaah desires [for
you] the Hereafter. And Allaah is Exalted in Might and Wise. If it was not for a decree from
Allaah that preceded, you would have been touched for what you took by a great punishment.
{Surah Al-Anfal: 67-68}

Is the Mufti or a Mujtahid a Law maker?

39


He or she is not a law maker, rather they are scholarly people informing
us of what, to the best of their study and research, is the law that Allaah
commands us with.

We have the law in the Quraan and Sunnah, but they often must be
encoded for our times, since the specific rulings for many modern issues
cannot be found in the Quraan or Sunnah. So in this way, the Mufti or
the Mujtahid are codifiers, not law makers, who are very confined to
how they can encode laws for us. They use comparisons and previous
laws to simply tell us the possibilities behind a certain matter. They are
informing the people what Allaah considers Haraam, FarD, etc.,
and that is why it is very hard for them to issue fatwas.
`l . `s. l _ _$! ! l ! ,
< l l `.l _.1l ', |
_,lLl l ,s 'l

Or have they other deities who have ordained for them a religion to which
Allaah has not consented? But if not for the decisive word, it would have
been concluded between them. And indeed, the wrongdoers will have a
painful punishment.
{Surah Ash-Shura: 21}
The Prophet said: "There is no obedience to any created things if
it entails disobedience to the Creator.
From this Hadeeth as well as the above ayah, we realize how confined a
Mujtahid or Mufti is when codifying the laws of Islaam. It is one thing
to trust a shaykh and another to follow a shaykh blindly without being
aware of how he gets his knowledge.
Answer

-- -- = ~ '-

--- ~- ;-~ --- = _-~ Q- >= ;)--- ,- -,~

40


'~-V -- Q-- '- ;)--- ~~- -;-=- ;,-
--- ,- ~ ;-~ --- = _- '- _-- ;-'- -;-=-
')-- ;--= ;- '- ;--- '-== ;--= '-- ;---- ~-,- --
,=-- '-- ;=--'- ;- '--- '- --'- '-== ;-=-
--- '--- '-- ;)~- '- - _- ;)~- --- = _-~
;-~ ; '----- ')-=--- '-- Q- ,- '-- --= 4--
---- ,-- -~- Q-~ ;-~ --- = _-~ '-- ;-
,-- - -'=- '-- -- ')-- ;=,= '- ';-=
'=-

Narrated By 'Ali : The Prophet sent an army unit (for some
campaign) and appointed a man from the AnSar as its commander
and ordered them (the soldiers) to obey him. (During the campaign)
he became angry with them and said, "Didn't the Prophet order
you to obey me? They said, "Yes." He said, "I order you to collect
wood and make a fire and then throw yourselves into it." So they
collected wood and made a fire, but when they were about to throw
themselves into, it they started looking at each other, and some of
them said, "We followed the Prophet to escape from the fire.
How should we enter it now?" So while they were in that state, the fire
extinguished and their commander's anger abated. The event was
mentioned to the Prophet and he said, "If they had entered it
(the fire) they would never have come out of it, for obedience is
required only in what is good." [Bukhari]

A companion on an expedition told his disobedient followers to jump in
to the fire. The Prophet got angry because the commander told
them to jump in the fire and kill themselves. Suicide is clearly Haraam,
or forbidden. Muhammad said if they entered the fire and obeyed
the leader they would never have come out, meaning they would have
entered hellfire because one is required to obey a leader as long as the
leader obeys Allaah . Allaah has forbidden suicide as well as
carrying out punishment through fire. As Muhammad said:

: - - ~ ' - , - = Q - - - = - Q - - -

41


-- ; ~ ; - ~ - - - -- _ - ~ _ - - - , - - , ~ ' -
- ' -' - - ; -- = ' - ' )- - ~ = , = - ~ - - ; - ' --' - -; - , = '
-; - , = - ' - -; - - -' - ' -' - - ; -- = ' - - - - ~ = , - - ' - -
' -- ' - ' --' - - - ' - - ' -
-

Narrated By Hamzah al-Aslami : The Apostle of Allaah (pbuh)
appointed him commander over a detachment. He said: I went out
along with it. He (the Prophet) said: If you find so-and-so, burn him
with the fire. I then turned away, and he called me. So I returned to
him, and he said: If you find so-and-so, kill him, and do not burn him,
for no one punishes with fire except the Lord of the fire.
[Abu Dawood]


-' = - - = = , ' :
- -, ' - - - = ' - , ' = '' _ ' - '' , - - , -
- , ' - " : =- - = - ` , ' - = - = ' , " ! ' :
- , - - , , , ' - , + - - - = = , ,' ' - - -
: } '' - ' -' - +-' - ' - = - = - ' : - ' :
- - - ' - - ' ' - '' , - ' , ! ' - " : . = ' - , - = , , '
-, - = - '' , = ' - , ' = , -, ' = - '' " ' : - ' :
_ ' - . ' " : +- ' - = = ' - "
`Adee bin Haatim that he heard the Messenger of Allaah
reciting the verse, "They (the Jews and Christians) took their rabbis
and monks to be their lords besides Allaah ." (Surah at-
Tawbah: 31) Upon which I said, "indeed we did not worship them."
[The Prophet ] said, "did they not make unlawful that which
Allaah made lawful and so you too did the same? [Did they
not] make lawful what Allaah made unlawful and so you too
did the same?" I replied, Yes. He said, "This then was the worship
of them." [at-Tirmidhee]

'Adee ibn Haatim was told that accepting the monks as law makers

42


meant that they were being worshipped.


Amazing Gems we derive from this discussion of who is the law maker
One: The Mujtahid who explains Islaamic rules and commandments to the general public
should explain his proof. In our times, many cultural Madhhab followers have lost this. If
you are able to ask for a proof, ask for it! This is a sign of intelligence on the part of the
follower.
Two: We learn that just because a human says something is part of Islaamic Law doesnt
mean we have to follow it, unless he or she proves that this is what Allaah wants.
Three: Human intellect and rationale are not law makers. It is an essential tool used by
the Mujtahid in the process of deducing Islaamic Law.
3. Meet Hukm Sharee (an Islaamic Law)
Every specific Islaamic law has to come from the Lawmaker, Allaah , from the
anatomy of Islaamic law. Here we shall discuss what is an Islaamic rule/law, (a.k.a Hukm
Sharee). [Refer to Anatomy of an Islaamic Rule/law]
Definition of Hukm Shar'ee
Far'ee
It is a communication from Allaah (the Lawgiver)
addressed to the mukallaf in regards to his or her actions
constituting a demand or an option (Hukm Takleefee) or
an enactment (Hukm Wad'ee).
A demand is either a:
(a) command
(b) prohibition.
Hukm Takleefee as a Demand

That demand is either:
(c) binding
(d) not binding
A command which is a binding demand is called FarD or
Waajib. One is rewarded for doing it and punished for
abstaining from doing it.
A command which is a non-binding demand is called
MustaHab or Sunnah. One is rewarded for doing it and
not punished for abstaining from doing it.
A prohibition which is binding demand is called Haraam.
One is punished for doing it and rewarded for abstaining
from doing it.
Application of a demand



A prohibition which is a non-binding demand is called

43


Makrooh. One is rewarded for abstaining from doing it,
but nothing happens if one gets involved in doing it.
What about MubaaH?
Hukm Takleefee as an option
In the definition "or an option," the servant of Allaah
is at liberty to do or to avoid doing something. No reward
or punishment is involved.
Hukm Wad'ee
Enacting something into:
(a) a cause (Sabab)
(b) a condition (Shart)
(c) a hindrance (Maani') to something else.

We are not made accountable for these as we are for
Hukm Sharee. These have been enacted by Allaah
to establish the values of our actions of Hukm
Sharee (whether an action is Haraam, FarD, etc.).

For example, the sun is the Sabab (cause) for the
establishment of the different FarD Salat. Although zakah
is waajib, the Shart (condition) is that one year must pass
over the wealth. If the inheritor is the reason for the death
of the person, then this is maani (hindrance) for the
collection of inheritance by the inheritor.

Example:

Hukm Takleefee in a rent contract:
If a family makes a contract that they will pay $950 a month and the contract explicitly
states that they cannot keep pets in the home, the contract breaks down like this:
Waajib: They must pay $950 per month for the duration of one year.
Haraam: They are commanded in a prohibiting way not to have pets.
MubaaH: They may sublet if they wish.

Islaamic rule vs. manmade rule: Can these values apply to manmade laws?
We know that driving and talking on the cell phone or speeding are illegal, but can they
constitute as being Haraam? The point is that we should abide by such laws as they are
established for maintaining public safety. For example, some ulamaa consider it murder if
one speeds and kills someone else; they consider it suicide if one speeds and gets killed in
an accident.

44






45


Chapter Two: First: Al-Hukm At-Takleefee
1. Al-Waajib, a.k.a FarD
Definition It is a commandment that is binding.
This means that if the commandment is performed, there is a reward.
But if it is not, then there is punishment.
Other Names Other names include: FarD, Maktoob, Haqq - all of these terms
mean the same thing according to the majority of scholars.
According to the Hanafis, there is a difference between FarD and
Waajib. The majority of scholars say that there is no difference.
Is it called Waajib or
FarD? Are they the
same?
If a person denies a FarD they are considered to be Kaafir. If a
person denies a Waajib, it does not take them out of the fold of
Islaam.

The Hanafis base this distinction upon the chain of narration of an
evidence, whether they are Mutawaatir (abundant reports) or Ahaad
(solitary reports). If the evidence is from the Quraan or has a large
number of narrators for every stage in the chain of a Hadeeth, then it
is Mutawaatir and any binding commands derived from such
ahaadeeth are FarD according to the Hanafis. However, if the
evidence has a small number of narrators on each stage of the chain
of a Hadeeth, then it is Ahaad and any binding commands derived
from these ahaadeeth are considered Waajib for the Hanafis. Thus,
Waajib is a degree less than FarD.
Waajib vs. FarD
according to Hanafis
A FarD is something whose proof is in total agreement without any
doubt, like Salah and Zakah and Hajj. A Waajib is something whose
proof has difference of opinion from the scholars, like Witr.

An example of this is that of reciting FaatiHah in prayer.
Allaah says:
| ,, `l- , `1. _ _.l. l `.
.l. !L _ _%! ,- < '1` l !.l
l. _l .> ,!. />l. '! ! .. _

46


1l l. `> > _.` `>
,. _ -., _ . < `>
l.1` , < '! ! .. `
l.l . l . < !. !.> !
`1. />. _ ,> > s < ,>
Ls > `-.` < | < "s >
Indeed, your Lord knows, [O Muhammad], that you stand [in
prayer] almost two thirds of the night or half of it or a third of it,
and [so do] a group of those with you. And Allaah determines [the
extent of] the night and the day. He has known that you [Muslims]
will not be able to do it and has turned to you in forgiveness, so recite
what is easy [for you] of the Quraan. He has known that there will
be among you those who are ill and others traveling throughout the
land seeking [something] of the bounty of Allaah and others fighting
for the cause of Allaah. So recite what is easy from it and establish
prayer and give zakah and loan Allaah a goodly loan. And whatever
good you put forward for yourselves - you will find it with Allaah.
It is better and greater in reward. And seek forgiveness of Allaah.
Indeed, Allaah is Forgiving and Merciful.
{Surat al-Muzzammil: 20}

The evidence of the Quraan takes precedence here because it is
Mutawaatir. This is why reciting what is easy for you in your Salah
is FarD for the Hanafis and reciting Fatihah is Waajib. So no
Hadeeth can overtake the Quraan. The majority, who do not
differentiate between waajib or FarD, respond by saying that an
authentic Hadeeth says:
' - ' ' ' - ' ' - , = -' - - ' - '
There is no prayer for whom do not read the FaatiHah.

47


[Bukhari, Muslim]
Is there some benefit
to this distinction?
In the end the discussion is like those who say forest, while others
say trees. In this discussion of Usool al-Fiqh, we will use the opinion
of the majority that FarD equals Waajib.

Two categories of Waajib
- Waajibaat due to Allaah
These are acts of devotion in worship, which are binding. They include Al-Hudood
(punishments) for theft and adultery and involve a judge in their decisions.
- Waajibaat due to the creation
These are acts that involve trust, honor and wealth and are owed to the creation.
Forgiveness is too late if someone is about to face a Hudood. In an authentic Hadeeth, a
man wished for the Hudood to be enacted on someone else and at the moment of punishment,
forgave him. The Prophet said to all the people at this instance:
, ' - - ' - ' - - , - ' -, - = ' - = - - - = -
"Forgive the Hudood punishments between yourselves. As for those (cases) that reach me
requiring a Hudood penalty, it becomes Waajib (that it be fulfilled)." [Sunan Abu Dawood
and an-Nasaa'ee]
No one can stop the punishment at that moment of Hudood, because they are from the
Waajibaat due to Allaah . This also shows that it is not easy to reach execution in
Shariah as some people think. It is a very difficult matter and usually one can be forgiven by a
person before execution. And Allaah says that through the Hudood, you will find life
within that society. If people who are doing evil are being punished, lives are being saved.

Waajibaat one owes to Allaah Waajibaat one owes to others
Acts of Worship, like Salaah, Zakah,
Fasting RamaDaan, and Hajj.
Punishment, like the Hudood
punishments
Example: The punishment of 80 lashes
for the false accusation of Zina.
The right of Qisaas (eye for an eye)
Here, we see that some Hudood punishments are
considered to be from the rights of the people.
Example: Execution is the right of the bereaved
family of the victim.

48


The responsibility to replace the property of others
which one has destroyed.
Punishments that came in the meaning
of acts of worship, like the expiation for
making a false oath, etc.
In terms of the oath being broken, the
expiation is in this order:
1. Feed 10 people.
2. Dress 10 people.
3. Free a slave.
4. Fast 3 days.
Mourning period for death in the family or Iddah
for the divorced woman.

Although you cannot waive the rights of Allaah, you can waive your own rights to
compensation. However, once you drop your personal right to compensation, you cannot take
this decision back. For example, your window is broken and you find out that your neighbors
son did it. You decide to forgive them, but as they leave, you see them giving each other a high
five. Since you have already forgiven the rights they owe you of compensating for the broken
window, the dropped right can not be reclaimed.
Amazing Gems we derive from this discussion of what is FarD/Waajib:
No one has a right to cancel and drop the right of Allaah.
Mother telling her son not to pray at the upcoming soccer
tournament. Also, a mother cant tell her son to stop fasting
during RamaDaan because of a basketball game. This is because
prayer and fasting during RamaDaan are both obligations the
child owes to Allaah and a mother has no authority to drop
these rights.
Examples
Teacher telling Muslim student not to go for Jumuah because
he'll miss important classes, and knowledge is more important
then prayers.
In terms of Jumuah, though, if one has a dire circumstance
where he really cannot leave his class or job, then he must make
sure he does not ever miss three straight Jumuah prayers. This is
because the Prophet has given this concession in an
authentic narration by saying whoever misses 3 (consecutive)
Jumuah prayers, will have their heart sealed by Allaah. [Abu
Dawood]
Sisters dont need to worry as Jumuah is only FarD for the men.
However, in a society like this, it might be recommended for
women to benefit from the KhuTbah as much as they can.

49


Only Allaah can cancel His right if He wishes. This can only be done with solid proof
from the Quraan and Sunnah.
Senior who cannot fast may feed a needy person for each day he
or she misses.
Examples of Allaah's
right being dropped
Someone who missed their fasting in RamaDaan for a valid
reason makes it up after RamaDaan (QaDaa').

The Waajib is of different levels it is not all one level.
Of the highest level
Eeman in Allaah and His messenger, Salaah, Zakah, Hajj pillars
of Islaam.
In a Hadeeth, the Prophet mentioned Eeman in Allaah and
His messenger, Salaah and then obedience to parents.
After that The FarD comes in different levels.
Example

' ' -' - , - = ' ' - ' ' - ' ' -' - - ' + = '
As Prophet Said, "The head issue is Islaam, its pillar is
Salah, and its pinnacle (the hump of the camel) is Jihaad in the
path of Allaah."
(al-Haakim, al-Ahmad)

Even the same FarD action can fluctuate in accordance to how it is performed.
- Example: to give Sadaqah to a stranger is not as virtuous as giving to a needy family
member who is an orphan, a young girl who, if left without this charity, would become
very ill.
- Also, in terms of zakah, you cannot give it to the Usool (responsible for your birth,
ancestors) or Furoo (ones you are responsible for). This is because you are already
obligated to give them financial help; that is a separate obligation. However, a wife can
give zakah to her husband if he is eligible because she is not obligated to support him
financially; this was done by Ibn Abbass wife in front of the Prophet .
The reward of performing a FarD:

There is reward for one who performs a FarD with an intention, and that reward is
multiplied ten times. If there is no intention, there is no reward. No intention includes being
forced to do an act or doing it unwillingly, only because you are embarrassed that others would
know you have not done it. These days, prayer and the Hijaab are becoming things done only

50


out of embarrassment from fellow Muslims criticizing those who do not pray or wear Hijaab.
Parents should take care to prepare their children for Salaah and Hijaab early on, so that they
will love and want to perform these obligatory actions when they must.
Salaah Munaafiq is a Salaah in which a person neither seeks reward nor fears
punishment in performing it. However, a person who performs this type of Salaah does not
have to repeat it. If the FarD is forced, such as zakah when it is forcefully taken from those
who do not wish to pay it, even though they didnt have the intention, they dont have to repeat
the action.
Also, not hoping for reward and not fearing punishment is blameworthy; it is one of the
extreme parts of mysticism. In worship, we should have love, hope and fear of Allaah .
We should not be like those who believe they are committing shirk if they worship Allaah
out of hope for Jennah and fear of Jahannam.
If someone does not perform a FarD, they are sinful. If Allaah wishes He may
punish them out of His justice. We say may and not for sure because Allaah may
forgive them. According to some scholars, it is tantamount to Kufr al-Iraad if one says the
kalimah but does not pray, fast, etc. because this person is denying these things by his actions.
This is applicable to those who have knowledge of what they are doing. If they had no
knowledge, there is no sin on them even until death. However, there is the sin of not learning.
If someone is delinquent in learning their deen, they are sinful since studying Islaam is FarD.

How is FarD recognized?
One: -` _,- Statements of command
-` . - Imperative Verb
l . l . l !
`1. />. _ ,> > s <
| < !, l-. ,.,

And establish prayer and give zakah, and whatever
good you put forward for yourselves - you will find
it with Allaah. Indeed, Allaah of what you do, is
Seeing.
{Surah al-Baqarah: 110}

51



Establish Salah! - This a verb indicating a direct
command


`- ---' '--' . -`





. l 1 . . . l `
Ll ,l!, _.-l _

Then let them end their untidiness and fulfill their
vows and perform Tawaaf around the ancient
House.
{Surah Al-Hajj: 29}

Present tense verb conjugated with a laam that
indicates a command. The laam means let them or
have them.


. - -`



.`>l _ !.l | ! >l
` . < . l > > l >
! l -.,. >l!,
_,.> ,s _,>.` ! .-..`
., _. _.! `> .
_!`> >l. ! ... ., _

52


-, .l | < l !ls !>>


And [also prohibited to you are all] married women
except those your right hands possess. [This is] the
decree of Allaah upon you. And lawful to you are
[all others] beyond these, [provided] that you seek
them [in marriage] with [gifts from] your property,
desiring chastity, not unlawful sexual intercourse. So
for whatever you enjoy [of marriage] from them, give
them their due compensation as an obligation. And
there is no blame upon you for what you mutually
agree to beyond the obligation. Indeed, Allaah is ever
Knowing and Wise.
{Surah An-Nisaa: 24}

Here, a noun (ism) acts like an imperative verb so
that the word kitaaba does not mean book, but
rather means, the decree of Allaah upon you.

Two: Words in the Arabic language that are used for commands that are binding
The word FaraDa
(compulsory)

- = , ' - _ '' - '' + - -
The Prophet said, There are five prayers which
Allaah has made FarD upon His servants.
[Abu Dawood and al-Bayhaqi]
The word Kataba
!! _%! ` . `l. `!.l !
. ls _%! _ l, >l-l 1..



53


O you who have believed, decreed upon you is fasting as it was
decreed upon those before you that you may become righteous.
{Surah al-Baqarah: 183}
The word Wajaba Example:
' - , - ' - ' - - , - ' -, - = ' - = - - - = -
The Prophet said: Forgive the Hudood punishments
between you. As for those (cases) that reach me requiring a
Hudood penalty, it becomes Waajib (that it be fulfilled).
[Abu Dawood and Nasaaee]
The word Amara
| < ! ` ` . | | l ! |
> > . , , _ l ! _ > > , ! l - | <
- ! - L > / , . | < l . - ! , . ,

Indeed, Allaah commands you to render trusts to whom they
are due and when you judge between people to judge with
justice. Excellent is that which Allaah instructs you.
Indeed, Allaah is ever Hearing and Seeing.
{Surah An-Nisaa: 58}

The word Haqq
1lLll _. '-l!, !1> ls
_,1.l

And for divorced women is a provision according to what is
acceptable - a duty upon the righteous.
{Surah al-Baqarah: 241}

Three: A warning of punishment if the command is not performed

54


Example
_ `l _` <!, .&! !| !.s _>ll
,-

And whoever has not believed in Allaah and His Messenger -
then indeed, We have prepared for the disbelievers a Blaze.
{Surah Al-Fath: 13}

As seen in the above case, the warning of punishment for not believing in Allaah
and His Messenger shows us that this belief is waajib, or obligatory. There are also other
words for FarD not mentioned above like alaikum bis-sunnah, or stick to my sunnah. This
is an order to stick to the Sunnah.
2. At-Tahreem/Haraam
Definition
A prohibition that is binding. The opposite of Wujoob. There is a
reward for abstaining from a Haraam act and a punishment for doing
it.
Al-Masjid Al-
Haraam?
It is called Haraam because things are forbidden in it. It is a
sanctuary or place of peace. Some things are tolerated outside it but
not inside it, like hunting.
Another Definition
A word or words which demand the avoidance of doing something
addressed from a position of superiority to one who is inferior. If one
is superior and asking an inferior person, it is a demand, as when
Allaah asks us. However if an inferior is asking a superior, it
is a supplication, or duaa.
Position of
superiority?
In duaa we say, O Allaah, do not enter us into Hellfire. Its a
prayer, because its coming from one inferior in position.
In terms of marital relations, a husband is a maintainer of his wife but
is not superior to his wife. The degree he has over his wife is actually
in responsibility and care for her. Thus, when a husband would like to
ask something of his wife, he should request it rather than demand it.
Other names of
Haraam Hadhar, Haraj, Hijr, Masiyah, Dhamb, Khateeah, Ithm

How is Tahreem recognized?

55


One: Nahee/Prohibition. (Do not do)
Example
,1. l | l :> ! ,

And do not approach unlawful sexual intercourse. Indeed, it is ever an
immorality and is evil as a way.
{Surah Al-Israa: 32}

Such prohibitions hold as long as there is no further evidence to show
that the prohibition is not binding.
The letters Laam-Alif spelling Laa is an article that, along with a
present tense verb, signify the prohibition to the specified action.
To aid in our understanding of the Quraan and the recognition of
prohibitions, it is essential that we take on the study of the Arabic
language, that is, the grammar and morphology of the language rather
than mere speaking skills.
Two: A warning for those who perform the act

'' , - ' ' - , ' = '' _ ' - ' '' ' = -
' , ' ' - - - - ' = '' -
The Prophet said: Allaah says, Against he who takes
my Walee (friend) as an enemy I declare war. [Bukhari]
Example
Another example is if the text exhibits Allaahs anger at an action. Such
as the statement of the Prophet ,

The anger of Allaah intensifies on those who claim to be the

king of all kings. There is no King but He. [Bukhari]
*Or the warning can
come as a statement
of curse.

' - '' '' , ' _ -
The Prophet said, Allaah curses those who slaughter
to other then He. (Muslim)


56


The default in such warnings as the above is that they are binding. So
mocking and making fun of anyone whom Allaah considers a
friend is forbidden. In the second example above, Allaah
reminds us that He is the true king in the world and the hereafter. And
finally, in the last example, Allaah is making clear that
slaughtering for other than Him is forbidden. The same is the case for
going to a specific grave with a belief of blessings being at this
location.

Another example: Abu Tufail reported: We said to 'Ali b. Abi Talib:
Inform us about something which Allah's Messenger told you
in secret, whereupon he said: He told me nothing in secret which he
bid from people, but I heard him say: Allah cursed him who sacrificed
for anyone besides Allah; and cursed him who accommodated an
innovator; and Allah cursed him who cursed his parents and Allah
cursed him who changed the boundary lines (of the land possessed by
him). [Muslim]
Kids, for example, may change signs on the highways as a practical
joke, or people may transverse on to other peoples land and claim it.
All of this would be considered Haraam (prohibited).
Three: If the action is called Kufr or Ma'siyah or Fisq or Khatee'ah or Dhamb or Kabeer'ah




- Kufr


+ - ' - ' -' ' - - ` =' - _ ' = =' , -' - - -'
- , - '
There are two things amongst the people which are kufr: to make
false accusations in lineage, and to wail on the dead. [Muslim]

The following Hadeeth demonstrates some of the consequences of
committing the prohibition mentioned in the above Hadeeth and wailing
over the dead:

- -' - ' - , ' = '' _ ' - - - ' - - - - = - - -' -
'' - - '' - ' - -, - - - - - - ' = - ' - = =, '
., - - - -' - ' + ' ' - , ' = '' _ ' - ' - - - ' - -'
' - , ' = '' _ ' - - - - = - = - ' - '' - , - , - = = '

57


' - - -' ' - - - - = -- -' _ ' ' '
One day the Prophet Muhammad was passing a woman
wailing next to a grave. He told her to fear Allaah and to be
patient. She brushed him off and he left. Some people were
watching and went over to the lady to ask her what she said to the
Messenger . The lady was terrified because she had not realized
who it was. She chased after the Prophet to ask for forgiveness
and the Prophet told her: Patience is at the first strike (of a
calamity). [Bukhari]

Nowadays, wailing over the dead is common practice, even among the
Muslims. Some cultures even pay women to perform the wailing for
their dead.
- Ma'siyah
' ' - = - , - ' , , ' ' - - ' -' , = _ - = - -
' - -' - ' ' - , ' = '' _ ' -
The statement of Ammar ibn Yaasir RA Whoever fasts the day of
doubt (the 30
th
of Shabaan) has Asa (disobeyed) Abu Al-Qasim.
[at-Tirmidhi]

People may fast on the day of doubt because they feel it is better than
missing the first day of RamaDaan. Others do it because they want to
fast the last three days before RamaDaan. Either way, it is disobedience
to the Messenger of Allaah .

- Fisq
. ! l ! l ` ` ` ` < s l | l .` _
| _,L:l `>`l || `!l l>`l
| .-L >| :RQ

And do not eat of that upon which the name of Allaah has not been
mentioned, for indeed, it is grave disobedience. And indeed do the devils
inspire their allies [among men] to dispute with you. And if you were to

58


obey them, indeed, you would be associators [of others with Him].
{Surah Al-Anaam: 121}

- Kabeerah

'' , - ' ' - , ' = '' _ ' - -' - ' - -
. = ' ' , , - '
Of the major sins is that a man would curse his parents
[al-Bukhari & Muslim]

The companions asked the Prophet why anyone would do such
an act. He replied that one may curse someone elses parents and then
they respond and curse your parents. We should not be a reason for our
parents to be cursed.
Four: The word Haraam and its derivatives

59


Example

>` . l > ` l . ! $ ` ' > ` ' ! l - ,
< , . l 1 l l . l L > !
_,.l | ! . ! _, ls .l
.1.`.. l!, >l _`. l _ _%!
` _ > : :> l l
>l > . >l. _.- . `>l l`
! _ L. . ,s !>.` . | <
"s '>

Prohibited to you are dead animals, blood, the flesh of swine, and that
which has been dedicated to other than Allaah, and [those animals]
killed by strangling or by a violent blow or by a head-long fall or by the
goring of horns, and those from which a wild animal has eaten, except
what you [are able to] slaughter [before its death], and those which are
sacrificed on stone altars, and [prohibited is] that you seek decision
through divining arrows. That is grave disobedience. This day those who
disbelieve have despaired of [defeating] your religion; so fear them not,
but fear Me. This day I have perfected for you your religion and
completed My favor upon you and have approved for you Islaam as
religion. But whoever is forced by severe hunger with no inclination to sin
- then indeed, Allaah is Forgiving and Merciful.
{Surah Al-Maidah: 3}

60



- -' ' , ' = '' _ ' - ' - = '' , - = , ' =
- ' ' ' + ' - - '
Verily Allaah has made Haraam on you ill treatment of mothers and
the burying of young daughters alive.
[al-Bukhari & al-Muslim]
Five: The legislation of punishment for the act
Example
The cutting of the hand for those that steal surely indicates that stealing
is prohibited. If such a punishment is received, then the thief is exempt
from a punishment for the crime in the hereafter. However, this is not
true if the crime involves the rights of people.
Six: Comparing an action to another action which is known to be Haraam
Example

- - ' , - -'' - _ - - ' - - ' - , - = = ' - - ,
Whoever plays An-Nard (backgammon), its as if theyve submerged
there hands in the blood of swine. [Muslim]

As for An-Nard, the literal definition is dice but the ulema differ.
Some say this is only backgammon while others say that this applies to
all games that use dice. The scholars have categorized the games that
are impermissible by what they are based on. If a game is based on
chance, it would be considered Haraam. (ex. Lottery, gambling,
Dominoes). Shaykh Yaser Birjass opinion is that all games that are
based on chance are not permited in the Shariah.
Games that are based on physical and mental skill are permissible.
Also, a teacher using dice to teach math is obviously not doing
something wrong because in that case, a game of chance is not being
played.
Seven: The notification that action shall nullify ones good deeds
Example

_ - - ' = ' - = ' ' - ' . - - - ' , ' , - ' ' -
Whoever goes to a soothsayer of a fortune-teller and asks them
about something, no Salaah of theirs will be accepted for 40 nights.
[Muslim]
The punishment is severe because Salaah is not accepted after this act.
This does not mean you take a vacation for 40 days and 40 nights. You
still have to pray the FarD Salaah but do not expect any reward. Also,
fortunetellers can come in different forms (i.e. horoscopes).

61


The Haraam is Not All One Level
Like the FaraiD, there are several levels of intensity concerning the prohibited acts.
Of the highest level
To associate partners with Allaah
After that

The major sins

In one Hadeeth, the Prophet mentions being
undutiful to your parents after shirk. In another one:

'' , - . - - ' - , ' = '' _ ' - - - -' - - =
- '' ' ' ' . = - ` - ' = - ' = , - -
` ' = - = , , - = - ' . - - -
The Prophet was asked, Which sin is the most
major? He replied, To ascribe a partner to Allaah even
though He (alone) created you. It was asked, Then what
after that? He said, To fornicated with a neighbors
family member. It was asked, Then what after that? He
said, To murder your child for fear that they will eat with
you. [Agreed Upon]

A note about the above Hadeeth: Family planning is a
solution for not having to resort to murdering your children,
and is allowed in Islaam. The sustenance has already been
written for you and your children from Allaah and
will not increase or decrease due to the amount of children
you have.

In a third Hadeeth, the Prophet mentioned 7 major
sins:

_ - -' , - - - = ' - -, - ' ' , ., ' - '' , -
= -' ''' - -' ' . - '' = - ' - -'
, - , ' ' - . = '' - ' ' ' - ' . ' , -' , ,
- = ' - ' - - = - ' ' - -, - ' ' ' ' '
"Avoid the seven noxious things- associating anything

62


with Allaah; magic; killing one whom Allaah has declared
inviolate without a just case, consuming the property of an
orphan, devouring usury, turning back when the army
advances, and slandering chaste women who are believers
but indiscreet." [Bukhari and Muslim]

Imaam Ad-Dhahabi wrote a book called Major Sins and
counted 70 major sins, in total. In our minds, its not about
how big or small the sin is, it is the greatness of who you are
sinning against. It is true Allaah is the Oft-Forgiving
but He is also the One who is severe in punishment. The
scholars also say that for the aHadeeth where the Prophet
gave people advice on what sins to avoid, some were
general warnings and some were specific to the one asking.
After that The minor sins

Haraam: Punishment or Reward
If someone intentionally desists from performing a Haraam act i.e. he or she does not do it
hoping for the pleasure of Allaah and in accordance to His prohibition, they will be
rewarded.
Example
I dont like the taste of pork, so I wont eat it. This attitude is not
rewarded. Rather, our attitude should be: I dont eat pork because
Allaah has forbidden it for me.
If someone does not intentionally desist, there is proof (as far as many ulamaa mention) that
they will not be rewarded for that.
Example
The Anaconda scam. Meaning, the person didnt even know how to
perform this Haraam act, nor did he have any desire to perform it, so
their abstinence is not rewarded.
The more a person wishes to perform a Haraam act, the more reward they get for not
performing it (if they resist in hope of the mercy of Allaah ).
Example

- - -' , - ' , , '' + ' = , ' - ' = ' ' . = ' ' , , ' =
' - - ' - ' = ' ' = '' . = '' ' -=
-' - , = - -' - - ' ' - - ' . = ' -' = - ' ' = - = -
'' ' ' + - - - _ ' ' - = - - - - - - = . = -
' ' _ - = ' ' - = ' - - - - - - . = '' ' = ' - '' - - ' -
-, - , - - -

63




There are seven that Allaah shall shade under His shade on a day
when there will be no shade but His: A youth who grew up in the
worship of Allaah, a man who was called to commit Zina by a woman
of high status and beauty and he said, I fear Allaah [Agreed
Upon]

An example would be lowering your gaze and maintaining chastity in
New York City versus in Madinah. How hard is it to lower your gaze in
New York where the fitnah is so great and the opportunities for
temptation are so plentiful, compared to in Madinah where you are
surrounded by masaajid and good people? So imagine how much
greater the reward for lowering your gaze is in NYC than in Madinah.
On the flip side, when the desire to commit Haraam should be less, the shame of committing
the sin is greater.
Example

- = + ' +, , ' ' -' , - ' , , '' + - ' , ' ' `' ' ` , ' _ , -
= ' - - . -' = - - - -
There are three whom Allaah shall not speak to on the day of
Resurrection: a senior who committed Zina, a king who lied, and an
arrogant dependent. [Muslim]

We have powerful leaders today in politics that resort to lying even
though there is no need. And imagine an old man committing zina? The
person is about to die and he is chasing after lusts. There is a difference
between a 71 year old versus 21 years old regarding this zina in that it is
much more shameful for an old man to be committing this type of sin.
And then there is the arrogant dependant, for example a poor beggar
criticizing the amount of money they receive from a stranger who was
nice enough to bother with them in the first place.

The sin of performing a Haraam act is not registered as such except for someone who performs it
with premeditation. As for someone who performs it out of ignorance, such a person is not
blameworthy. This does not mean that you commit zina by accident and then claim you thought
it was your wife. It has to be a legitimate ignorance. Even when a Haraam act is committed
intentionally, the angels wait for a certain period of time before recording it in case you will go
back and repent. SubHan Allaah, all this is out of Allaahs mercy on us, and still so few of us are
thankful.

64


However, even if that action is done out of ignorance, that does not necessarily cancel the worldly
consequences. Nor does it save such a person from punishment if someone in his case should
know better.
So if you smash a car and it was an accident, you still have to pay for the car you wrecked. You
may still also be punished in other ways for acts done out of ignorance.

Ibn Al-Qayyim spoke of the issue of what is worse- performing a sin or abandoning a
waajib. He concluded that abandoning a waajib is worse and used the example of Adam versus
Iblees as his proof. He said Adam committed a sin and had a chance to repent and turn back.
However, Iblees abandoned a waajib and was cast away from Allaahs mercy forever.
However, other ulamaa said there is no difference between the two and both are just as
bad. They argue that abandoning a waajib is a sin itself and differentiating the two is a
violation to the understanding of sin. As one of the maxims of USool Al-Fiqh holds, Rushing
in to making something Halaal into Haraam is the same as making something Haraam in to
Halaal. Some believe that the stricter you are, the more religious you are. Abstaining from
halaal does not make a person more religious. Everyones mind seems to have this thought of
religion and yet living a harsher or easier lifestyles have nothing to do with your religiosity
outside the realm of what is set as halaal and Haraam.
3. MustaHab (desirable)
Definition
A commandment that is not binding. If this act is done,
there is reward. But if it this act is not done, there is no
punishment involved.
Other names for MustaHab
Sunnah
Nafl or Naafilah
FaDeelah
Ragheebah
TaTawwu
Nadb

The ruling of MustaHab is recognized by the following:
One: The action is encouraged.
Example

- , = - ' = ' - ' ' -
The best of you is he who learns the Quraan and teaches it to
others.
[al-Bukhari]


65


Now, do you understand from this Hadeeth that teaching Quraan is
obligatory? Of course not, the language used indicates it is a
recommended act.
Two: Mentioning the reward for the action.
Example

_ '' - ' ' - = - - _ - - - '' = - - - , '' _ - - ' ' - , -
- = '
Whoever builds a masjid for Allaah, seeking the pleasure of Allaah,
Allaah shall build a home for them in Paradise. [al-Bukhari]
Three: A commandment that comes with a clue that lowers it from FarD to MustaHab.
Example

' ' - . - , ' - ` '' `' ' - ' , ' - - '
- - ' -' ' - = - ,
Rasul Allaah said, Pray before Maghrib, pray before
Maghrib. He then said, For whoever wishes. [al-Bukhari]

Imaam Malik and Imaam Abu Hanifah were very keen on performing
the Maghrib prayer on time. Thus, they do not allow this two rakaah
prayer for their followers. Also, the Hadeeth above has a clue, which
lowers it from a commandment (Pray before Maghrib) to a
recommendation (for whoever wishes). Also, it should be noted that
sometimes clues that lower something from an obligation to a
recommendation will be in a different Quraanic verse or Prophetic
narration and not in the same one.
Four: The Prophets own acts of worship that he performed without additional proof to
categorize it as FarD.
Example
His custom of fasting Mondays and Thursdays. TaraweeH would also
be an example of one of his special acts.


Levels of MustaHabb
Just like we saw that there were levels in Haraam and FarD, there are also levels of
MustaHab, which are according to the circumstances.
Example
The Sunnah of Fajr and Witr. The Prophet was keener in
performing them than others. He wouldnt miss it whether traveling or

66


in residence.
Regarding choosing between two MustaHab, the one more appropriate
for the occasion should be chosen. For example, a person might be
reading the Quraan while the Adhaan is going on. In this case, he
should stop reading and respond to the Muaddhin. So we should take
all the MustaHab actions together and pick which one is best in each
situation.
After that, there were Sunnahs that he would do regularly. Sunnah Muakkadah
(Emphasized Sunnahs).
Example
Other than Witr and 2 Rakaat before Fajr, the Prophet would not
perform the other Sunnahs of the FarD Salah when he was traveling.
Also, the Prophet encouraged us to do the 12 sunnahs each day.

AIshaa reported that the Prophet said,

- = - - ` ' , ' , , _ ' - - - - - , - ' - = '
+ =' . - ' - - ' - - , - ' - - , -
- - , - = - ' ' ' - . - , - ' - '
Whoever prays 12 rakaaat sunnah every day, Allaah will build for
him a house in Jennah; 4 rakaaat before Dhuhr and 2 after; 2 after
Maghrib; 2 after Ishaa and two before Fajr.
[Tirmidhi, Abu Dawud, An-Nasaaee & Ibn Majah]

There are MustaHab acts that happen on occasion.
Example
Tahiyyat Al-Masjid, 2 rakaaat after Tawaaf, fasting Aashoorah, fasting
the Day of Arafah.
Then there are other MustaHab acts that one may do when they feel the strength.
Example
Like finding oneself awake at night, they should go and pray. Note,
however, that the most beloved actions to Allaah are those that
are done consistently and habitually even if they are small.

What if someone never performs the Sunnah Muakkadah?
The one who never ever performs those emphasized Sunnahs is blameworthy. Some scholars have
said that they will be punished by Allaah but this seems to be making the Sunnah acts in to
Waajibaat. Others scholars say that you should do these acts at least once in a while or theres a
problem with your faith, and you would be blameworthy of abandoning the Sunnah.

67


The Prophet would not do certain things on a regular basis for
fear that the Ummah have to do it. So the fact that he did certain things
on regular basis shows he wanted us to emulate him.
Some people say that some Sunnah acts are not strong Sunnahs" and
you do not have to do them. This leads others to say, How could the
Prophet say or do something weak? We must realize, though,
that these are the categorizations of the Fuqaahaa regarding narrations
we received of the Prophets actions and should not be taken literally.
There is the science of Hadeeth and calling certain Hadeeth strong or
weak. All of the Fuqaaha agreed that weak Hadeeth cannot be used
for worship. However, the majority of Fuqaaha differed over whether
weak Hadeeth can be used for heart-softeners. The Orthodox Ahlul-
Hadeeth say that we have enough authentic aHadeeth for heart-
softeners and dont need weak ones.
And when he would do something, he would be consistent in it.
Example

- = _ ' ' - = ' ' '' ' + - .
He said, The most beloved actions to Allaah are those that are
done on a consistent basis, even though they may be small.

4. Al Karaahah (Makrooh)
Definition
A prohibition that is not binding, the opposite of MustaHab. If this
action is abstained from, then there is reward. However, if it done, then
there is no punishment.
Classical works of Imaam al-Bukhari and Imaam Ahmed used this
term, Karaahah, in the same weight with Haraam. Akrahahu would be
their word for prohibition. Two or three generations later, Usool al-Fiqh
came and changed it from prohibited to disliked.
The use of the term
Makrooh
This term is often used by the ulamaa for those issues which the
scholars differed upon. Some would say Haraam, others would say
permissible. So the scholars would use the term Makrooh instead of
claiming that the issue was positively Haraam.

68


Their proof:

' ' ' + - - - ' - + - , - , - = ' , - ' ' = ' ' + - ' , - , `
' + - - - ' _ - - - ' -' - - - - = -, - '
The Halaal is clear and Haraam is clear, but between the two are
issues which are confusing of which many of the people do not know
(the answer to). Thus, whoever protects himself from these confusing
issues has protected his Deen
[al-Bukhari, al-Muslim]

How is Makrooh recognized?
Here we shall see how a scholar recognizes something to be discouraged but not prohibited.
One: If the reward for not doing the action is mentioned, but at the same time there is no
mention of punishment.
Example

' - , = - , - - - - = ' - - ' - '
' - = - '
I am the champion of a home in Paradise for those who leave aside
argumentation, even thought they may be in the right.
(Sunan Abu Dawood)

If this is the case when you are in the right in an argument what about
when you are wrong? Imaam As-Shafiee said: I argued with one
ignorant person and he defeated me. If you argue with an ignorant
person, he will defeat you, and if you are wrong, you surely should not
be arguing. Thus, it is better to stay away from arguments altogether.
Two: A command of prohibition, which comes with a clue to show that it is not binding.
Example
The Prophet forbade the people from speaking after Ishaa.
Then one occasion he would speak after Ishaa. After Ishaa is a time
when everyone is quiet and people are sleeping. The fact that the
Prophet spoke himself after Ishaa has led scholars to permit
speaking after Ishaa under certain conditions:
1) Seeking knowledge.
2) Entertaining a guest.
3) With your spouse. In some cases, it may be the best time to talk to

69


your spouse.
Three: The Prophet might leave aside an action purposely, yet there is no proof that it
is Haraam.
Example
Verily, I do not eat reclining.

The reason the Prophet stated he did not do this was because it is
a sign of arrogance and pride. But it does not mean it is Haraam to do
this. It may be true that if you put up with certain hardships, your
reward will go up. But this does not mean you go seeking the hardships
for yourself.

5. Ibaahah (MubaaH)
Definition Something that is equally permissible to do or not to do. Neutral.
Other Names
Halaal, Hill, Mutlaq, and Jaaiz.
Yajooz (a derivative of Jaaiz, means to pass through.)
Example

> l > . l , >` L - ! ` . - ! l > l l . !
`> >l. . l ! `. !``> 1. <
%! l| :> _

Lawful to you is game from the sea and its food as provision for you
and the travelers, but forbidden to you is game from the land as long as
you are in the state of EHraam. And fear Allaah to whom you will be
gathered.
{Surat al-Maaidah: 96}

Based on the above verse, all water-game should be permissible. The
Hanafis consider specific animals impermissible from the sea like
shrimp and crabs.

How is MubaaH recognized?

70


Most people will say MubaaH and Halaal are the same thing. However, the scholars have made
a differentiation in that the Halaal is specifically found as permissible in the Quraan and
Sunnah. Anything other than that which is permissible would be classified as MubaaH. An
example of something that is Halaal would be water-game because it is mentioned in the
Quraan as being permissible. An example of MubaaH would be drinking soda and eating
apples, which are not specifically mentioned in the texts, but are permissible.
One: With the words, Azinat lakum- Laysa Janaha Alaikum or with words similar.
Example


l _ s l >` ! _ . , . - . _ , |
.. s `! < s -:l
>l ` ! 1 | . _
.&#, _l _,!!.l _

There is no blame upon you for seeking bounty from your Lord [during
Hajj]. But when you depart from 'Arafat, remember Allaah at al-
Mash'ar al-aram. And remember Him, as He has guided you, for
indeed, you were before that among those astray.
{Surat Al-Baqarah: 198}

From the above verse, it is permissible to trade during Hajj. But why is
it that water animals are permissible and land animals are not allowed
to be hunted during Hajj? It is because the people are traveling on the
water and need the water animals as food. They do not have such a need
for land animals. In fact, during Hajj time hunting, cutting down trees
or harming anything is prohibited in Makkah and preservation of the
land is encouraged. After all, Makkah is a barren land and needs its
scarce vegetation and animals. Imagine if the millions of pilgrims were
allowed to hunt and cut down trees? The Makkan people would have
nothing left.
Two: The actions of the Prophet with out any additional evidence to show that it is a
desirable or undesirable action.
Example He would sit down and stand. We know that dressing in white is

71


preferred or MustaHab because the Prophet said so. But sitting
down and standing? How about walking? These are all neutral actions.
In terms of clothing, for example, the objective in general is to cover
your Awrah (private parts) and not worry about what the material is
made of. Some exceptions for men would be dressing in silk as that has
been prohibited by the Sunnah.
Also, the Prophet liked pumpkin, however this does not mean
that it is Sunnah for us to eat it since he never explicitly recommended
it.
Three: If the Shariah does not speak about an issue, to do it or not to do it.
Example
Eating Bananas or to sleep on a cotton comforter. The ruling in this
category is that these actions are MubaaH. This is because they are
issues of Dunya that have not been mentioned in the texts.

APOI: If the Shariah specifically mentions something as permissible, it takes the term of
Halaal and it is worship to believe that is permissible.
APOI: if the Shariah does not speak about an issue of worship, then the default is Haraam
until proof is brought that the Shariah sanctions it. If the Shariah does not speak about an act
that is not worship, then the default is that it is Halaal until proof is brought that the Shariah
forbids this.

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Chapter Three: USool Principle Related to
Hukum At-Takleefee
Code one: Could something be Haraam and FarD at the same time?
Could something be Haraam and FarD at the same time? YES!
Examples
Different
intentions
Sujood, FarD to be done for Allaah. Haraam to be done for other than
Allaah.
Different times
Eating during the day in RamaDaan is Haraam. Permissible after
Maghrib.
Different people
Praying Salaah is FarD, Haraam for a person in a state of Jannabah to
pray.
Can it happen with one person, at one time, Haraam and
FarD?
YES!
Praying Maghrib on a stolen carpet: one is rewarded for the prayer and
the sin of the stolen item does not affect the Salaah, but the spot is
Haraam (where he has prayed). Some of the scholars say the prohibition
annuls the action completely. The majority of scholars, including Imaam
Ahmed, state that the Salaah is acceptable.
Examples
The case of a woman who performs Hajj without a maHram, for those
that believe having a maHram is a condition. Even if she is sinful in
such a case, it does not nullify her Hajj.

Code Two: If the Haraam cannot be abstained from unless something is
done, that something becomes FarD
If you dropped Haraam meat amongst Halaal meat and could not tell which meat was
which: the only way to avoid the Haraam is to abstain from all of that meat. Abstaining
from all the meat becomes FarD.

Code Three: Credit FarD and Cash FarD
FarD fil Adaa (Cash) do it now
FarD fidh-Dhimmah (Credit)- deferred FarD


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Cash FarD
If the conditions of a type of FarD worship are present (like fasting in
RamaDaan), the human is then required to perform it then.
Credit FarD
However, there may be something that is stopping them from
performing that act. They are still required to perform the act, but on
credit.
A woman in her menses who finds herself in RamaDaan: Credit FarD.
She then has to make up the days she missed at a later time.
Examples of Credit
FarD
Someone who fell unconscious all through the time of Asr: Credit FarD.

Code Four: The Sofa FarD, Bucket-seat FarD, and the Football Field time
FarD
FarD Muwassa (Sofa FarD)
FarD Mudayyaq (Bucket-seat FarD)
FarD Mutlaq (Football Field FarD)
FarD Muwassa
(Sofa FarD)
In the Sofa FarD, it is a FarD whose time is long enough for the person
to perform the FarD and do other things during that time. This is a
flexible, extended period of time.
However, a FarD Muwassa can become a FarD Mudayyaq if it is
delayed. For example, there is plenty of time to complete Salaatul
Dhuhr (FarD Muwassa), however, it becomes FarD Mudayyaq during
the last few minutes before Asr.
Salaah Dhuhr. Someone may pray it at the beginning of the time, or the
middle of the time, or at the end, if they were to pray it in the middle,
for example, they would have time to perform other Nafl prayers.
Someone who delays their Sofa FarD is not sinful, unless he delays it to
the point where he knows he wont be able to perform it within its time.
So if someone needs to take a shower, knowing that it will take 20
minutes to complete, and he delays his Salaah until there are only 5
times left in the time, such a person would be blameworthy.
Examples
Or someone who delays the Salaah until there is only 20 minutes left,
and then travels on the highway, knowing he wont get to stop for 45
minutes; such a person would be blameworthy.
FarD MudayyaQ
(Bucket-seat FarD)
It is a FarD whose time is long enough only for the person to perform
that particular FarD alone.
Example
Hajj: Can it be twice a year? No, one can only perform it on specific
days; its FarD Mudayyaq, bucket-seat FarD.

74


Fasting the day of RamaDaan: there is no more time to fast something
else. Everyday of RamaDaan must be fasted in its own right (no other
fast can be in conjunction with a RamaDaan fast).
FarD Mutlaq
(Football field FarD)
There are other types of worship that are not restricted by time. Instead,
they should be performed when the need arises for them: Football Field
FarD, or FarD Mutlaq/Qaajibaat Mutlaqah
Example
Kind treatment of parents, visiting relatives, commanding the good,
forbidding the evil, etc. Hajj is FarD Mutlaq because it can be
performed during any year, however once you go to Hajj, it becomes
FarD Mudayyaq because it must be performed during specific days.

Code Five: Tailored FarD and Untailored FarD
FarD Muqaddar (Tailored FarD) - determined
FarD Ghayr Muqaddar (Untailored FarD) - undetermined

Tailored FarD
(FarD Muqaddar)
Obligatory acts which the Shariah cut into prescribed sizes; no one can
change these obligatory acts into different shapes.
Example
Fajr is 2 rakaaat; zakah on gold and silver is 2.5 %; obligatory fasts in
RamaDaan
Untailored FarD
(FarD Ghayr
Muqaddar)
Obligatory acts that the Shariah did not measure out specifically.
Spending on a needy relative: it is not tailored to a specific amount; being
kind to ones parents (amount and extent of kindness are not specified); a
husband is obligated to spend on his wife, but the amount is not specified.
Examples
*If the issue of FarD Ghayr Muqaddar were to be raised to the Qaadhi,
he would estimate an amount based on the situation, so that an
untailored FarD would become a tailored FarD.
Question: What if someone misses a FarD of these two, whats the difference?
If someone
misses a FarD
Muqaddar
If someone misses a FarD Muqaddar, it becomes due even if the time
has passed. Example: Salaah, Zakah, etc. the same amount will be due.
If someone
misses FarD
Ghayr
If someone misses FarD Ghayr Muqaddar, they are not responsible for
making it up after the time has passed. Example: Spending on the needy,
rescuing a drowning person, spending on a family member, etc.

75


Muqaddar

Code Six: Specific FarD (FarD Muayyan) and Optional FarD (FarD
Mukhayyar)
Specific Most of the FarDs are specific things we should do.
Example One must specifically pray Dhuhr at a specific time
Optional
Occasionally there are FaraaiD that the person can perform by choosing
one of the options.
The Expiation (Kaffarah) of a false oath.
` > ` < , ! l l - > l > _ ` >
, ! s 1 . ` _ > . | L - ! ` s : . > , _ _
1 ! . L - l > .` . ` > ` ,
_ l ` > . ! ` . l . ! l , > |
`.l> L> > ,l _,,` < >l ..
/>l-l `>: _

For its expiation (a deliberate oath) feed ten Maskin (poor persons),
on a scale of the average of that with which You feed Your own families;
or clothe them; or manumit a slave. But Whosoever cannot afford (that),
Then He should fast for three days.
{Surah al-Maaidah:89}
Example
The sin is expiated when one performs any one of the three (feeding ten
poor people, clothing ten poor people, or freeing a slave). However, they
would be sinful and blameworthy if they did not perform any of the three.


76


Code Seven: Personal FarD and Community FarD
Personal FarD (FarD Ayn)
Community FarD (FarD Kifaayah)
Personal FarD
(FarD Ayn)

In the personal FarD, the focus is on the individual, not the action.
Example Salaah, Fasting, respecting ones parents, telling the truth.
The benefit of the personal FarD comes back directly to the person who
performs it. Those who participate in fulfilling FarD Kifaayah are
rewarded for it and remove the sin from the entire community.
Community FarD
(FarD Kifaayah)
In the community FarD, the focus is on the action, not the individual.
Example
Washing the dead body, praying on it, burying it; establishing a place
where Quraan is taught, etc.
Its called Kifaayah, because it is a FarD that volunteers from the
community come forward until there are enough of them.
Kifaayah=enough.
The community FaraaiD include all those jobs and professions that the
Muslim community needs for its well being. Examples: Medicine, Law,
Agriculture, Manufacturers, Office Management, Army, Muslim Jurists,
etc.
Why the name
Kifaayah
In these cases, the person with the right intention would be rewarded for
fulfilling their duty on behalf of the Muslim community.
APOI
If something like medicine is FarD Kifaayah for the Muslim community
and no one does their duty, one should not say My grades were not
high enough; therefore, I should not be sinful. No, the whole
community is blameworthy because they did not take the necessary
measures to assist those youth who could have done it.
Example
In a small city that has no Imaam, the community could give a
scholarship to an outstanding youth to study Islaam and become their
Imaam in 4 years. Not that everyone has to become a scholar, but they
should all pitch in to assist those who can.
A community FarD could become a personal FarD in some cases.
APOI
Suppose the community needed two Muslim judges, and there were ten
people capable of the position, it is FarD Kifaayah to fill those positions.
Example
However, if there are only two people capable of the position, it
becomes FarD Ayn for those two specific people to accept the position

77


Brothers in Madinah that thought studying Islaam is FarD Kifaayah so
they would quit. No, in their case it became FarD Ayn because they had
a chance so few others had.

Code Eight: What is needed to complete a FarD is also FarD
However, if the ruling of FarD does not apply until a certain action is achieved, that action is
not FarD
What is needed to
complete a FarD is
also FarD (as long as
you are capable of
doing it)
Some FarD actions cannot be completed unless there is another action,
before or after it, that is performed. Those before/after actions also take
the ruling of FarD in such a case in such a relationship.
If something is Waajib/FarD, anything that is attached to it, its Hukum
becomes FarD as well.
Hajj: You cannot perform it unless you travel to Makkah. Thus, the
travel is FarD, even though there is no specific proof for that.
Example
Wudoo: Normally, a Muslim is not required to have wudoo. However,
at the time of prayer, it is FarD that they make wudoo because that
FarD Salaah will not be valid without the wudoo.
If doing that act is not under your control, then it is not FarD.
Exception
The setting of the sun must occur before the Maghrib Salaah becomes
FarD.
If the ruling of FarD
does not apply until
something is
achieved, that
something is not
FarD (keyword:
ruling)
Some actions do not become FarD in the first place unless there is
another action before it that happens. That before action is not FarD.
Example
Reaching the threshold in zakah. Zakah is only due after one has
accumulated 85 grams of gold. If someone has 80 grams, it is not FarD
that they go out and purchase another 5 grams so that they have to pay
zakah.

Code Nine: Is one obliged to complete a MustaHab act once they start in it?
Hanafis Jamhoor (majority of scholars)
Opinion: Its Haraam to break a MustaHab
act once you start.
Opinion: It is permissible to break a MustaHab
act if the performer wishes.

78


Proof:
!! _%! ` `-L <
`-L l lL,. />l-


O You who believe! Obey Allaah, and obey the
Messenger (Muhammad Sal-Allaahu 'alayhe
Wa Sallam) and render not vain your deeds.
{Surah Muhammad:33}
Reply: Ayah is speaking about those who
disobey Allaah and His Messenger and
thus have their deeds nullified.
Reply: The Hadeeth means that if they
were to fast another day, they would get
the reward they seek. Non-obligatory
fasting does not carry the weight of
obligatory fasting.
Aaisha and Hafsa broke their fast one day for
some food they desired. The Prophet
told them to fast another day in its place.
Proof: The voluntary fasting person is the
Ameer of himself.

Exception: Hajj and Umrah is exempt from this.
If one starts them they must complete it.
. _>' `-l < | ..>
! ..` _ 1l>
`>'' _.> _l, `&#> _
l > !. ., _

79


. _ !. .
,. | . _ _.. `-l!, ||
_>' ! ..` _ _ l
> `!. .l. ! _>' -,
| .-> ,l. :s '#l ,l
_l l _> `&# .!>
>`.l >' 1. < ls
< : ,!1-l _
And perform properly (i.e. All the ceremonies
according to the ways of Prophet Muhammad),
the Hajj and 'Umrah (i.e. the pilgrimage to
Makkah) for Allaah. but if You are prevented
(from completing them), sacrifice a Hady
(animal, i.e. a sheep, a cow, or a camel, etc.)
such as You can afford, and do not shave Your
heads until the Hady reaches the place of
sacrifice. And Whosoever of You is ill or has an
ailment In his scalp (necessitating shaving), He
must pay a Fidyah (ransom) of either Observing
Saum (fasts) (three days) or giving Sadaqah
(charity - feeding six poor persons) or offering
sacrifice (one sheep). Then if You are In safety
and Whosoever performs the 'Umrah In the
months of Hajj, before (performing) the Hajj,
(i.e. Hajj-at-Tamattu' and Al-Qirn), He must
slaughter a Hady such as He can afford, but if
He cannot afford it, He should observe Saum

80


(fasts) three days during the Hajj and seven
days after his return (to his home), making ten
days In all. This is for Him whose family is not
present at Al-Masjid-al-Haraam (i.e. non-
resident of Makkah). And fear Allaah much
and know that Allaah is Severe In punishment.
{Surah al-Baqarah:196}

Code Ten: Just like there is FarD Kifaayah, there is MustaHab Kifaayah.
Salaah At-Taraweeh, giving salaam, adhaan, and iqaamah for the congregational prayers.
Ibn Taymiyyah said that if all the people of a village agree to not perform a MustaHab
Kifaayah, then it is a major sin. For example, if a masjid deliberately decides not to call
the adhaan, this is Haraam because the people are deliberately abandoning the adhaan.
Example: The Prophet would not attack an enemy village until Fajr. If he heard the
adhaan, the mission would be aborted. Otherwise they would attack. This is proof of what
Ibn Taymiyyah said because saying the adhaan is MustaHab Kifaayah.
If you are the only one in your community who observes MustaHab fasts (i.e. on
Mondays and Thursdays) and you remind the community, this fulfills the MustaHab
kifaayah and carries with it reward.
Code Eleven: Is MubaaH an Islaamic Injunction?
MubaaH is two kinds
Type One: Things that Allaah explicitly said were permissible. These are Islaamic injunctions
from the point of view that one must accept their permissibility.
You are accountable to submit to the permissibility of that which Allaah made permissible. (i.e. If
someone makes shark meat Haraam to himself, this is going against an injunction. You are
obligated to believe that shark meat is permissible.)

81


Examples
> >l . `>,l `!-L !-. >l !.ll
`> >l. . l ! `. !``> 1. < %!
l| :> _

Lawful to You is (the pursuit of) water-game and its use for food - for
the benefit of yourselves and those who travel.
{Surah Al-Maaidah:96}
!! _%! ` 1`-l!, l> >l ,
- | ! l.` >l. ,s l> .l . ``>
| < `>> ! `
O You who believe! Fulfill (your) obligations. lawful to You (for
food) are All the beasts of cattle except that which will be announced to
You (herein), {Surah Al-Maaidah:1}
Type Two: Things that were not mentioned in the Islaamic text. If it is other then a type of
worship, then the default is that it is permissible. This type is not an Islaamic injunction.
Example
What Allaah made Halaal in His book is Halaal. And what He made
Haraam in His book is Haraam. As for what he kept silent about, those
things are from His grace, so accept this grace from Allaah. Verily,
Allaah was never to have forgotten anything.

Code Twelve: A MubaaH may be FarD at its root

Example: Eating bananas. You can eat bananas or oranges or apples or not. However,
eating is FarD. It is not permissible for someone to go without food until they die.
Generally speaking, exercise is MubaaH but it can be upgraded to MustaHab if it is done
for health reasons.

82


Anything that is not mentioned in the Quraan or Sunnah is MubaaH due to the
assumption of continuity.
Code Thirteen: Depending on ones intention, a MubaaH may become
Waajib, MustaHab, Makrooh or Haraam.

Definition of Ibaadah: All that Allaah loves and is pleased with, whatever in statements
or actions, whether external or internal.
Example of MubaaH becoming
MustaHab: Eating food to gain strength for Jihad or Ibadaah.
MustaHab: Performing a Halaal job in order to have no need for Haraam money.
FarD: If the FarD is not completed unless this MubaaH is performed.
Haraam: If the Haraam will be arrived at by way of this MubaaH action. Ex. Selling
grapes to a wine maker. Or watering plants when humans are dying of thirst.
Haraam: If one takes on an extra job just so they can afford more lottery tickets.

Code Fourteen: The default Ruling in Ibaadah is Haraam unless stated in
Shariah; in other than Ibaadah the default is MubaaH.

Authentic worship in Islaam comes in defined shape and form. If someone makes
something up, it will be rejected.
In devotional acts, the default is that an act of Ibaadah is Haraam until proven otherwise
because Allaah says:
`> `>l. .l `$! `>' ' ! ,-l < .,
1l l .l >Ll ! _,.l | ! .
! _, ls .l .1.`.. l!, >l _`. l _

83


! % _ ` _ > : > : l l l > >
. . l > - . _ . l > ` ` l ! _ . L .
,s !>.` . | < "s '>

This day I have perfected for you your religion and completed My favor upon you and
have approved for you Islaam as your religion.
{Surah al-Maaidah:3}.
An instruction coming from other than Allaah with regards to the deen will not be
accepted.
The tale of Wheres your proof? If you know the issue and the default, you will know
who needs to bring proof.
o Example: Whats your proof that wearing a fur coat is Halaal? In this case, the
person who is asking must bring proof that wearing a fur coat is Haraam because,
since it is not a matter of ibaadah, the default ruling is MubaaH.
o Example: Whats your proof that spinning around and reciting Allaah Hayy 2500
times is bidah? In this case, this matter refers to an issue of ibaadah, therefore it
is by default Haraam and proof needs to be provided to prove to the contrary.
If someone claims that something is Haraam, something that is just a human thing to do,
they have to bring proof.
o Example: Sitting on chairs during an Islaamic class
o Example: Eating with spoons.
It goes both ways, some people make Haraam what Allaah makes Halaal. (i.e.
Extremism in eating of meat products.)
l `: _%! : < > |
: `- _,.. _%! , !.!, _%! ``

84


>!, `,, l-
Say: "Bring forward your witnesses, who can testify that Allaah has forbidden this. Then if
they testify, testify not you (O Muhammad ) with them. and you should not follow the vain
desires of such as treat Our Ayaat (proofs, evidences, verses, lessons, signs, revelations, etc.) as
falsehoods, and such as believe not In the Hereafter, and they hold others as equal (in worship)
with their Lord."
{Surah Al-Anaam:150}

85


Chapter Four: Second: Al-Hukum Al-
Wadee/Declaratory Law
A communication from the Lawgiver, which enacts something into a
cause (Sabab), a condition (Shart), or a hindrance (Maani) to something
else.
Definition
It could also mean to connect two things by enacting one of them to be a
cause, condition, or hindrance to the realization of the other.
Example
When children are playing tag and one says, The teachers desk is
home free, This is Hukum Wadee. The child connected two things-the
desk with their game-and made the touching of the desk a condition for
a specific ruling.
Note
The different varieties of Hukum Wadee are known to be legal rulings
(i.e. a proof from the lawmaker should be provided to make something
Sabab, Shart, or Maani).

Different kinds of Hukum Wadee
Sabab (Cause)
Shart (Condition)
Maani (Hindrance)

1. Sabab (Cause)
Definition
An attribute that is evident and constant (meaning it can be measured),
which the Lawgiver has tagged as the indicator to a Hukum in such a
way that its presence necessitates the presence of the Hukum and its
absence means that the Hukum is also absent.

86


l.l l$! _:l || _.s l
>l | >l l :
Perform as-Salaah (Iqamt-as-Salt) from mid-day till the darkness
of the night (i.e. the Dhuhr, 'Asr, Maghrib, and Ishaa prayers), and
recite the Qur'aan In the early dawn (i.e. the morning prayer). Verily, the
recitation of the Qur'aan In the early dawn is ever witnessed (attended by
the angels In charge of mankind of the Day and the night).
{Surah Al-Israa: 78}
Here, the Sabab for prayer times is the sun.
Murder is a Sabab for the death penalty.
Theft is a Sabab for the punishment.
The consummation of a marriage (not the contract) is a Sabab for the
obligation to provide the dowry and financially support the wife. Even
if a man stipulates otherwise, it is still binding upon him.
Examples
Traveling, which is evident and constant, is a Sabab for shortening
prayers.

If the Sabab exists, the Hukum must exist.
More Examples:
1. Janaba is a Sabab for making ghusl waajib.
2. Owning the minimum amount of wealth is a Sabab for obligating zakah.
3. Damage is a Sabab for obligating repair.
4. Divorce is a Sabab for final separation between husband and wife.
5. The sun passing the zenith is the Sabab for obligating Dhuhr prayer.
While a human can do an action that is a Sabab, Allaah makes it a Sabab.
2) Shart (Condition)
Definition
An evident and constant attribute whose absence necessitates the

87


absence of the Hukum, but whose presence does not automatically bring
about its object (mashroot).
Presence of a valid marriage is a precondition (Shart) for divorce. But it
does not mean that when there is a valid marriage, it must lead to
divorce.
Examples
Presence of wudoo: It is a condition (Shart) of Salaah. However, just
because someone has wudoo does not necessitates Salaah.
Types of Shart
Logical Shart
Life is a condition for someone to be obligated to learn.
Linguistic Shart
If you come home on time, I will give you a cookie.
Shariah Shart
Wudoo is a condition for Salaah.
The difference
between Shart and
Rukn (pillar)
In both cases the action cannot take place without it. But in Shart, the
condition is separate from the action. In rukn, it is within the action.
Example Wudoo is Shart for Salaah. Doing sajdah is Rukn (pillar) of Salaah.
Note
It is possible for a person to make a Shart (condition) binding on
themselves. For example, a man or woman can write in the marriage
contact, I will not travel out of the country. If he or she does, it could
invalidate the contract.

Examples:
1. One whole year is a Shart for Zakah.
2. The presence of a walee is a Shart for the marriage contract.
3) Maani (Hindrance)
Definition
An act or an attribute whose presence either nullifies the Hukum or the
cause (Sabab) of the Hukum. In either case, the result is the same,
namely that the presence of the Maani means the absence of the Hukum
Example
A child steals a crayon from the teacher. Because (a) he is not Mukallaf
and that (b) the crayon is below the threshold for stolen property and
that (c) crayon was not safeguarded, all three facts are Maani
(hindrance) to the ruling of Hudood punishment.
Loop Holes?
It should be noted that a Muslim should not purposely intend to apply a
Maani to run a loophole on Allaahs Law.

88


A person should not purposely plan to spend a certain amount such that
the Zakah threshold before the end of the year doesnt require him to
pay it.
Example
Or a person should not intentionally surround themselves with foul
smell (e.g. smoking) so that going to the Masjid becomes undesirable in
that case.

Example:
1. Smelling of onions is a Maani from going to Jummuah prayer.
2. Illness is a Maani from obligating fasting during RamaDaan.
A Maani has the power to nullify/veto a Hukum or a Sabab
One: When a Maani
vetoes a Hukum
The presence of this type of nullifier directly nullifies the verdict
(Hukum), even if the cause (Sabab) and the condition (Shart) are both
present.
Example A father murders his son. Should the father receive capital punishment?
Hukum Someone who kills should be killed in punishment for the crime.
Sabab Murder. In this case it took place.
Condition It must be done with premeditation. This was present.
Maani (nullifier)
A father is not to be killed in retaliation for murdering his son (based on
the Hadeeth).
Note
The father may be severely punished with other punishment, but it
should not reach capital punishment because of this Maani.
Two: When a Maani
vetoes a Sabab
A Maani can veto and nullify a Sabab (cause) in the sense that its
presence makes the cause (Sabab) null and void.
Example Case: A nephew murders his uncle to get the inheritance.
Sabab Sabab (cause) for inheritance: That a person must be one of the
sanctioned inheritors as dictated in the Quraan.
Maani (nullifier)
A murderer does not inherit from the one he murdered.
Verdict
Thus when the cause (Sabab) is nullified, the Hukum itself is nullified.
So, he wont go to jail with 2.3 million in his bank account from the
inheritance. He gets nothing.
Example Case: Someone has a lot of gold.
Sabab Sabab for Zakah: It must pass the threshold and must be in his
possession for one year.

89


Maani (nullifier)
Maani (nullifier): He has debts.
Verdict Thus, if he has enough money for Zakah but he owes people the
majority of what he ahs, he does not have to pay Zakah on that gold

Debts that consume most of ones wealth (immediate debts) is a Maani from Zakah. But, if
one still owns a minimum amount for Zakah (the nisaab), one must still pay Zakah on the non-
debt money.


90


Chapter Five: Takleef (Accountability)
1.) Mahkoom Feeh, Mahkoom Alayh
The literal meaning of Takleef is to place a burden, thus Hukm Takleefee place a certain degree
of burden or hardship on the Mukallaf. One who is Mukallaf is obliged to follow all the rules of
Shariah and is accountable for them. They are also subject to capital punishments; basically
this person is legally competent for all the rules.
An example of takleef is Salaah. We pray 5 times a day and although we may love prayer,
there is still a certain degree of burden to go through the process of making Salaah, such as
stopping your work and making wudoo.
Definition Literally: To place a burden on someone that includes a degree of
hardship.
Example As a term: It is an order- whether a command to do or a
forbiddance from doing- with conditions that apply to either the
one command or the action that is being requested. As follows:
a. It must be known that this is a commandment/prohibition from
Allaah.
Conditions that apply
to the action, not the
person commanded:
Mahkoom Feeh
b. It must be possible for the action to be performed/abstained
from.
All the rules of Shariah are in the bounds of our capacity. Allaah
will not make something obliged on us which would be
beyond our capacity.
Example
` > l < . ! | ` ` - ! l ! ! . , s l , !
! . . , , ! . > ! | . ! > L ! !
!, `>. !ls .| ! .l> ls
_%! _ !l, !, !l>. ! !L !l
., s !s s !l !> !9l

91


!.! ls 1l _l
Allaah does not charge a soul except [with that within] its
capacity. It will have [the consequence of] what [good] it has
gained, and it will bear [the consequence of] what [evil] it has
earned. "Our Lord, do not impose blame upon us if we have
forgotten or erred. Our Lord, and lay not upon us a burden like
that which You laid upon those before us. Our Lord, and burden us
not with that which we have no ability to bear. And pardon us; and
forgive us; and have mercy upon us. You are our protector, so give
us victory over the disbelieving people." (Surah Al-Baqarah:286)
a. He must be of sane mind.
_ _ - = -' -' = ' ' ` = ' - ' - -' = = - , - - ,
_ - = ' - = , , - = - ' = . - , _ - =
RasulAllaah said, The pen was raised from three people:
The sleeping one until he awakes, the child until he reaches
puberty, and the insane one until his faculties return to him.
[Ahmad, Abu Dawud, An-Nasai and Ibn Majah]
Conditions that apply
to the person, not the
action: Mahkoom
Alayh
b. He cannot be sleeping or in a state of forgetfulness (not
unconscious sleeping or sickness).
'' , - ' - , ' = '' _ ' - , = . - - =
- , = _ - = ' , ' ' - ' = ' ' ' - '
' ' . , '' ' - ' _ ' - ' ' - '' , - ' - ' - ' -
_ ' - ' - , ' = '' = - ' ' - - ' - ' -' = - - - - -
' ' - = , - - ' = _ ' - - ' = - ' ' '' ' - , -' - , =
= - , - - , ' - ' = _ ' - - - - - '' , - , ' = '' _ ' -
' - ' ' ' ' - - -' + - - - _ - = -' = - - - = ' '
, - ' ' ' ' - , ' = '' _ ' - ' =' -, - - + '
'' , - - ' - , ' = '' _ ' - ' - ' ' - ' -
' ' - - - - ' - - = - ' - - - - - = '' , - ' , -
' = - - - - ' - ' - ' + ' = , - ' - , - ` ' - , -
'' '' _ ' - ' - , ' = - ' '' ' - _ ' - ' ' -' ' '
- ' ' ' -' _ - ' - ' _ - -' + - ' ' -' - - ' + ' - , '

92


' '' ' ' - ' ' ' -'
' -, , ' + - - ' -' ' ' - ,

Abu Huraira reported that: when the Messenger of Allaah (may
peace be upon him) returned from the expedition to Khaibar, he
travelled one night, and stopped for rest when he became sleepy.
He told Bilal to remain on guard during the night and he (Bilal)
prayed as much as he could, while the Messenger of Allaah (may
peace be upon him) and his Companions slept. When the time for
dawn approached Bilal leaned against his camel facing the
direction from which the dawn would appear but he was overcome
by sleep while he was leaning against his camel, and neither the
Messenger of Allaah (may peace be upon him) nor Bilal, nor
anyone else among his Companions got up, till the sun shone on
them. Allaah's Messenger (may peace be upon him) was the first
of them to awake and, being startled, he called to Bilal who said:
Messenger of Allaah I may my father and mother be offered as
ransom for thee, the same thing overpowered me which
overpowered you. He (the Holy Prophet, then) said: Lead the
beasts on: so they led their camels to some distance. The
Messenger of Allaah (may peace be upon him) then performed
ablution and gave orders to Bilal who pronounced the Iqama and
then led them in the morning prayer. When he finished the prayer
he said: When anyone forgets the prayer, he should observe it
when he remembers it, for Allaah has said:" And observe the
prayer for remembrance of Me" (Quraan. xx. 14). Yunus said:
Ibn Shilab used to recite it like this:" (And observe the prayer) for
remembrance." [Sahih Muslim]
However, unlike the insane person, a sleeping or forgetful person
has to make up what they missed during their state of
sleep/forgetfulness. And if they damage anything in such a state,
they are held accountable.
c. Cannot be in a state of intoxication. In order to be legally
qualified, you should not be intoxicated.
d. He/She must have reached the age of puberty.
e. Cannot be under a state of compulsion.

2. What do you mean Compulsion (Ikraah)?

93


Definition To force someone to do something using the
element of fear. (life, safety-physical, or
severe loss of property)
There are two types of Ikraah (compulsion)
One: Lesser Compulsion It is a compulsion that does not lead a
person to lose his/her life, nor does it lead to
that person losing a limb if their body. This
type of compulsion is not immediate, but the
person is still a Mukallaf.
Ruling In such a case, the person cannot be
considered under compulsion.
Two: Major Compulsion It is compulsion where the person fears for
his/her life or harm inflicted on a limb of the
body or ones wealth. It depends what they
have been commanded to it.
Ruling In such a case, the person carries the same
ruling as the one who is not obligated to
perform the action.
Example: If one makes an oath that they
shall never swim in their brothers
swimming poor and then Albert picks him
up and tosses him into the pool, it does not
break their oath. Someone threatens to kill
your son if you do not burn your neighbors
car, or steal from your neighbor. In this
case you are allowed, but still are
responsible for compensation.
However, you are not allowed to take any
ones life in order to save your own. This is
because your life is not more valuable. The
same prohibition would also apply for
taking a womens honor in order to save
your life.

Signs of puberty:
There are three signs of puberty that males and females have in common:
Nocturnal emission (wet dreams)
Growth of coarse hairs around the private parts.
Reaching the age of fifteen

94


The signs of the coarse hairs and the age of 15 are both derived from the incident of Banu
Quraidah, who broke their treaty with the Muslims in the Battle of Khandaq (The Trench) and
joined the disbelievers. Their punishment was that all their male men would be killed and these
two signs were used to determine the males from the children.
In the case of females there is a fourth sign, which is:
Menstruation
All the ones with above signs will be qualified and subjected to the rules of Shariah (they can
perform Hajj, even if they do it the day after, Salaah, fasting). Also when committing any
crime, they will be responsible for its repercussions.
l., .l _.> | -l, _l>l | .`. . :' `-! ,l|
!l!. !`.| , > _ l !s -.`.l
_ l ,1 !l -l!, | .- ,l| ! ,l.
<!, !,.>
And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive
in them sound judgment, release their property to them. And do not consume it excessively and
quickly, [anticipating] that they will grow up. And whoever, [when acting as guardian], is self-
sufficient should refrain [from taking a fee]; and whoever is poor - let him take according to
what is acceptable. Then when you release their property to them, bring witnesses upon them. And
sufficient is Allaah as Accountant. {Surah An-Nisaa: 6}
3. Are Non-Muslim adults Mukallaf (accountable)?
Opinion One: No

95


There is no meaning to the branches of Islaam
being compulsory upon them because if they
do it, it will not be accepted. There is no
meaning for them to perform when they are
not Muslim.
- - ' = ' - ' ' - ' ' ' ' - - + , ' -
RasulAllaahsaid, Do you not know
that accepting Islaam destroys all sins which
come before it? (Saheeh Muslim)
Proof
If they become Muslim, they do not have to
perform all the Salaah and Fasting etc. that
they missed.
Option Two: Yes
Proof It is not illogical to say they are responsible
for the branches of Islaam. They are
responsible for the branches and responsible
for the key to the acceptance of those
branches, which is the Shahaadah.

96


, `!1 ,|
_ `&#> l ! < ls
_!l _> ,l _ _!L.`
l| , _ | < _.s
_s _,l-l _
In it are clear signs [such as] the standing
place of Abraham. And whoever enters it
shall be safe. And [due] to Allaah from the
people is a pilgrimage to the House - for
whoever is able to find thereto a way. But
whoever disbelieves - then indeed, Allaah is
free from need of the worlds. {Surah Aal-E-
Imran:97}
Proof
_s _,>l ! `>l
1 l! `l ,
_,#.l `l , `-L
_,>`.l ! `_ _
_,.!' ! ,> ,
_l _.> !9. _,1l

97


About the criminals, [And asking them],
"What put you into Saqar?" They will say,
"We were not of those who prayed, Nor did
we used to feed the poor. And we used to enter
into vain discourse with those who engaged
[in it], And we used to deny the Day of
Recompense. Until there came to us the
certainty." {Surah Al-Muddaththir:41-
47}
Mujrimeen is another name for the
disbelievers, as mentioned in the above
verses. Also, the fact that the speakers deny
the Day of Judgment is another hint in the
verses that these are disbelievers.
Benefit of this issue If they die in a state of Kufr, not only will
they be punished for their rejection of
Islaam, but also for all the branches that they
were negligent of. If they become Muslim, it
does not mean that because they do not have
to make it all up that they were not
commanded in the first place. It just means
that Allaah forgave them. In the
hereafter, they will be punished twice.
What is the ruling of Ahlul Fatra, Non-Muslim who never received an appropriate invitation
to Islaam?
In the rules of Dunya, they are considered non-Muslims. In the rules of the Aakhirah, this is up
to Allaah

. This can also include people who live in a big city, see Muslims and live in
their own world. They know nothing about Islaam due to their blindness. We consider them
non-Muslims, but they are also Ahlul Fatra. This also includes people who get the message,
but it is ambiguous and not clear. These people are not Mukallaf. And Allaah

knows
best.
The Hujjah or proof against them applies after they receive the clear message. This is when
they do not have any excuse. But at the same time, you cannot give an ambiguous message
of Islaam to people, and think that you have conveyed the message.

Terms related to a Mukallaf
Adaa: To perform something on time. You wake up and pray Fajr on time at 5:30 AM sharp.
Eeaadah: To repeat something in its legal time because of some deficiency or that the action
became invalid. A bunch of brothers go to a new Masjid and perform a long Salaah, in the
wrong direction of Qiblah. They repeat the Salaah in the right direction in the prayers due

98


time.
Qadaa: To perform something out of its legal time. You make up one of the fasts of
RamaDaan, outside of RamaDaan.
SaHeeh: To describe a valid act incurred by the Mukallaf. It is any act that you have done
correctly like marriage, with all of the acts pillars fulfilled.
Faasid (just a small part of an act is void/invalid) and BaatTil (whole actual act as completely
invalid): To describe an irregular and void (respectively) act incurred by the Mukallaf.
Some Ulamaa differentiated acts of worship into partly nullified like Faasid and nullified in
total like Baatil. An example of Faasid would be to pray and have a major component of the act
missing like Khushoo. An example of BaaTil would be the whole act of prayer being invalid.
Something to think about
_%! ` _L. ,l , < , < _L. ,l1l
Verily, in the remembrance of Allaah do the hearts find rest. (Surat ar-Rad: 28)
Issue: Missing Salah deliberately. This is a major sin, and it is so serious that some of the
scholars (i.e. a minority opinion) stated that the one who does this is a kaafir (Majmoo
Fataawa wa Aqaalaat Samaahal al-Shaykh Ibn Baaz, 10/375). The one who does this has to
repent sincerely, according to scholarly consensus.
With regard to making up the prayer, there was a difference of opinion among the scholars as
to whether or not it would be accepted from him if he makes it up afterwards.
Most of the scholars said that he should make it up and that his prayer is valid, although he is a
sinner (i.e., if he does not repent- and Allaah knows best).
As Shaykh Ibn Uthyameen quoted from them in al-Sharh al-Mumti, 2/89, the view favored
by Shaykh al-Islaam ibn Taymiyah (may Allaah have mercy on him) is that it is not valid, and
that it is not prescribed for him to make it up. He said in Al-Ikhtiyaaraat (34): It is not
prescribed for the one, who misses a prayer deliberately to make it up, and the prayer, if he
makes it up, is not valid; rather he should do a lot of voluntary (naafil) prayers. This is the
view of a group among the Salaf.
One of the contemporary scholars who regarded this view as more correct is Shaykh ibn
Uthaymeen (may Allaah have mercy on him); he quoted as evidence from the words of the
Prophet ,
, ' = , ' ' ' - = . - = - , + ' - -
Whoever does an action that is not in accordance with this matter of ours (i.e, Islaam), will
have it rejected. [Agreed Upon]
Narrated AbuHurayrah:
Anas ibn Hakim ad-Dabbi said that he feared Ziyad or Ibn Ziyad; so he came to Medina and
met AbuHurayrah. He attributed his lineage to me and I became a member of his lineage.

99


AbuHurayrah said (to me): O youth, should I not narrate a tradition to you? I said: Why not,
may Allaah have mercy on you? (Yunus (a narrator) said: I think he narrated it (the tradition)
from the Prophet: The first thing about which the people will be called to account out of their
actions on the Day of Judgment is prayer. Our Lord, the Exalted, will say to the angels -
though He knows better: Look into the prayer of My servant and see whether he has offered it
perfectly or imperfectly. If it is perfect, that will be recorded perfect. If it is defective, He will
say: See there are some optional prayers offered by My servant. If there are optional prayers to
his credit, He will say: Compensate the obligatory prayer by the optional prayer for My
servant. Then all the actions will be considered similarly. [Sunan Abu Dawud]
4. Rukhsah (consession) vs. Azeemah (Strict resolute)
Azeemah is that Salaah must be observed and the Rukhsah is that if one is traveling, he or she
can shorten the Salaah. If water is not available, then Tayammum becomes Azeemah.
Definition Literally: Facilitation and ease. They say Rakhisah As-Sir,
if it becomes cheaper and easier to buy that commodity.
As a term (Concessionary Law-Allowance) A law that is modified
due to the presence of extenuating factors.
Case study of Rukhsah Tayyammum (Shaykh said he does not consider it as
Rukhsah, unless you cannot use the water- sick, either
extremely hot and cold).
Situation Suppose you have water available BUT you are sick and
the water would increase your sickness OR water available
is being sold of abnormal prices.
Verdict To do Tayyamum in one of these two cases would be a
Rukhsah.
What if you did not have
water altogether?
It would not be considered a Rukhsah. It would be
considered Azeemah (Strict resolute); i.e. you have to do
it.

The absence of Takleef (accountability) does not mean the absence of liability. Thus, in a
scenario where a child breaks a window, even though the child is not responsible for
compensating the window, someone is still liable for compensation. Similarly, a person who is
drunk is not accountable for the accident, but still is liable for the damage. The difference
between accountability and liability is that accountability is before Allaah .





101


Part Three: The
Sources of
Islamic Law



103

Chapter One: Identify the Sources of Shariah
1. What are the Sources of Islamic Law?
Definition: principal proofs of the Shariah and Islamic Law in which an indication is
found to help deduce a practical rule (hukm).
We have learned the values of Fiqh such a Waajib and Haraam. But the next question is
where do we get these values from? In an Ayah or Hadeeth, there is a specific
indication that tells you if there is a Sabab or Maani or establishes Waajib or Mustahab
and so on. [Indications come from textual implications from the Arabic language]
Sources about which there is unanimous agreement: Quraan & Sunnah.
Sources about which there is general agreement (Jumhoor): Ijmaa (Consensus) &
Qiyaas (Analogical Reasoning).
Proof:
!! _%! ` `-L < `-L l |` `> |
.s. `_: ` || < l | . `. <!, l
> ,l ,> _.> !. _
O you who have believed, obey Allaah and obey the Messenger and those in authority among
you. And if you disagree over anything, refer it to Allaah and the Messenger, if you should
believe in Allaah and the Last Day. That is the best [way] and best in result.
[Surah An Nisaa: 59]

Sources about which there is general disagreement (this is not including all of the
sources of general disagreement):
1. Statement of the Sahaabi
To what degree should we accept his or her statement?
2. Urf (Custom)
To what extent do you accept custom and tradition? For example, the way the
Arabs tied their turbans around their headsShould we tie all of our turbans in
the same fashion?
3. Istihsaan (Juristic Preference)


104

The instance when a jurist takes a personal preference to the weaker opinion
regarding a certain matter.
4. Maslaha Mursala (Consideration of Public Welfare)
There is no clear indication in the Quraan and Sunnah regarding certain issues,
but the Ulema figure an issue out by establishing Maslaha Mursala (like the
issues of establishing prisons, hospitals, universities, organizing certain ways,
etc.)
5. Istishaab (Presumption of continuity)
If there is no specific ruling for something that has been known before Islam, do
we presume the continuity of the original ruling for it?
6. Sadd Al-Dharaai (Blocking the Means)
If something is permissible or Mustahab, but leads one to fall into something evil,
he/she should not practice that permissible thing, as it may lead to a Haraam.
7. Sharu Man Qablaana (Laws revealed prior to the advent of Islam)
There are laws or rules that you can find in the Bible or Tawraah, like the stories
of the Prophets. Are we liable to follow their laws as well? And are we obligated
to follow them?
Adillah Shariyyah
The sources of law are also called Adillah Shariyyah (Legal Evidences or Proofs).
Not all sources of law cover Adillah Shariyyah. The Quraan, for example, is divided into
three major themes:
1.) Aqeedah
2.) Verses related to Commandments
3.) History & Seerah

Any chapter that you read would only cover one of these themes, or cover the multiplicity of
themes altogether. But when we study the theory of Islamic Law, we are concerned with the
verses related to Commandments.

It is important to mention that all the sources of Islamic Law obtained their authority as being
referred to in the main source of law, the Quraan- The Word of Allaah. So although some of
these sources are disputed, they all spring back to the main sourcethe Quraan. The
authority of the Sunnah can also be found in the Quraan.


105


2. Dividing Adillah Shariyyah
In respect to their source:
o Adillah Naqliyyah (Transmitted Proofs): A proof which is founded in transmission
of trustworthy carriers and arrived to us through chains of narrators. No rational
justification is required in its favor. We received them from chains of narrators. We
take the credibility from the source itself. The person who transmitted should be a
reliable person.
Examples: Quraan, Sunnah, Ijmaa and statement of the SaHaabi.
o Adillah Aqliyyah (Rational Proofs): A proof which was founded in reason and
needs to be rationally justified. Like Al-Qiyaas (analogical reasoning): Establishing
the prohibition ruling on drugs. We dont have any transmitted proofs that
specifically prohibit drugs, but we compare it to something weve received through
transmitted evidence. [In the Quraan we have the prohibition of wine and in the
Sunnah we have the prohibition of intoxication]. Based on this an analogy justifying
the prohibition of drugs is made. This was made rationally; therefore it is called a
rational proof. [This is based on credibility of source]
Examples: Qiyas, Istishaab, and Sadd Al-Dharaai.
In respect to their authority:

o Adillah Mustaqillah (Independent Proofs): A proof that is classified as an
independent evident Asl. It is a proof of its own right. The Ulema agreed on the
Ijmaa of the SaHaaba and disagreed of the Ijmaa of later generations.
Examples: Solely the Quraan, Sunnah and Ijmaaany other source is not
considered independent (they would be considered dependent proofs).
o Adillah Muqayyadah (Dependent Proofs): A proof that is classified as dependent
evidence. It is to say that its authority is derived from one of the three independent
proofs. The fact that the Quraan itself is the actual words of Allaah makes the
Quraan a primary authority. Also the Sunnah tells us to follow Ijmaa because:

RasulAllaah said So stick to my Sunnah and the Sunnah of the right-
principled and rightly-guided successors who come after me.(Sunan Abu
Dawood)

This hadeeth establishes the collective ijmaa of the SaHaaba.


106

If the SaHaaba agree on something, it becomes an independent evidence in
its own right. Its not that their opinion can be traced to the Prophets
statement, but whatever they establish is based on their unanimous
agreement.

Example: Qiyas


In respect to the power they contain:

o Qaati (Definitive): It indicates clear injunctions of the proof in respect to its
transmission and meaning. Like the Quraan.
Example: Establish Salah [this is a definitive meaning that you have to do this]
1. The Ayah is Qaati in respect to its transmission because it is a part of the
Quraan.
2. It is also Qaati in respect to the clearance of the injunction it enacts which is
to establish Salah.
Here we are establishing the authority of the Quraan and Sunnah.
o Dhanni (Speculative): It indicates a speculative clearance of the proof in its
transmission or meaning or both:
Example:
1. Speculative transmission: Solitary reports (Hadith Ahaad). Many of such
ahadeeth have been defined as speculative.
2. Speculative meaning: The word Qur in the Quraan (2:228) in respect to the
waiting period of a divorce, it can be interpreted as blood or purity. What is
the meaning of Qur? Ulema disagree (some Arabs take the word as blood
and some take it as purity). Based on the two different meanings, the Ulema
established two different opinions on the terms of the waiting period. Some
say you need to count three periods of purification and some say you need to
count three periods of blood (there is a big difference: either extending or
shortening the periodwith purification you would extend the waiting period,
with blood, you shorten the waiting period). It is an ayah of the Quraan but
they are speculative about the meaning of it.




107

1lLl `.,. _.!, .l. ` > _ _.> !
_l> < _l> | _ _` <!, l > _.l`-, _>
_, ,l | !>l.| _ `. %! _,ls -RQ!,
!>ll _,ls > < s >>

Divorced women remain in waiting for three periods, and it is not lawful for them to conceal
what Allaah has created in their wombs if they believe in Allaah and the Last Day. And their
husbands have more right to take them back in this [period] if they want reconciliation. And due
to the wives is similar to what is expected of them, according to what is reasonable. But the men
have a degree over them [in responsibility and authority]. And Allaah is Exalted in Might and
Wise.
[Al Baqarah: 228]


108

Chapter Two: Sources which there is Unanimous
Agreement: The Quraan

Definition: The speech of Allaah revealed to the Prophet Muhammad (saw) in Arabic over
the course of his Prophethood to prove his prophecy.

It is the speech of Allaah and not a creation. We do not discuss how it is the
Speech of Allaah or how He decreed a certain matter. As Muslims, we hear, obey, and do
not question. In the Quraan, Allaah says:

| > _ _,:l !>.` >! _.> _`. l < . -l,
! ,l !, l-

If one of the mushrikeen comes to you for protection, give them protection until they listen to
Kalam Allaah (the speech of Allaah)... (at-Tawbah:6)

It was revealed to Rasul in Arabic. Translations of the Quraan are not considered
revelation.
It was revealed over the course of his Prophethood to prove his Prophecy, excluding
anything before or after his Prophethood. It is a complete Quraan and was completed
over 23 years. Allaah challenged the disbelievers to produce something similar to the
Quraan and no one has been able to do thisit is not possible.
Even the non-believing Arabs during the time of the Rasul, like Abu Jahl, used to
hide themselves from the people and listen to the Rasuls recitation of the Quraan,
and they tried to sneak away before anyone could see them. They had never heard
anything like it and they could not hide their fascination with the Quraan, because it was
beyond their imagination. There is absolutely no comparison of the Quraan being
recited and understood in Arabic.
The Quraan:


109

a. It is inimitable (miraculous), its recitation considered an act of worship. It was
transmitted to us by continuous testimony (Tawaatur).
b. It is preserved in writing in the order of the Mushaaf, which starts with Surat Al-Fatihaa
and ends with Surat An-Naas.

| > _ _,:l !>.` >! _.> _`. l < .
-l, ! ,l !, l-

And if any one of the polytheists seeks your protection, then grant him protection so that he
may hear the words of Allaah. Then deliver him to his place of safety. That is because they
are a people who do not know.
[At Tawbah: 6]


Quraan vs. Hadith Qudsi: Hadith Qudsi (sacred Hadith) is another form of the speech of
the Messenger of Allaah (saw) in which he narrates a concept directly from Allaah. It is not a
Quraan and therefore its authenticity is subject to scrutiny just like any other Hadith.

' - = '' - , - = : ' - , ' = '' _ ' - '' , - ' :
" _ '' - ' - - '' ' : , - ' ' - = . - = - -' = ' -' _ - = ' -
- - - , = - ."

'-- - ) ='- - ='- (

o On the authority of Abu Hurayrah (RA) who said that the Messenger of Allaah (saw)
said: Allaah (glorified & exalted be He) said, I am so self-sufficient that I am in no
need of having an associate. Thus he who does an action for someone elses sake as
well as Mine will have that action renounced by Me to him whom he associated with
me. [Muslim & Ibn Majah]

When the Prophet (SAWS) narrates ahadith Qudsi, he says Allaah said, but when
he narrates the Quraan, he doesnt say thathe immediately recites the Quraan as it


110

comes from Allaah (SWT). But when he wanted to alert the people that this was not
Quraan, he would say Allaah azza wa jaal said
The ulema have a great dispute of the value of Hadith Qudsi vs. Quraan. Some of
them say the meaning is coming from Allaah (SWT) and the wording from the Rasul
(SAWS)some say that both wording and meaning come from Allaah azza wa jaal,
but the Prophet was instructed not to add this to the Quraan. There are different
interpretations each of Hadith Qudsi and the Quraan.
Overall we consider Hadith Qudsi as a Hadith, NOT Quraan. And if you say Hadith,
it can be altered in report, it can be a weak Hadith and can also be an authentic
Hadithnot like the Quraan.
Authority of the Quraan
1. It is the actual speech of the Creator (SWT), and therefore is free from errors and human
deficiency. The authority of the Quraan comes from the Quraan itselfthis ayah alone
is enough to establish the authority of the Quraan. So that whatever Allaah says, you
obey.
| > _ _,:l !>.` >! _.> _`. l < .
-l, ! ,l !, l-
And if any one of the polytheists seeks your protection, then grant him protection so that he may
hear the words of Allaah. Then deliver him to his place of safety. That is because they are a
people who do not know.
[At Tawbah: 6]


2. The Lord (SWT) guaranteed the preservation of the Quraan, and therefore it remained in
its original form since the stage of revelation. If you know this is the speech of Allaah,
you know this is an authentic proof.
!| _> !l %! !| l L>' _
Indeed, it is We who sent down the Quraan and indeed, We will be its guardian.
[Al Hijr: 9]



111

3. The Quraan with no doubt was transmitted to us in continuous testimony (Tawaatur)
which makes it Qaati (Definitive) in its constancy and leaves no room for speculation
about its authenticity. Tawaatur: There are hundreds of thousands of people who have
transmitted the Quraan to us since the time of the Rasul (SAWS).

4. The Quraan was revealed to rule by and judge according to its ruling.

!| !l ,l| .>l _>l!, >`>.l _,, _!l !. ,1 <
_>. _,!ll !.>
Indeed, We have revealed to you, [O Muhammad], the Book in truth so you may judge between
the people by that which Allaah has shown you. And do not be for the deceitful an advocate.
[An Nisaa: 105]

!,. ,ls !, _l _l!, _,-l _,-l!, !,
!, _.l _.l!, _`>l '_!. _ X.. .,
! `&! _ `l > !, < ,l`! ` lLl

And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear
for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his
right as] charity, it is an expiation for him. And whoever does not judge by what Allaah has
revealed - then it is those who are the wrongdoers.
[Al Maidah: 45]
Language of the Quraan
What is the language of the Quraan?


112

The Quraan explicitly states that all of it is communicated in pure Arabic.
Proof
1l `l- ` l1 !| l-` ":, !.l
%! >l` l| >s !.l s
_,,

And We certainly know that they say, "It is only a human being who
teaches the Prophet." The tongue of the one they refer to is foreign, and
this Quraan is [in] a clear Arabic language.
[An Nahl: 103]

If it were not for the Quraan, the Arabic language would have
disappeared (today there are hundreds of different dialects of the Arabic
language). The only thing that preserved the Arabic language was the
language of the Quraan.
The literal meaning of lisaan is tongueit is used as a metaphoric
expression for language; so calling the language a tongue means that it
is a (clean, pure, Arabic) spoken language.
What is the dialect of the Quraan?
The Arabic spoken in the Quraan is the language of Qurayshthe tribe of the Messenger of
Allaah (SAWS).
Proof
! l ! _ | , l . ! . l ` , , _
.` < _ '!: _ '!: '-l
`>>l

And We did not send any messenger except [speaking] in the language
of his people to state clearly for them, and Allaah sends astray
[thereby] whom He wills and guides whom He wills. And He is the
Exalted in Might, the Wise.


113

[Al Ibrahim: 4]
What is Harf (dialect) in respect to the Quraan?
It is one of seven instances of variant readings in different Arabic dialectseach dialect has
different pronunciations because they have developed this by association. (The Rasul SAWS said
the Quraan was revealed in 7 different harfand we DO believe in all of them).
Words in different dialects were often read with different voweling or declensions that affected the
grammatical positions and sometimes also the meaning of the text.
Uthman (R) was faced with an issue when the east, north, west and southern Arabs met together
and almost fought over the pronunciations of the Quran. He was told that he needs to do
something about it, so he gathered the same people who wrote the first Quraan during the time of
Abu Bakr as-Siddique to standardize the Quraan. He instructed them to use the Harf of the
Quraysh, but even then, the harf has different qira'a. But how would he reconcile the different
qira'a? So what they did was write the Quraan without dots (tashkeel). The harf of the Quraysh
was used, and everything else was left asidewriting the script without dots satisfied a general
harf. This is called Uthmani script or calligraphy, regardless of the pronunciation; its all the
language of the Quraysh.

Example
!.l !.l `-L! ! `> !, !,.
> _ < < s '>>

[As for] the thief, the male and the female, amputate their hands in
recompense for what they committed as a deterrent [punishment] from
Allah . And Allah is Exalted in Might and Wise.
(Surat A-Maidah: 38)

- The word aydiyahuma (their hands) in Surat Al-Maidah [5:38] on
the punishment of theft.
- Ibn Masood read the word to be aymaanahuma (their right hands).
Proof
On the authority of Ubayy Ibn Kaab, the Messenger of Allaah
said: The Quraan was revealed in Seven Harfs dialects. [Ahmad
and Tirmidhi]
What is the authority of the Harf (dialect)?
- Hanafis: It is speculative evidence in the interpretation of the Quraan.
- Maalikis and Shaafiees: It is rejected altogether.


114

What is Qiraa'ah "a recitation" in respect to the Quran?
- It is an accent in the Arabic language found in one particular Harf in which the Quraan is
pronounced based on the manners of speech the different Arab tribes had spoken (can also be
considered a type of accent in pronunciation).
- There are seven different recitations for the Quraysh Harf such as Hafs on the authority of
Aasim and Warsh on the authority of Naafi.
Example
The word in Surat Al-Mumtahana 60:3:
- Hafs reads: On the Day of Judgment
He will (Yafsilu) judge between you
- Warsh reads: On the Day of Judgment, It will be judged
(Yafsalu) between you
What is the authority of different Qiraa'aat 'recitation'?
Qiraaaat are
considered an
authentic Quraan if
they meet three
conditions of validity:
1. The Qiraaah should have an authentic chain of narration in which the
chain of narrators was continuous (Mutawaatir chain of narration).
2. The Variations in Qiraaaat should match known Arabic grammatical
constructions.
3. The Qiraaah should coincide with the script of one of the copies of
the Quraan distributed during the era of the third khalifah Uthman



Notes:
The meanings of the Quraan found in languages other than Arabic are called
translation. A translation does not have the legal authority of the Quraan/not
considered a mushaff.
Tafsir (commentary) is a form of interpretation and subject to debate, all based on the
sources utilized to reach a particular commentary for a particular text. There is no
tafsir that we can take as the most authentic tafsir. They are all different based on the
themes (some emphasize Arabic language, fiqh, etc.)
Aayaat Al-Ahkaam (Legal Verses)
What are they?
An Aayah (verse) is classified as one of the legal verses if it contains a
Hukm (practical ruling), even if this occurs in a non-legal context. The
Aayaat al Ahkaam do not have to be full verses. It can be just one
command within a long contextbut anything that has a practical


115

ruling is considered Aayaat Al Ahkaam.
Example
Hukm occurs in a legal context:
! ! l , _ | L l 1 . ` l . ! L l 1 _ l - :
> . l - . 1 < , >` _
_.`, >` | _,.! :>, , ,l.
`> < _ -. `> < 1 lL .
. -l < ,> -, ,l

O Prophet, when you [Muslims] divorce women, divorce them for [the
commencement of] their waiting period and keep count of the waiting
period
[At Talaq: 1]
Hukm occurs in a non-legal context:
| !l-> ,l ,!. _!ll ! _ !1
,| l.` !s || ,| -`| L
_., _,!Lll _,>-l _l >.l

And [mention] when We made the House a place of return for the people
and [a place of] security. And take, [O believers], from the standing
place of Abraham a place of prayer. And We charged Abraham and
Ishmael, [saying], "Purify My House for those who perform Tawaf
and those who are staying [there] for worship and those who bow and
prostrate [in prayer]."


116

[Al Baqarah: 125]
Total number?
According to Imam Abu Bakr Mohammad Ibn Al-Arabi Al-Maliki
(543H) they are identified over eight hundred, whether they occur in a
legal context or a non-legal context (In his book Ayaat Al Ahkaam).
The ulema differ, some say 800, some say 400.
What the different types of Aayaatul Ahkaam?
First Ahkam I'tiqaadiyyah: those which relate to belief.
Example
l. .>l | .-. <
`>` !, .`. !, `-1. `- _.> .
> .,s />| | `l: | < _l> _,1l
_>l .> !--

And it has already come down to you in the Book that when you hear the
verses of Allaah [recited], they are denied [by them] and ridiculed; so do
not sit with them until they enter into another conversation. Indeed, you
would then be like them. Indeed Allaah will gather the hypocrites and
disbelievers in Hell all together
[An Nisa: 140]

We take from this aayah (a prohibition): it is Haraam to stay with those
who mock the Quraan (unless you are sitting there for Dawah).
Second Ahkaam Akhlaaqiyyah: those which relate to morality.
Example
!! _%! ` `. _ _.s >
,> . "!. _ !. _.s _> ,> _.
'l. />. ',!. 1l!, _, `


117

.l -, _ _ l `. ,l`! `
Ll

O you who have believed, let not a people ridicule [another] people;
perhaps they may be better than them; nor let women ridicule [other]
women; perhaps they may be better than them. And do not insult one
another and do not call each other by [offensive] nicknames. Wretched is
the name of disobedience after [one's] faith. And whoever does not repent
- then it is those who are the wrongdoers.
[Al Hujraat:11]
Third Ahkaam Amaliyyah: those related to practical legal rulings.
Types of Ahkaam
Amaliyyah
Ibadaat: those pertaining to ritual acts in dealing with the Creator such
as Salah.
Muamalaat; those pertaining to dealing with others (the creation) such
as sales, transactions, dealing with people, buying and selling, trading,
marriage contracts, etc (Usool al Fiqh deals with the actions of you and
Iwith respect to both Allaah SWT & the people).
Example
Ibadaat: And establish Salah [al-Baqara 2:43]

Muamalaat:
_%! l! ,l `1 | ! `1
%! L,. _L:l _ _l ,l !, l!
| ! l , _ . ` l , > < l , _ > l , _
l> Ls _ ., .! `&# ! l ` ||
< !s ,l`! >. !l !,


118

$#>

And Allaah has permitted trade and forbidden usury [Al-Baqara
2:275]

Note: Al-Ahkaam Al-Amaliyyah both in Ibadaat and Muamalaat can be identified as the
corpus juris of the Quraan (i.e. the body of the practical law in the Quraan).

Makki and Madani
Definition
The Quraan revealed in two distinct periods of the Prophets
mission in Makkah and Madinah.
What is its
Importance to the
legislative process?
1. It gives an insight into the context and circumstances in which the
Ayaat were revealed.
2. It gives an understanding to the incident of Naskh (abrogation).
3. It facilitates a better understanding of the characteristic features of
the Quraanic legislation.
Makki Madani
Differences
between Makki and
Madani
The part of the Quraan which
was revealed prior to the
Prophets migration to
Madinah, regardless of the
locality in which it was
received.
The part of the Quraan which
was revealed after the Prophets
migration to Madinah,
regardless of the locality in
which it was received.
General Content
- Basic principal of law and
guidelines of religion.
- Most of the rules were of the
Aamm (general) and later on
were qualified.
- Elaboration on the Makki part
of the Quraan and
supplementing its basic
guideline.
- It comprised the legal rules
and regulates the various
aspects of life.
Example
_%#l `
`- _%#l
_%#l l.1`
!, lL | <


119

`> ! < >l
! !, l ,.>


Tell those who believe, to
forgive those who do not look
forward to the Days of Allaah:
it is for Him to recompense (for
good or ill) each People
according to what they have
earned.
{Surat Al-Jathiyah:14}
ls ``. '1l _

To those against whom war is
made, permission is given (to
fight) because they are
wronged and verily, Allaah is
Most powerful for their aid.
{Surat Al-Hajj:39}

Note: The distinction between the Makki and Madani parts of the Quraan is based on
information that is provided mainly by the Companions and the following generation. The
Prophet himself has said nothing on the subject.

Characteristics of Quraanic Legislation:
1. Brevity and Details
What is the largest
part of the
Quraan?
The larger part of the Quraan consists of general principles, and in
certain areas, the Quraan provides specific details. It is all
comprehensive in that context.
Example
! _ , _ L ,L >!> | '
: ! l > ! L ! l > . _ : _` . | | ,
:>



120

We have nothing neglected from the Book
{Surat Al-Anam:38}

! % > l Y l > ! _ > - ! .
.` || !.l _1. _, , >,
`_: l. _

It is He Who hath created for you all things that are on earth
{Surat Al-Baqarah:29}
How was the
brevity of the
Quraan detailed?
Most of the brevity of the Quraan is explained and elaborated by
the Sunnah.
Example
,l!, ,l !l ,l| %! _,,.l _!ll !
,l| l-l `>.

With clear signs and Books (We sent the Messengers). and we have
also sent down unto You (O Muhammad ) the Reminder and the
advice (the Qur'n), that You may explain clearly to men what is
sent down to them, and that they may give thought.
{Surat An-Nahl:44}

And give zakat is the injunction of the Quraan. The details on
how to fulfill the command are provided in the Sunnah.
What areas of the
Quraan are
detailed?
The Quraan is specific and detailed on matters that are deemed
unchangeable i.e. devotional matters (Ibaadaat).
Example The details and specific shares of the Inheritance law:


121

`>.` < l %#l `: 1> _,:
| _ !. _,.. _l !:l. ! . | l
> !l `.l , >l > !.
'_.l ! . | l l $! | `l _> `&! $!
. , l.l | l `&! >|
'_.l _ -, . _.` !, _ !,
, ! . ' , l > / - ! .
< | < l s l ! > > !

Allaah instructs you concerning your children: for the male, what is
equal to the share of two females. But if there are [only] daughters,
two or more, for them is two thirds of one's estate. And if there is only
one, for her is half. And for one's parents, to each one of them is a
sixth of his estate if he left children. But if he had no children and the
parents [alone] inherit from him, then for his mother is one third. And
if he had brothers [or sisters], for his mother is a sixth, after any
bequest he [may have] made or debt. Your parents or your children -
you know not which of them are nearest to you in benefit. [These
shares are] an obligation [imposed] by Allaah . Indeed, Allaah is
ever Knowing and Wise

{Surat An-Nisa:11}
What areas of the
Quraan are
briefed?
In the matters that are liable to change i.e. civil transactions
(Muaamalaat), the Quraan is briefed and merely lays down the
general guidelines.


122

Example
_%! l! ,l `1 | ! `1
%! L,. _L:l _ _l ,l !,
! l | ! l , _ . ` l , > < l , _ >
l , _ > l s L _ , . ! . # &` !
l ` || < !s ,l`! >.
!l !, $#>

Those who consume interest cannot stand [on the Day of
Resurrection] except as one stands who is being beaten by Satan into
insanity. That is because they say, "Trade is [just] like interest." But
Allaah has permitted trade and has forbidden interest. So whoever has
received an admonition from his Lord and desists may have what is
past, and his affair rests with Allaah . But whoever returns to
[dealing in interest or usury] - those are the companions of the Fire;
they will abide eternally therein.
{Surat Al-Baqarah:275}

Note:
The Quraan warns against the regulation of everything by the express terms of divine
revelation, as this is likely to lead to rigidity and cumbersome restrictions.
!! _%! ` l`. _s !: | ,. >l . | l`.
!.s _,> `` `1l ,. >l !s < !.s < s 'l>
O you who believe! Ask not questions about things which, if they were expounded to you, would
become troublesome for you. But if ye ask about things when the Quraan is being revealed, they


123

will be made plain to you: Allaah will forgive those: for Allaah is Oft-Forgiving, Most
Forbearing.
{Surat Al-Maidah:101}
Allaah did not detail every matter within the revelation in order to give the Shareeah room.
A ruling of the Quraan may be conveyed in a text which is unequivocal and clear (Qaati)
and that is a definitive text. Or in a language that is opening to different interpretations
(Dhanni, speculative).
2. Gradation of Revelation (Tanjeem)
What is the
gradation of
revelation?
The Quraan was revealed piecemeal over a period of twenty-three years in
relation to particular events.
Proof
! || ! ls _ s l-> !, .

Those who disbelieve say: Why is not the Quraan revealed to him all at
once? Thus (is it revealed), that We may strengthen your heart thereby, and
We have rehearsed it to you slow, well-arranged stages, gradually.
{Al-Furqan:32}
Why
gradually?
1. To give the believers an opportunity to reflect and memorize.
2. To facilitate continuous contact with the Divine.
3. To give the believers time enough to spread the word and follow the
injunctions.
How the
revelation was
gradual?
1. Considering the events that were experienced throughout the years of the
revelation.
2. In response to a question the Prophet was asked.
3. Observing the rule of abrogation (Naskh).
Example for
the Rule of
abrogation
The stages of prohibition of wine:
1.
_ ,. l s .. !
!.> | ,l 1l l1-



124

And from the fruit of the date-palm and the vine, ye get out wholesome
drink, and food: behold, in this also is a Sign for those who are wise.
{Surat An-Nahl:67}





2.
,l`. s l .l ! ".| ,,
_ _!ll !.| _ !- l`.
! 1` -l l _,,` < `>l
l-l `>.. _
They ask thee concerning wine and gambling. Say: In them is great sin, and
some profit for men; but the sin is greater than the profit."
{Surat Al-Baqarah:219}

3.
! ! ! % _ ` . 1 , l . l . ` > > . _
. - l ! . 1 l >` ` , ! | s ! , , > . _ . - . . l
| . _.` ls !> > > _ 1!-l
`.`.l !.l l > ! . -. !,L
>.! >`>', > | < l s s


125


O ye who believe! Approach not prayers while intoxicated, until ye can
understand all that ye say
{Surat An-Nisa:43}

This ayah limited the times during which one could consume alchohol (i.e.
could not drink after Maghrib prayer because Isha approaches quickly
thereafter).

4.
!! _%! ` !| `' .l ,!.
l ` > _ _ s l : L _ ! > . , l - l >
>l. _

O you who have believed, indeed, intoxicants, gambling, [sacrificing on]
stone alters [to other than Allaah ], and divining arrows are but defilement
from the work of Satan, so avoid it that you may be successful.
[5:90]

What legislative benefits do we gain from this concept?
1. The historical context of the legislation.
2. The chronological order of the legislation process.
3. The determination of abrogation and other conciliations in case of textual conflicts.

Al-Ashaa was a famous Arab poet who rejected Islaam because of the prohibition of
alcohol. He was known for his excessive drinking and was on his way to Madinah to become a
Muslim when he was told that alcohol had recently been prohibited. Al-Ashaa decided to
return home and remain there for one year, to drink a large amount of alcohol during that time,
and to then become a Muslim. Al-Ashaa died of intoxication before the year ended.
We do not use the methodology in which wine was prohibited in the Quraan when
teaching new Muslims (ie. dont gradually wean them off alcohol- must be complete from the


126

start). Otherwise, one would be belittling the commandment.
3. Asbaab An-Nuzool (The Occasions of Revelation)
Definition
The phenomenology of the Quraan which explains the events that are
related to the revelation of particular Aayaat (verses).
Why is it important?
1. Knowledge of words and concepts of an Aayah is incomplete without
knowledge of context.
2. Understanding the wisdom behind the legislation of a particular law.
What is the source
of Asbab An-
Nuzool?
A reliable report related to us by a SaHaabi who has been present at the
time of the occasion.
General Text vs.
Particular Occasion
From a legislative perspective, what is considered in regard to general
text which was revealed for a particular reason, is it the generality of the
text or the particularity of the occasion?
Majority of jurists rule by the generality of the text unless another clue
is provided to suggest otherwise.
Example
_ < _.l ,l> !> >.: ||
< < _`. !`!> | < _. ,.,

Allaah has indeed heard (and accepted) the statement of the woman
who pleads with you concerning her husband and carries her complaint to
Allaah; and Allaah hears the arguments between both sides among you;
for Allaah Hears and Sees (all things).
{Al-Mujadilah:1}

The ruling of Dhihaar was made general even though the legal text
revealed was for a particular occasion between Khawla bint Thalaba
and her husband Aws bin As-Saamit.

The reliable sources of Asbab an-Nuzool are an ayah of the Quraan and the sunnah of the
Prophet .
4. Ratiocination in the Quraan (Taleel)


127

Definition
It is rationale of an injunction, the purpose and the objective of the
law. It is the search for the effective cause of legislation for a
particular given law.
A cause (Sabab) is called Illah. Illah is also used to identify the
wisdom (hikman) or the benefit accrues with a particular law.
How Illah is identified?
1. The Quraan sometimes justifies the ruling with reference to Illah and the benefits
accrue with it.
Example
> _ . . L ` . , , ! .
l. | ,.l. "_> < _ 'l.

Of their good take alms, that so you might purify and sanctify
them
{Surat At-Tauba:103}
2. Jurists have identified the Illah through reasoning and Ijtihaad.
Example
!! _%! ` !| `' .l ,!.
`l _> _ s _L:l ,.>! >l-l
>l. _
O ye who believe! Intoxicants and gambling, (dedication of) stones,
and (divination by) arrows, are an abomination of Satan's
handiwork: eschew such (abomination), that ye may prosper.
{Surat Al-Maidah:90}
The process of inference conducted by jurists concluded that
intoxication is the main Illah for the prohibition of wine.

Rulings are not based on hikmah; they are only based on constant attributes, which are the illah
and sabab.
Note:


128

The authority of the Quraan as the principal source of the Shariah is absolutely independent
of ratiocination.
The explanation of the Illah in the Quraan in most occasions is designed to make the
Quraan easier to understand.


129

Chapter Three: Sources about which there is
Unanimous Agreement: The Sunnah
The Sunnah has many technical definitions according to the different uses of the terminology
used by the Fuqahaa, Muhaditheen, Theologians and Usoolees (Scholars of Jurisprudence).
Terms one should generally be familiar with:
Hadith Al Alee: very high chain of narrations (very authentic)less people narrating
the Hadith, more likely that is correct
Nazee: more chains of narrators
Ijaaza: a certificate that goes back to the Rasul
Ahlus Sunnah Wal Jam3a: collective aqeedah and Deen and methodology of the Rasul
SAWS and his companions

Definition
All that is narrated from the Prophet , his acts, his sayings, and
whatever he tacitly approved.

Linguistic: A path or way of life. The Fuqaha say that the sunnah is
Mustahab/recommended. Theorist/jurist (Usoolees) say sunnah is
anything received from the Prophet , in the form of statement,
act, saying.

As a source of law
I left two things among you. You shall not go astray so long as you
hold on to them: the Book of Allaah and my Sunnah.
Example:
An act, Sunnah
Fi'liyyah (actual)
Aisha narrates, The Messenger of Allaah used to eat
with his right hand and drink with his right hand.
A saying, Sunnah
Qawliyyah (verbal)
Omar narrates, Deeds are judged by there intentions
A tactic approval,
Sunnah
Taqreeriyyah
Anas narrates, Handshaking was a common practice
amongst the Companions of the Messenger of Allaah.

For the jurists they are very particular to find out everything.
Sunnah vs. Hadith
Hadith is a narration of the conduct of the Prophet.
Sunnah is the example and the law that is deduced from the conduct
itself.


130

The definition of Sunnah used in this study is that of the Usoolees which serves the concept of
legislation.
Hujjiyyah of the Sunnah (The Proof-Value)
Definition
Hujjiyyah is the proof-value of the Sunnah as a source of law into the
legal theory.
The conduct of the Messenger of Allaah was meant to establish
a rule of Shariah and constitute a binding ruling.
Where does the Sunnah take its Hujjiyyah from?
The Quraan
! ! < ls .&! _ 1l T ll
%! 1l .l _,>.l _ ,.l
> ! ' , , _ s ! > ! . 9 > ` l `
` ! 9 > s ! . . 1 < | <
: ,!1-l

And whatever the Messenger gives you, take it, and whatever he
forbids you, abstain from it.
{Surat Al-Hashr:7}
The Sunnah
Indeed I was given this Quraan and something similar to it with it
(Sunnah).
Practice of the
SaHaabah
It was reported that the first Muslim Caliphs have issued instructions
to their deputies and judges around the state in which they asked
them to follow the Sunnah of the Prophet whenever they could not
find the answer in the Quraan
Ijmaa'
Muslim jurists are unanimous on the fact that Sunnah is a source of
Shariah and that it stands on the same footing as the Quraan.



131

The Hujjiyyah (proof value) of the Sunnah becomes binding once the authority of that
particular text of the Sunnah is determined i.e. Sahih or Hasan and Mutawaatir (continuous
reports) or Ahaad (solitary report).
Classification of Sunnah and values: Legal vs. Non-Legal
What is a legal and what is a non-Legal Sunnah?
Legal Sunnah,
Sunnah
Tashree'iyyah
The exemplary conduct of the Prophet , be it an act, saying or
a tacit approval which incorporates the rules and principles of the
Shariah.
Non-legal Sunnah,
Sunnah Ghayr
Tashree'iyyah
The natural activities of the Prophet such as the manners in
which he ate, slept, dressed and such activities which do not seek to
constitute a part of the Shariah or the legal norms.
What is Hujjiyyah of each type of Sunnah?
Legal Sunnah
It establishes a Hukm Sharee.
All commands and prohibitions that are imposed by the Sunnah are
binding on each Muslim.
Example
Waajib: Pray as you see me Pray. [Bukhari]
Mustahab: Was it not for my fear of imposing a difficulty on my
Ummah I would have ordered that the Miswak be used for every
Salaat, and delay in Isha prayer. [Bukhari]
Non-legal Sunnah
The majority of the jurists consider it an indication for permissibility
(Mubaah), unless other evidence suggests otherwise.
Example
The preference of the Prophet to a certain food: Anas reports,
I saw Allaahs Messenger going after the pumpkins around the dish,
so I have always liked the pumpkin since that day [Bukhari]
Anyone will be rewarded for his/her intentions if he/she follows the
sunnah out of the love of the Prophet .
Khusoosiyyaat An-
Nabi
Certain matters which are particular to the person of the Prophet
.
Example
Multiple marriages above the limit of four, connected fasting and the
prohibition of remarrying his wives after his demise.
What is the ruling
of the
Khusoosiyyah of
the Prophet?
If the Quraan addresses the Prophet with an exclusive term
such as O ye Messenger then it is to the Prophet along,
unless there is conclusive evidence to suggest otherwise.


132

Coincidental actions of the Prophet such as his prayer inside the Kabah in a certain
position, praying in a specific location on his journeys or taking the pledge on Hudaybiyah
besides a particular tree do not constitute any ruling according to the vast majority of jurists.


133

Chapter Four: Sources about which there is
General Agreement
First: Ijmaa or consensus of Opinion
Definition
The unanimous agreement of the Mujtahids of the Muslim Ummah
of any period following the demise of the Prophet Muhammad
on any matter.
Is the Ijmaa' a
factual or a
relative evidence?
Majority of Muslim jurists accept the Ijmaa as a universal
consensus, while other jurists accept it as a valid concept in a relative
sense not as a factual evidence.
The only Ijmaa which they accept as a factual evidence is the Ijmaa
of the SaHaabah before they were dispersed.
What is the value
of the Ijmaa?
1. It reflects the natural evolution and acceptance of ideas in the life
of Muslim Ummah.
2. It ensures the correct interpretation of the Quraan and Sunnah
3. It enhances the authority of rules that are of speculative origin. For
example the prohibition of a simultaneous marriage to the close
relative of ones wife.
4. It represents an authority of its own right once it is established
There are two types of Ijmaa':
Explicit Ijmaa' of
Ijmaa' Sareeh
The Ijmaa in which every Mujtahid expresses his opinion either
verbally or by an action.
Tacit Ijmaa' or
Ijmaa' Sukooti
The Ijmaa in which some of the Mujtahids of a certain age express
there opinion concerning an incident while the rest remain silent.

Conditions of Ijmaa
What are the requirements of a valid Ijmaa'?
Condition one
There should be a number of Mujtahids available at the time when the
issue is encountered.
Condition two
There should be a universal consensus of all the Mujtahids on the issue
encountered. The presence of any dissenting view precludes the
possibility of the Ijmaa
Condition three
The agreement of the Mujtahids on the juridical opinion must be
demonstrated by their expressed opinion on that particular issue.



134

Second: Qiyas or Analogical Reasoning
Definition
The application to a new case (Far) on which the law is silent of the
ruling (hukm) of an original case (Asl) because of the effective cause
(illah) which is common to both.
What are the essential requirements (Arkaan) of Qiyas?
First: Asl
The original case on which a ruling is given in the text and which
analogy seeks to extent to a new case.
Second: Far' The new case on which a ruling is needed.
Third: Illah
The effective cause which is an attribute of the Asl and is found to
be common to the original and the new case.
Fourth: Hukm
The rule governing the original case which is to be extended to the
new case.
Example one:
Wine vs. Narcotic
drugs
Asl: Wine drinking
Far: taking narcotic drugs
Illah: Intoxicating effect
Hukm: Prohibition
Example two:
Gold vs. Bank
notes (currency)
Asl: Paying Zakah on legal amount of gold.
Far: Paying Zakah on currency made of bank notes or other
metals.
Illah: the value of all commodities.
Hukm: Obligatory.

Conditions of Arkaan Al-Qiyaas
Conditions of Asl
1. Asl must be constituted in the Quraan and Sunnah and according to
the majority of jurists by Ijmaa
2. Asl may not be constituted by a former Qiyas.
Conditions of Far'
1. The new case may not be covered by the text or Ijmaa.
2. The effective cause of the analogy must be applicable to the new
case in the same way as to the original case.
Conditions of Illah
1. The effective cause must be a constant attribute (Mundhabit) i.e.
applicable to all cases without being affected by differences of
persons, time, placer and circumstances.
2. The Illah must be evident not hidden.
3. The Illah must be a proper attribute and bears a reasonable
relationship to the law of the text.


135

4. The Illah must be an objective quality which can be transferable to
other cases.
5. The Illah must not be an attribute that runs counter to or seeks to
alter the law of the text.
Conditions of
Hukm
1. The Hukm must be of a practical ruling of Fiqh.
2. The Hukm must be operative, not abrogated.
3. The Hukm must be rational or the Hukm is clearly given in the text
itself.
4. The Hukm must not be confined to an exceptional situation or to a
particular state of affairs.

Question: How do jurists identify the Illah from the given text?


136

Chapter Five: Sources about which there is
General Disagreement
1. Statement of the
SaHaabi
Should the statement of a single SaHaabi which does not contradict
with the general opinion of the community of the SaHaabah be
considered as a proof of its own right and be given a precedence over
other rules such as Qiyas?
2. Urf (Custom)
It is recurring practices that are acceptable to people of sound nature,
reasonable as to be taken in consideration in order to constitute a valid
basis for legal dicisions.
3. Istihsaan
(Juristic
Preference)
It is setting aside an established analogy in favors of an alternative
ruling that serves the ideals if justice and public interest in a better
way.
Should the Mujtahid use his personal discernment in deciding the
ruling of an issue in contradiction to the established Qiyas?
4. Maslaha
Mursala or
Istislaah
(Consideration of
Public Welfare)
It is consideration that is proper and harmonious with the objectives
of the Lawgiver; it secures a benefit or prevents a harm, and the
Shariah provides no indication as to its validity or otherwise.
Does this concepts fall under innovation or independent enactment
of law? Can Maslaha Mursala be observed in devotional matters?
5. Istishaab
(Presumptions of
Continuity)
It is a rational proof that may be employed in the absence of other
indications; specifically, those facts or rules of law and reason, whose
existence or non-existence had been proven in the past and which are
presumed to remain so for lack of evidence to establish any change.
6. Sadd Al-
Dharaa'I
(Blocking the
Means)
Blocking the means to an expected (evil) end that is likely to
materialize if the means towards it is not obstructed.
7. Shar'u man
qablana (Laws
revealed prior to
the advent of
Islam)
Are the rules revealed before the advent of Islam applicable to the
Muslims?