By Sheikh Mohammad Ramadan al-Qadri
Hukm Shari’ or a Sharia Ruling is established as ‘a communication from the Law Giver (Allah and His Messenger).’ (Taftzani: At-Talweeh, p.40). When the communication is made in the form of a demand or option, the Hukm is called “Al-Hukm al-taklifi (defining law or primary law). If the communication is made in the form of an enactment of a Cause or condition only, it is called al-Hukm al Wadi (declaratory law).
Hukm Takleefi is “such a Hukm that has within it the demand of doing or not doing something or in which there is indifference or discretion.” (Al-Ghazzali in Al-Mustasfa at 1:65). In other words, “Primary or defining law is the law which requires the demand of commission or omission of an act (from a person legally capable) or which gives him the discretionary option between omission and commission of a particular act.”
The commandments of the five pillars of Islam, all other secular or religious acts, rights and obligations which are positively performed, exercised and discharged fall within the category of defining laws. The prohibiting laws fall within the same limb as they are based on the omission of an act. For example, the prohibition of murder, adultery, drinking, theft and many more are also covered by the category of defining law. The implementation of these laws is the sole justification of their formulation.
All laws that provide the option of choice between two alternatives are the nature of ‘Takhyeer.’ The designation of them is self-explanatory as man has the freedom and authority to commit or omit them. All laws that are in the nature of ‘Mubaah’ (permissible) fall within this category.
The most important point to note is that the Defining or Primary Law is divided (according to the Hanafi School of Islamic Jurisprudence) into 11 grades on the basis of the strength of demand and the scales of value contained in the demand. Here is a table that shows the grades from top (strongest demand) to bottom (weaker demands):
| Grades of Commission | Grades of Omission |
| English: Obligatory Arabic: فرض “Fardh” |
English: Forbidden Arabic: حرام “Haraam” |
|
English: Imperative |
English: Condemned Arabic: مكروه تحريمي |
| English: Mandatory recommendation Arabic: سنة موكدة “Sunnah Mu’akkadah” |
English: Disapproved Arabic: اساء ت “Isaa-at” |
| English: Directory recommendation Arabic: سنة غير موكدة “Sunnah Ghayr Mu’akkadah” |
English: Improper Arabic: مكروه تنزيهي “Makrooh Tanzeehi” |
| English: Commendable Arabic: مستحب “Mustahab” |
English: Uncommendable Arabic: خلاف الأولى “Khilaaf-al-Awla” |
*Indifferent/ permissible/discretionary جائز / مباح Ja’iz or Mubaah
Each classification and its parallel possesses the same strength of demand but in the different direction (eg. Haraam is parallel to Fardh as they both hold the same legal strength but Haraam is a grade of omission while Fardh is a grade of commission).
Mubaah is optional and belongs to both – it may be committed or omitted, and its legal consequences follow the same pattern.
If there is a binding demand from the lawgiver to do something and it is definitive (Qat’i) in text and meanings, it will give the legal value of Fardh. If it is a biding demand to abandon something with the same level of proof as Fardh, it will be Haraam.
Haram is also further divided into two;
- Haram li-dhatih (which is forbidden for its own sake (such as wine, gambling) and,
- Haram li Ghayrih (which is forbidden for an external reason such as, marrying a woman only to make her legal for another man (tahlil).
Fardh and Haraam are two extreme grades of commission and omission proven from (Qati’ al-Thabut & Qati’ al Dalalah) definitive communication from the Law Giver; Allah and His Prophet (peace be upon him). All other grades established from divine communication are lesser than definitive status.
Very interesting! Please make more articles in the future!
Al-Hukm al-taklifi and Hukm Takleefi are the same just to check the spelling? Sunnah prayers fall into Mustahab as well in the Hanafi maadhab no and is there consequences not doing them alltogether for example!
Jazakallahkhair for the kind remarks and important questions.
Taklifi and Takleefi refer to the same word, just with different English transliterations. Sometimes our jurists use the word “Mustahab” for the sunnah acts. There are no consequences if mustahab are missed altogether, just deprivation from reward.