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Unformatted text preview: oved and rectified. If, for example, a contract of sale is concluded without assigning a specified price, it is possible to specify the price (thaman) after the conclusion of the contract and thus rectify the irregularity at a later opportunity, that is, as soon as it is known to exist or as soon as possible. [51. Abu Zahrah, Usul, pp. 51-52; Abu `Id, Mabahith. pp. 103-104; Qasim, Usul, pp. 236-238.] III. The Pillars (Arkan) of Hukm Shar'i The hukm shar'i, that is, the law or value of Shari'ah, consists of three essential components. First of all, the hukm must have been authorised by the hakim, that is, the Lawgiver; it must also have a subject matter which is referred to as mahkum fih, and then an audience, namely the mahkum `alayh, who must be capable of understanding or at least of receiving the hukm. We shall treat each of these under a separate heading, as follows. III.1 The Lawgiver (Hakim) The ulema are unanimous to the effect that the source of all law in Islam is God Most High, whose will and command is known to the mukallaf either directly through divine revelation, or indirectly by means of inference, deduction and ijtihad. The Qur'an repeatedly tells us that 'The prerogative of command belongs to God alone' (Al-Imran, 6:57). Law and justice in the Muslim community must derive their validity and substance from the principles and values that the Lawgiver has sanctioned. This is the purport of the Qur'anic text in sura al-Ma'idah (5:45 and 5:49) which declares to be unbelievers those who refuse to accept the authority of the divine law. Even the Prophet does not partake in the prerogative of command, as his command, or that of the ruler, the imam, the master or the father for that matter, does not constitute binding authority in its own right; instead, obedience to such individuals Principles of Islamic Jurisprudence ~ Kamali 296 is founded in the command of the Lawgiver. Neither is human intellect, or 'aql, alone, a source of law in its own right. [52. Ghazali, Mustasfa, I, 53; Abu Zahrah, Usul, p. 54.] The ulema are in disagreement, however, as to the way in which the will or the hukm of the Lawgiver regarding the conduct of the mukallaf is to be known and identified. Can we know it by means of our intellectual faculty without the aid and mediation of messengers and scriptures, or is the human intellect incapable of ascertaining the law without divine guidance? A similar question arises concerning harmony and concordance between reason and revelation, in that when the human intellect determines that something is good (hasan) or evil (qabih), is it imperative that the hukm of the Lawgiver should be identical with the dictates of reason? In response to these questions, the ulema have advanced three different views, which are as follows: Firstly, the Ash'arites, namely the followers of Abu'l-Hasan al-Ash'ari (d. 324 A.H.), maintain that it is not possible for human intellect to determine what is good and evil in the conduct of the mukallaf, or to identify the hukm of the Lawgiver concerning the conduct of the mukallaf, without the aid of divine guidance. For human reasoning and judg...
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- Spring '13