Who is al-Hakim (The Legislator)?
17-04-2008
The question of ‘who is al-Hakim?’ (The Legislator) is fundamental to the
science of Usul ul Fiqh (principles of jurisprudence) in Islam, as the answer
underpins the way we view this life and the entire Shariah. Al-Hakim means ‘The
Legislator’, the one who is sovereign, who has the right to make rules and laws,
to decide the halal (permitted) and haram (prohibited) for mankind.
Philosophers, theologians and thinkers have discussed the following questions
since the beginning of recorded history: Does humankind by the use of their
minds alone have the ability to determine what actions should be deemed good and
bad, which actions should be praised and which should be shunned? Or do we
require the guidance of the Creator, Allah (swt)?
It is true that the mind has the ability to judge the reality as it is and to
conclude certain facts about that which we can sense. However it is beyond the
scope of the mind to establish laws pertaining to deciding between good and evil
actions and a regulatory system including the solutions to all human problems
whether individual, social, economic or political. Any such attempt would be
fraught with disparity, difference, contradiction and influence from the
environment.
Every human being can agree upon objective facts such as the fact that fire
burns, the Middle East contains vast oil resources, that men and women are
different physically, the meat of a pig has the ability to satisfy hunger and
that the USA is currently the dominant superpower in the world, as these are
based upon the reality which everyone can perceive.
However people disagree upon how mankind should act, what should be praised and
shunned, what should be legal and illegal. People would not disagree that fire
burns but different people have various opinions on whether the dead should be
cremated by the use of fire. There is no disagreement that the Middle East
contains oil, however there are varying views as to whether this oil should be
allowed to be in the hands of private companies, should they be nationalised or
should they be public properties managed by the state? It is an objective fact
to all that men and women differ physically, however the debate exists regarding
the laws that govern the relationships between them, should pre-marital
relations be permitted? Should both men and women be given exactly the same
roles in society? It is questions such as these that have concerned humanity for
centuries.
In order to arrive at clear answers to these questions it is paramount to look
the objective reality which is perceivable to all. It is clear that by studying
the reality that surrounds us that it is impossible to objectively decide upon
any actions of humanity in terms of evaluating and distinguishing the good
actions from the abhorrent. Therefore it is not feasible for any individual or
group of people to organise a system for mankind correctly even for the mind of
a genius; since the reality tells us nothing about what is legal or what is
illegal; what is good and what is bad; what should be praised and what should be
shunned.
When people attempt to decide a system of life for themselves by deciding the
right and wrong their ideas would merely be theories amidst thousands of other
theories proposed by others. The theories of the Western secular philosophers
who lay the foundations of Capitalist societies such as Adam Smith, John Locke,
Rousseau, Jeremy Bentham and the like are not objective facts of how societies
should be governed. They are only theories devised by laying assumptions and
were surely influenced by the environment in which these thinkers lived. In this
respect these theories of how to regulate society are equal to the theories of
Marx, Engels, Lenin, Trotsky, Hitler, Mussolini or any other human being in that
they are theories devised by the limited mind of human beings.
To believe that the mind should be the legislator would mean that there would be
no absolute truth regarding good and bad for humanity, as everyone could use
their minds to decide their own values of right and wrong. In this case we would
not be able to say definitively that rape, murdering of innocents, theft of
private property are evil, as to attribute these labels upon them would be our
own subjective opinion upon which people could differ.
It is obvious that the mind’s evaluation of good or evil can be affected by the
environment in which human beings live and it even becomes disparate and differs
with the succession of ages. So if the evaluation of good and evil were left to
the mind, the action would be righteous for one group of people and disgusting
for others. This can be seen in the world today where dog is served as a
national dish in some countries and eating dog is seen as disgusting in others,
or where homosexuality is seen as a legitimate course of behaviour in the
Western societies and seen as an abomination in others. The same action could be
shunned in one age and praised in another such as the view of pre-marital
relations between men and women in Europe in the past and the difference between
that and the open promiscuity that exists today.
In fact the meaning of ‘good’ and ‘evil’ is subjective according to people’s
interpretation of these terms. In the Western Capitalist societies these terms
are interpreted according to the secular philosophy upon which they are built
i.e. that religion must be separated from life. Secularism led to the concept of
Democracy taking root – once religion is separated from life, people were left
to decide the law for themselves, as this is practically difficult for all
people to decide in unanimity - they elect members of parliament to decide the
law on their behalf by the will of the majority. Therefore the determination of
all laws such as whether homosexuality should be a legal course of behaviour or
prohibited by the law or whether the natural resources such as oil should be
privatised or not, are decided by the minds of men.
Human beings incorrectly gave themselves the authority to judge upon the action
as good or bad in comparison with things. When they found themselves able to
judge upon the bitter thing as qabeeh (abhorrent) and upon the sweet thing as
hasan (attractive) and on the disgusting shape as qabeeh and on the beautiful
shape as hasan, they thought that they could judge on the truthfulness (sidq) as
hasan and the lie as qabeeh, and upon keeping one’s word as hasan and on
treachery as qabeeh. Based on this judgement, human beings imposed punishments
on the qabeeh action and placed rewards on the hasan action. This judgement is
incorrect as the actions cannot be compared to things. The senses can appreciate
the bitterness and the sweetness of something and hence the mind can judge upon
it. This is contrary to the action which does not possess a matter that human
beings can sense so as to judge upon it as qubh or husn. Accordingly, it is
absolutely wrong for them to judge upon such an action as husn or qubh from the
action itself. Thus they must take this judgement from another source, that is
from Allah (swt).
We as Muslims come to conclusive belief in Allah (swt) and the Quran as the
final revelation from Allah (swt) based upon the objective reality which
everyone can sense. We recognise that we do not have the ability to decide right
and wrong for ourselves, rather the depiction of actions must come from a power
beyond the mind i.e. the Shariah of Allah (swt). The fact that Allah (swt) is
al-Hakim (The Legislator) is established by definitive meaning in numerous
verses of Quran.
Allah (swt) says: "The right of rule is solely for Allah." [TMQ Yusuf: 40]
Allah (swt) has made this a matter of Iman, “But no, by Your Lord, they can
have no (real) faith until they make you judge in all disputes between them and
find in their souls no resistance against your decisions, but accept them with
the fullest submission.” [An-Nisa: 65]
Also Allah (swt), the All Wise, states, “O you who
believe, obey Allah, obey His Messenger and those in authority amongst you and
if you differ over a matter then refer it to Allah and His Messenger if you
believe in Allah and the Last Day.” [An-Nisa: 59]
Also Allah (swt) says in Surah al-Ma’idah, “And whosoever does not rule by
what Allah has revealed then such are the kafireen (disbelievers).” [Al-Ma’idah:
44]
He (swt) also says, “Judge between them by that which Allah has revealed and
follow not their desires and beware of them lest they seduce you from some part
of that which Allah has revealed to you.” [Al-Ma’idah: 49]
There are also numerous texts from the ahadith of the Prophet (saw) that
establish this, such as:
Al-Bukhari and Muslim narrated from Aisha (r.a.) that the Messenger of Allah
(saw) said: "Whoever inserted anything in this our matter (Deen) that is not
part of it, it is rejected."
Islam as the everlasting and universal ideology determines that the description
of actions as qabeeh and hasan should be the same for all human beings in all
ages. Therefore the depiction of an action being hasan or qabeeh should come
from a power beyond the mind; so it must come from the Shari’ah. Thus the
characterisation of the human action as qabeeh and hasan comes from Shari’ah. We
say treachery is qabeeh and loyalty is hasan, and sinfulness is qabeeh and piety
is hasan, and the alliance with the Kuffar against Muslims is qabeeh and the
da’wa to re-establish the Islamic Khilafah, is a hasan action, because Shari’ah
has demonstrated that.
The speech of the Legislator came related to the actions of the humans (’Ibad),
and obliged the people to restrict themselves to it in all their actions, thus
the organisation of actions comes from Allah (swt). The Islamic Shari’ah came in
relation to all the actions of people, and all their relationships, whether the
relationship was with Allah, with themselves, or with others. So there is no
place in Islam for the people to put forward canons or laws for organising their
relationships, because they are restricted to the Ahkam Shari’ah.
The Prophet (saw) said: “Verily Allah puts down obligations so do not neglect
them, and put down limits so do not transgress them, and forbade some things so
do not indulge in them, and remained silent about some things, as permitted to
you not out of forgetfulness, so do not ask about them.”
The Islamic Shari’ah contains rules of all past events, current problems and all
possible incidents that may happen. Nothing has happened in the past or is
happening at present or will happen in the future except that each and every one
of those things has a ruling from the Islamic Shari’ah. The Islamic Shari’ah
encompasses all actions of man, completely and comprehensively, at every time
and place. He (swt) said:
وَنَزَّلْنَا عَلَيْكَ الْكِتَابَ تِبْيَانًا لِّكُلِّ شَيْءٍ وَهُدًى وَرَحْمَةً
وَبُشْرَى لِلْمُسْلِمِينَ
“And We have sent down to you the Book (the Qur’an) as an exposition of
everything, a guidance, a mercy, and glad tidings of those who have submitted
for those who have submitted themselves to Allah” [TMQ An-Nahl: 89].
And He (swt) said;
مَّا فَرَّطْنَا فِي الكِتَابِ مِن شَيْءٍ
“Nothing have we omitted from the book” [TMQ Al-An’am:
38]. And He (swt) said:
الْيَوْمَ أَكْمَلْتُ لَكُمْ دِينَكُمْ وَأَتْمَمْتُ عَلَيْكُمْ نِعْمَتِي وَرَضِيتُ
لَكُمُ الإِسْلاَمَ دِينًا
“This day, I have perfected your religion for you, completed my favour upon
you, and chosen for you Islam as your way of life (Deen)” [TMQ Al-Ma’idah: 3]
Thus, the Islamic Shari’ah did not neglect a single thing from the actions of
the servants of Allah (swt) whatever they may be. The Shari’ah either states an
evidence for the action as a text in the Qur’an and the Hadith, or it places a
sign in the Qur’an and the Sunnah to indicate the aim of an action, and the
illah (legal reason) of its legislation. So the Shari’ah rule applies to any and
every action that includes that sign or that reason. It is not possible that a
human action does not have an evidence or a sign that indicates its rule. This
is due, to the general, and definite meaning of Allah (Subhanahu Wa Ta’aala)
saying تِبْيَانًا لِّكُلِّ شَيْءٍ “exposition for everything” [TMQ An-Nahl: 89],
and due to the explicit text that Allah (swt) has completed this Deen.
To this effect, Imaam Sayf ud al Amidi (d.631 Hijri) wrote, in his famous work
on jurisprudence, al-Ihkam fi Usul al-Ahkam: “You should know that there is no
judge (or arbiter) except God, that there is no judgement but His. A necessary
entailment of this (proposition) is that human reasoning cannot declare things
to be good or bad and that it cannot necessitate gratitude towards the conferrer
of bounties. There is indeed, no rule (or judgement) before the revelation of
the Shari’ah.” [al-Ihkam fi Usul al-Ahkam, 1:113]
Submitted by a Mujahid