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3.1 Divine Law and It’s Division
The divine law is the legislation emanating from God Most High to organize the life of a human being and grant it a sense of direction. This divine law is of two types.
First Type: Injunctive laws (al-ahkām al-taklīfī) that are associated [exclusively] with the actions of a human being and directly grant it a sense of direction.
Second Type: Declaratory laws (al-ahkām al-wadh’ī) that do not directly grant the actions of a human being a sense of direction. More often than not declaratory laws become the subject matter for injunctive laws, for example like marriage, [which is a declaratory law] that has become the subject matter for the [injunctive law] of the obligation to pay financial support (nafaqa).
3.2 Premises of Injunctive Laws
When we explore the injunctive law in more detail, such as the obligation to perform an action, we will see that it can be split into two distinct stages, and this is similar to the actions of a master (mawlā) in day to day life. The first stage is that of permanence (thubūt) in respect to the law, and the second is the stage of affirmation (ithbāt) and proclamation (ibrāz).
In the stage of permanence, the master will [first] ascertain the benefits (maslaha) included within the specific action, with this [process] referred to as the ‘criterion’ (milāk). Once the benefits present within that action are comprehended, an intention (irāda) subsequently arises in respect to performing that action. The [intensity of this] intention is in proportion with the amount of benefit which has been comprehended.
After this, the legislator ratifies (i’tibār) this intention with a form of proclamation, after which the action is ratified on the shoulders of the legal agent (mukallaf).
So here there are [three elements]: criteria, intention and ratification. The element of ratification is not a necessary element (unsuran dharūrīyyan) in the state of permanence [for the law to be actualised], but rather it is merely habitually employed by the rational people (uqalā) and the lawmakers as a means of organization, and the Divine Lawmaker similarly has adopted this approach also.
After completing the three elements in the stage of permanence, or at the least the first two elements [which actualise the law], the stage of affirmation now begins. This is where the master explicates the permanence of the law on the basis of the criterion and intention [established in the stage of permanence]. This is done either through a performative sentence (jumla ‘inshā’iyya) or a declarative sentence (jumla khabariyya). This proclamation can sometimes be associated directly with the intention only [and not include the element of ratification], such as when it is said “I wish from you such and such”. Or it may at times be associated with the ratification which unveils the intention, such as the verse “Pilgrimage to the House is a duty upon mankind before God for those who can find a way” 1.
After this proclamation by the master has finished, the law now becomes binding on the slave due to the right the master has over him in the performance of that action. The intellect extracts from the proclamation of the master’s intention the purpose [behind the law], which was to realize a number of intended concepts such as sending (bi’tha), causing movement (tahrīk), amongst others.
The two elements of criteria and intention within the realm of permanence are commonly referred to as the premises of the law (mabādi’ al-hukm). This is due to the idea that in the realm of permanence the law itself is the third element, that being the ratification, and that the elements of criteria and intention are the premises for it. The two elements of criteria and intention are the spirit and essence of the law, and through these two the subject matter for the rational judgement of the obligation of obedience (imtithāl) takes form. This occurs even when the master takes responsibility to proclaim these two elements out of a desire to realize his intention, regardless of whether or not the [stage of] ratification happens or not.2
For each of the five injunctive laws there is a premise in conformity with its nature, so the premise of an obligation (wujūb) is an intense intention (irāda shadīda) behind which exists a type of benefit that has reached the highest of stages, thus making acting to its contrary impermissible. The premise of a prohibition (hurma) is a severe displeasure behind which exists a type of harm that has reached the highest stage. The encouraged (istihbāb) and the discouraged (makrūh) are produced from the same premises existent in the obligation and prohibition but to a lesser degree, to the extent that the master allows a person to perform what is discouraged and abandon what is encouraged.
As for permissibility (ibāha), it has two meanings. In its specific meaning (al-ma’na al-akhass) it refers to one of the five types of injunctive laws (alongside obligation, prohibition, encouraged and discouraged), and this is the permissibility granted by the master to perform an action or to abandon it. As for the general meaning (al-ma’na al-a’amm), which is also referred to as the permittable (tarkhīs) in contrast to the compulsory laws of obligation and prohibition. The encouraged and discouraged laws are also included within this general definition due to the mutual factor of lack of compulsion shared with the permissible. Permissibility in its specific meaning could be broken down into two further groups. At times the permissibility is empty of any criteria [benefits and harms] that would make the action compulsory or not, or at times it may have a criterion but there would be no obligation. The first is called the absence of entailment (lā iqtidhā’ī) and the second is called entailment (iqtidhā’ī).
- To illustrate this discussion through a practical example let us take the scenario of a father commanding his son to get him a glass of water. In the stage of permanence, the father will first assess whether or not there is a criterion (existence of a benefit or not) in this action. Once this is ascertained, the father will make an intention for this action and after that, he would ratify this intention. After this, in the realm of affirmation, the father would give his son a command to fetch a glass of water through, for example, an imperative sentence “get me water”. Here, Shahīd Sadr is saying that it is irrelevant whether the third stage of ratification happens, for if the son uncovers the father’s intention, such as the father saying “I wish you to get me a glass of water”, then that would suffice in the obligation being binding on him.