Advanced search
Last Updated: 2014/02/27
Summary of question
What are the legal bases of various categories of rulings such as actual, outer, mawlawi, advisory, defining and declaratory law?
Salam aleikum rahmatullah wa barakatu Sometimes various categories, types or names of rulings are mentioned. Is it possible according to scholars to speak of 3 categories of rulings in general? Could you please give a reference according to scholarly works? There are some websites where you could find these categories such as wajib, haram, mustahab, makrooh, mubah, mandatory, 'ayni, takhyiri, kifai.
Concise answer
Based on the way one looks at the rulings and laws, it is possible to divide the rules in a number of ways some of which, albeit, can be merged into one another. In this study, we have tried, as far as possible, to present various classifications into a coherent category of laws related to each other. The aim is to bring the various laws and rulings together.  To read the category of laws, you are requested to go through the detailed answer.
Detailed Answer
To explain the subject under question, first of all, we will have to define and elaborate on hukm-e shar'ei (lit. Shari'ah law) so that we may explain its various divisions. While explaining the divisions, efforts have been made to explain various categories from general to particular.
Definition of Islamic Law (Hukm-e Shar'ei)
Hukm Shar'ei is the communication from the lawgiver (Allah and the. Prophet (s) on the authority of Allah) concerning the conduct of Mukallaf (on whom law is applicable, that is, a sane and adult person) which may be in the form of a demand or an option or only as an enactment. It extends to the conducts of the duty-bound either directly or indirectly. For instance, the obligation of prayer is a duty ordained by God, the Legislator. This definition unlike other definitions, includes both the takilifi (defining) and irshadi (declaratory) laws.[1]
Ahkam Shar'ei are divided into outer (dhaheri) and actual (waqe'i) laws depending on what type of arguments and proofs have been used. What is an asserotorical law?
Actual law [hukm-e waqe'i]: If a law is derived from authoritative sources such as the Quran, Sunnah, reason and consensus, the law is termed in the juridical terminology as hukm-e waqe'i. For instance, the obligation of prayer has been obtained from the Quran and prophetic traditions and there are numerous verses and traditions that clearly refer to the rules regarding prayer.[2]
Outer law [hukm-e dhaheri]: If a ruling is derived from juridical arguments e.g. the practical principles, the derived rule is called hukm-e dhaheri because the Mujtahid turns to certain practical principles  (principle of exemption, istishab, precaution and takhyir) when he does not find a proof from the Quran and Prophetic tradition. In fact, the outer ruling is issued in the absence of real and actual law since the actual law remains hidden to the jurist.  The outer law is to bring the duty-bound out of confusion and perplexity where the actual law is hidden. The jurist makes use of the practical principles to derive the outer law because there is no subject to which a law may not be applicable.[3]
In another classification, the Islamic laws have been divided into primary and secondary rules. Based on the research conducted in this regard, these two laws fall in the category of actual law. That is to say, there are initial actual laws and secondary actual laws. For further information about the definition of primary and secondary rules, the readers are advised to study answer 31951.
Another categorization
The religious laws are divided into mawlawi[4] and irshadi (advisory) as they have been also divided into takilifi (defining) and wadhe'i (declaratory). The second classification (taklifi and wadhe'i) can be counted as included under mawlawi laws.
Mawlawi laws:
Real enactments and mentally posited religious rules convey demand and impulsion or signify restraint and prevention of the duty-bound from doing an act. Hence, reward is given in the case of obedience and punishment will be given in the case disobedience.[5]
Irshadi (Advisory) rules: Those rules and considerations on the part of the legislator which have a guiding or advisory aspect and which do not really impel the duty-bound to do an act or not to do it, but signify guidance to something which man's reason discovers or to an expediency or an evil which exists in the thing to the rule applies such as the Holy Quran's command to obedience of God;[6] because the human intellect independently discerns the necessary of obedience. Therefore, the command "obey" refers to what the intellect discerns as necessary.  Thus, mawlawi laws are divided into defining and declaratory laws.
Taklifi (defining) law: If the Legislator's command conveys demand and impulsion or signify restraint and prevention of the duty-bound from doing an act, the command is called defining (taklifi) law. The taklifi laws are divided into Five Laws (al-ahkam al-khamsah): Wujub (incumbency or necessity), Hormah (being forbidden), Istihbab (Desirability), Kerahat (repugnance and aversion), and Ibahah (general permission for common use). These laws relate directly to the actions of the duty-bound correcting their conducts from every aspect. Abiding by them and opposing them would entail reward or punishment.[7] Some of the five laws like wujub (incumbency) has sub-divisions as well which are wujub 'ayni versus wujub kifai[8]; wujb ta'yini versus wujub takhyiri[9] and wujub ta'abbudi versus wujub tawassoli.[10]
Declaratory (wadhe'i) law: A declaratory law is a law which is not directly related to the conducts and actions of the duty-bound. The aim is to motivate the duty-bound to do an act or to prevent him from doing it or to inform him that a certain act is allowed to do. In fact, this particular enactment has an indirect impact on man's deeds and conducts. Therefore, an enactment, or wad`, is neither a demand nor an option, but an objective exposition of the law which enacts something as a cause (sabab) or a condition (shart) of obtaining something else; or it may be conveyed in the form of a hindrance (mani`) that might operate as an obstacle against obtaining it. If the enactment is there, there would not be any such relationship between those two things. The example is wudhu (ritual impurity) which has been enacted by the legislator as a condition for the validity of prayer.[11]
Governmental law: The orders issued by the ruler (such as the Prophet (S), Infallibles (A.S) and a qualified jurist in the time of occultation) towards the enactment of a religious obligation are called governmental law. The difference between a governmental law and a regular ruling is that in regards to its application, the governmental law is longitudinal to divine rulings.[12]

[1] Center for Islamic Date and Documentation, Glossary, p. 109, Academy of Sciences and Islamic Culture, Qom, 1389 A.H.
[2] Muzaffar, Muhammad Reza, Usul-e Fiqh, p. 16, Islamic Propagation Office, Qom, 1377 (1998).
[3] Ibid.
[4] A command issued by a superior to an inferior with the hopes that the command will be obeyed.
[5] Glossary of Usul-e Fiqh, p.115.
[6] "Say: Obey Allah and the Messenger; but if they turn back, then surely Allah does not love the unbelievers." Aal-e Imran, 32.
[7] Glossary of Usul-e Fiqh, p. 106.
[8] A kind of wajib which is obligatory for everyone individually, irrespective of others, like prayer and fast. If one performs it, others will not be relieved of the obligation.  It is the opposite of wajib kafai where which is not obligatory to others provided a sufficient number of people do it, such as performing Ghusl and other rituals of Mayyit, which is obligatory to all but if some people do it, then there is no obligation for others. Vide: Glossary of Usul-e Fiqh, p 884.
[9] Wujub ta'yini is where the incumbency is determined e.g. a determined Wajib, such as prayers, fast and Hajj. In case of a determined wajib, there is nothing that can replace it. It is the opposite of Wajib Takhyiri where one is free to adopt one of many obligations like Kaffarah  (penalty) of fast, which can be chosen out of three alternations: (1) Setting a slave free; (2) Sixty days of fasting; (3) giving enough food to sixty poor persons. If one does one of these obligations, he has discharged himself of the obligation and will no longer be bound to do anything. Vide: Glossary of Usul-e Fiqh, p. 882.
[10] Wujub Ta'abbudi is an incumbency where a wajib act is done with the intention (Niyyat) of getting closer to Allah. For instance, if prayer is offered and fast is observed without the intention of proximity to God, the doer has not discharged himself of the obligation. It is the opposite of wajjib tawassoli where a wajib does not require intention of qurbat (getting closer to Allah) such as repayment of debt or answering Salam and washing clothes and body for the purpose of prayer. Vide: Glossary of Usul-e Fiqh, p. 882.
[11] Glossary of Usul-e Fiqh, p. 117
[12] Glossary of Usul-e Fiqh, p. 190
Question translations in other languages
Number of comments 0
Please enter the value
Example : Yourname@YourDomane.ext
Please enter the value
Please enter the value

Thematic Category

Random questions