Extract from the book Fikr Islami by Sheikh Mohammad Mohammad Isma’eel

Al-hukm ush-Shar’i (divine rule) is the Legislator’s speech pertaining to the actions of men. Thus al-hukm ush-Shar’i is established by the proof of the speech; and it is identified through understanding the meaning of the speech. The Legislator’s speech is that which came in the Kitab and Sunnah, of orders and prohibitions. Therefore, understanding of the hukm Shar’i depends on understanding the Kitab and Sunnah, for they are the origin of Legislation and the source of ahkam (rules).

However, it is not (true) that every Legislator’s speech must be undertaken, and there is a punishment for its negligence; or it is forbidden to undertake and there is a punishment for doing it. Rather, this depends on the type of speech. Therefore, it is sin and insolence against the deen of Allah (swt) that a person rushes to state that this (matter) is fard, just because he read a verse or a hadeeth that indicates the request of performing it; or he rushes to give a fatwa (legal view) that this (matter) is haram, just because he read an ayah or a hadeeth which indicates the request of abandoning it.

The Muslims are afflicted, these days, with many of such people who rush to make (matters) halal and haram, just by reading the order or the forbiddance in an ayah or a hadeeth. It is often that these people are from amongst those who discovered that they understood before they understand and it is rare that they are from amongst those who understand the meaning of legislation (tashree’). Therefore it is necessary to understand the type of the Legislator’s speech before giving the opinion in the type of the hukm shar’i. In other words, it is necessary to understand the meaning of the hadeeth or the ayah in a legislative way, and not only linguistically, so as the Muslim does not fall in the error of prohibiting what Allah (swt) allowed and allow what Allah (swt) prohibited.

The Legislator’s speech is understood through the text and the connotations (qaraa’in) that determine the meaning of the text. It is not true that every order indicates obligation, and nor does forbiddance indicates prohibition. This is because the order could indicate preference (nadb) or allowance (ibahah); and forbiddance could also indicate dislike (karahah).

When Allah (swt) says:
“Fight against those…” [TMQ At-Tauba:29], He orders with Jihad. The order in this ayah is an obligation (fard), which Allah (swt) persecutes for its negligence. However, the fact that it is an obligation does not come from the order alone. It rather came from other connotations (qaraa’in) that indicated this order is a decisive request of doing the action.

This connotation is other texts, such as His (swt) saying in another ayah:
“If you do not go forth He will afflict you with a painful doom.” [TMQ At-Tauba:39]

And when He (swt) says:
“Do not come close to adultery (zina).” [TMQ Al-Israa:32], He (swt) forbids adultery.

The forbiddance in this ayah is prohibition of adultery, which Allah punishes for doing it. However, the fact that it is haram did not come from the form of forbiddance only. It rather came from other connotations (qaraa’in) that indicated this forbiddance is a decisive request of abstaining from the action This connotation (qareena) is other texts, such as His (swt) saying in the same ayah:
“Lo! It is an abomination and an evil way.” [TMQ Al-Israa:32]

And His (swt) saying in another ayah:
“The adulterer and the adulteress, lash each one of them with a hundred strikes.” [TMQ An-Nur:2]

When Rasool ul-Allah (saw) says:
“The collective prayer (salat ul-Jama’ah) is preferable to the individual prayer with twenty seven degrees.”, he orders with the Jamaa’ah prayer, even though the request did not come in the order form. When he (saw) also says:
“I forbade you from visiting the graves. Look, go visit them.”, he orders with visiting the graves. However, this order or request in these two ahadeeth is mandoob and not fard. The fact that it is mandoob comes from other connotations (qaraa’in), such as his (saw) silence (sukoot) about some people who prayed individually, and his (saw) silence (sukoot) about some people who did not visit the graves. This indicated that it is indecisive request. And when the Rasool (saw) says:
“Who is better off and did not marry, he is not one of us.”

And when we read the forbiddance of the Prophet (saw) from ascetism (tabattul), ie from abstaining from marriage in the hadeeth from Samrah:

“The Prophet (saw) forbade from ascetism.”, we find the Rasool (saw) forbids from abstaining from marriage for the better off (rich) person in the first hadeeth, and he forbids from abstaining from the marriage in and absolute way in the second hadeeth. This does not mean that non marriage in absolute way (the unrestricted abstention from marriage) is haram. This forbiddance rather indicates that it is disliked (makrooh) and not haram.

The fact that it is only makrooh comes from other connotations (qaraa’in), such as the silence (sukoot) of the Prophet (saw) from some rich people when he (saw) knew they did not marry, and his (saw) silence from some of the Sahabah when they did not marry.

And when He (swt) says:
“But when you have left the state of pilgrimage, then go hunting (if you will).”
[TMQ Al-Maidah:2]

“If the (Friday) prayer ended, then disperse/walk in the ard (land).”
[TMQ Al-Jumua:10]

He (swt) orders with hunting after dissolving of ihram (state of hajj), and orders with disperse (in the land) after the (Friday) prayer. However, this order does not indicate that hunting after dissolving of ihram (ritual consecration) is fard and nor it is mandoob; it rather indicates it is mubah. The fact that it is mubah came from another concatenation (qareenah), which is that Allah (swt) ordered with hunting after ihram (ritual consecration) where He forbade of it before (starting) ihram (ritual consecration). He (swt) also ordered with dispersing (in the land) after the Friday prayer after He forbade of it at the (time of) Friday prayer. That concatenation (qareenah) indicated that this order was for ibahah (allowance). Thus the hunting in this case and dispersing in that case are mubah.

Therefore, cognizance of the type of the hukm for the text depends on understanding the text in a legislative (tashree’i) way, by linking the text with the concatenations (qaraa’in) that explains the meaning of the speech in the text. From this, it becomes clear that the ahkam sharee’ah are of many types.

It appears from examining all the texts and all the ahkam that the ahkam sharee’ah are five (types). The fard which means wajib (obligation), the haram which means al-mahdhoor (prohibited), the mandoob, the makrooh and the mubah. This is because the Legislator’s speech, is either a request of (doing) an action, or a request of leaving (an action), or giving choice between doing or leaving. The request (talab) might be decisive or indecisive. If the request of doing the action was decisive, then it is the fard. If it was not decisive, then it is the mandoob (preferable). If the request of abstaining from (the action) was decisive, then it is the haram (prohibited); and if it was indecisive, then it is the makrooh (disliked). The request of (giving) choice is the mubah (allowed).

Thus, the ahkam sharee’ah are only five which are: the fard, the haram, the mandoob, the makrooh and the mubah.