The following is the draft english translation from the Usul Al-Fiqh masterpiece of the Arabic book الشخصية الاسلاميَة الجزء الثالث (The Islamic Personality Volume 3 ) by Sheikh Taqiuddin an-Nabhani. Please refer to the original Arabic for accurate meanings.
Chapter2 - Al-Hakim (The Judge)
From the most important of inquiries related to the hukm, necessarily requiring clarification, is the knowing of who it is the issuing of the hukmreturns to, that is, who is the Hakim? Upon the knowledge of this rests the knowledge of the hukm and its types.
The intent of ‘Hakim’ here is not the executive authority who executes all the affairs with the authority it possesses. Rather, the intent of “Hakim” is the one who possesses the right of issuing the hukm upon actions and things, because all that exists of the tangible comprises either of the actions of the human or of the things other than the actions of the human. Because the human, by his description of being alive in this universe, is the subject of the study, and issuing of the hukm is only because of him and is related to him, therefore the hukm upon the actions of the human and upon things related to these actions is necessary.
So who is the one who alone has the right to issue thehukm upon that: it is Allah, or the human himself? In other words, is it the shar’ or the intellect [‘aql]? That which allows us to know the hukm of Allah is the shar’, and that which the human judges by is the intellect. So what judges (upon the actions and things), the shar’ or the intellect?
As for the subject of this hukm, that is, the thing which judges upon the actions and the things, it is the husn [beauty] and the qubh [ugliness], because the intent of ‘issuing the hukm’ is the specifying of the stance of the human towards an action: should he do it or leave it, or choose between doing it and leaving it, and the specifying of his stance towards the things related to his actions: should he use them, or leave them, or choose between using and leaving. The specifying of this stance of his depends on his view about the thing: is it hasan or qabīh or neither. Thus the subject of the sought hukm is the husn and qubh. So is the judgment ofhusn and qubh for the intellect or the shar’? There is no third option with regards to the issuing of this hukm. The answer to this is that the hukm on the actions and things can be from a number of perspectives. It can be from the perspective of its:Reality; the nature of its reality: what is it?
Accordance or discordance with the nature of the human being and his fitri [innate] inclinations; and Its commission being praiseworthy and its omission being blameworthy or it being neither praiseworthy or blameworthy, that is, from the perspective of reward and punishment for its commission or omission or the lack of reward or punishment.
Thus these are the three perspectives of the hukm upon the actions and things: one, its reality, what is it? Two, its harmony, or the lack thereof, with the nature of the human; and three, with regards to reward or punishment and praise or reproach.As for the hukm upon actions and things from the first perspective, its reality, and the second perspective, its harmony or discord with the nature of the human, then there is no doubt that all of this is for the human himself, that is, for the intellect and not the shar’. The intellect is what judges upon the actions and the things with regards to these two perspectives. The shar’ does not judge upon either of them, because the shar’ has no role in them. For example, that knowledge is hasan and ignorance is qabīh; the reality of the two is apparent in their excellence and deficiency respectively.
Similarly that affluence is hasan and poverty is qabīh, and so forth. For example the rescuing of those drowning is hasan and the unjust taking of wealth is qabīh. Human nature inclines away from oppression and inclines towards the [saving of the mushraf] from destruction. All of these return to the reality of the thing which man can sense and which his intellect can comprehend, or they return to the innate nature of man by which he feels and which his intellect comprehends.
Therefore it is the intellect which judges with regards to husn and qubh, and not the shar’, that is, the issuing of the hukm upon actions and things from these two perspectives is for the human; the hakīm in them is man.As for the judgment, upon the actions and things, from the perspective of praise and reproach in the world, and reward and punishment in the hereafter, then without doubt it is for Allah alone, and not for the human, that is, it is for the shar’, not for the intellect. For example the husn of imān, the qubh of kufr, the husn of obedience, the qubh of disobedience, the husn of lying during war, and its qubh with the kafir ruler in peace time, and so forth.
This is because the reality of the intellect (thinking) is (that it requires) sense-perception [ihsās], the reality, previous information and the brain. Sense-perception is an essential element of the foundations of the intellect such that if the human being cannot perceive a thing it is not possible for his intellect to issue judgment upon it, because the judgment of the intellect is restricted to that which is sensed and it is not possible for it to issue judgment on that which is not sensed. The nature of oppression [dhulm] as to whether it is worthy of praise or reproach is not from that which man can sense, because it is not something that can be sensed, so the intellect understanding it and giving judgment on it is not possible.
This even though man may feel, through his innate nature, an inclination towards or away from it, but feeling alone does not benefit the issuing by the intellect of the hukm upon a thing; nay, sense-perception is a must.
Therefore, it is not possible for the intellect to issue judgment of husn or qubhupon a thing or action. Thus, it is not permissible for the intellect to issue its judgment of praise or reproach upon actions or things.Nor is it permissible to place the issuing of the hukm of praise or reproach alongside with the innate human inclinations because these inclinations issue the judgment of praise upon what is in accordance with them(inclinatinations) and of reproach on what goes against them, and it may be that which accords with them is of that which is worthy of reproach, like fornication, homosexuality, and tyrannical ruling over people; and it may be that which goes against them is praiseworthy, like fighting the enemies, patience upon disliked things and the speaking of the truth in situations where severe harm is bound to eventuate. Thus placing the (issuing) of the hukm with the inclinations and desires means placing them as a basis upon which praise and reproach (of things and actions) is considered.
They (inclinations) are definitely an erroneous basis of consideration, and therefore judging by them is erroneous, because they make erroneous judgments that contradict the reality, over and above the fact that they judge praise and blame on the basis of whims and desires not on the basis of what is actually upon it. Therefore is it not permissible for the innate inclinations to issue judgment of praise or reproach, nor is it permissible for the intellect to do so. Thus is it not permissible to place the issuing of the hukm of praise or reproach with the human being. The one who issues His hukm of praise or reproach is indeed Allah(SWT), and not man; it is the shar’, not the intellect.If man is left to judge upon actions and things with regards to praise and reproach, the judgment would differ with the difference in personalities and times. It is not in the capability of man to conclusively judge.
Therefore the judgment in this regard is for Allah (SWT). It is evidently apparent that man judges things to be hasan today but then judges them to be qabīh tomorrow, that he judges things to be qabīh yesterday and judges the same things to be hasan today. Thus man is at variance in judgment upon the same thing and cannot conclusively judge. So his judgment is erroneous and therefore it is not permissible to place the judgment of praise or reproach with the intellect or with man.Thus it is from necessity that the Judge(Al-Hakim) upon the actions of the servants and upon the things related to them from the perspective of praise and reproach is Allah the Exalted and not man, that is, it is the shar’ and not the intellect.
This is the rational evidence of husn and qubh; as for the shar’i evidence,then the shar’ has
tied tahsīn and taqbīh with its command to follow the Messenger (SAW) and to restrain the whims. Thus it is from the definitive (principles) of the shari’ah that husn is what the shar’ has made husn and qabīh is what the shar’ has made qabīh, from the perspective of reproach and praise.The hukm, of praise or reproach, upon the actions and things is for the specifying of the stance of the human with regards to them. In terms of the things, it clarifies whether his using them is allowed (yajooz) or prohibited, and there is no third option.
In terms of the actions of man, it clarifies whether he is requested to establishing them or he is requested to leave them, or whether the choice between doing and leaving is his. Because the hukm from this perspective is not but for the shar’, it a must that the ahkām upon the actions and things related to them return to the shar’ and not the intellect and it is a must that the shar’ alone judge upon them.
Further, the hukm upon the things of halāl [allowed] or harām [prohibited], upon the actions of the servants of wājib [obligatory], harām, mandūb [recommended],makrūh [reprehensible] or mubāh [permissible], and upon the matters [‘umūr] and contracts [‘uqūd] of (them being) asbāb [causes], shurūt [conditions], or mawān’i[preventions], or sahīh [valid], bātil [invalid], or fāsid [void], or (them being) azimāh [original rule] or a rukhsah [concession], all of this is not judged on the basis of the things or actions being in accordance or discordance with the natural human disposition or on the basis of their reality, but are judged on the basis of whether they merit praise or reproach in this world and reward or punishment in the hereafter.
Therefore the hukm by its nature is for the shar’ alone and not for the intellect. Thus in reality, the hakim upon the actions and the things related to them and upon the matters and contracts is not but the shar’ alone. The intellect has absolutely no judgment in this.