Islamic Legal Maxims

 The Meaning

 The History

 Discussion on Five Major Maxims

 The Definition
 Literally :
- - Principles. – Islamic Law
 Technically : Mustafa Ahmad al-Zarqa`
“General principles of Fiqh which are
presented in a simple format consisting of
the general rules of Shariah in a particular
field related to it”

The principles of Islamic Law

Islamic Legal Maxim
 The general rules of Fiqh, which can be applied
in various issues.
 Few words but provides comprehensive meaning.

 Used as principles to deduce many rules of Fiqh.

Therefore they have a great role in the formation
of Islamic Law.
 They are general rules which were derived from
various sources of Islamic Law.
 The Different Classifications Of Al-Qawa’id Al-
Fiqhiyyah
1. The scope of the qawa‘id in term of its application towards
the issues of Fiqh:
a) The major maxims : 5 major maxims
b) The minor maxims :
i. the extension maxims from the major maxims
ii. The maxims that are not related to the major
maxims.
2. The acceptance of a particular maxim among the different
schools of Islamic law:
a) The maxim which is accepted and utilised by all scholars
from different mazhab.
b) The maxim that is accepted by certain scholars from
certain mazhab and rejected by others.
 History of Al-Qawaid al-Fiqhiyyah

- Al-Qawa’id al-Fiqhiyyah was not written all at once

by a particular scholar, but was developed by the
jurists at the time of the resurgence of Fiqh.
- Among the earliest jurists who developed most of
the Fiqh maxims are the jurists of the Hanafiate
school.
- the earliest compilation in the form of a note of
these maxims was written by Abu al-Hasan al-Karkhi
(d.334AH/945CE) and Abu Tahir al-Dabbas.
- In the 15th century of hijrah, Abu Zayd ‘Abdullah b.
‘Umar Al-Dabbusi wrote his book Ta’sis al-Nazar
Classical literatures
1. Takhrij al-Furu’ ‘ala al-Usul by Imam Abu
Manaqib Shihab al-Din Mahmud ibn hÍmad al-
Zanjani al-Shafi’i (d.656H).

2. Anwar al-Buruq fi Anwa’ al-Furuq written by

Imam Shihab al-Din Ahmad ibn Idris al-Qarafi al-
Maliki (d.684H).

3. Al-Ashbah wa al-Nazair by Jalal al-Din al-Sayuti

al-Shafi’i (d.1201H).

4. Al-Ashbah wa al-Nazair by Ibn Nujaym, Zain al-

Din ibn Ibrahim ibn Muhammad al-Hanafi
(d.970H).
 Modern Literature

1. Al-Madkhal al-Fiqhi al-’amm by Mustafa bin Ahmad

al-Zarqa’ .

2. Al-Wajáz fi Iidah Qawaid al-Fiqh al-Kuliyyah by

Muhammad Sidqi bin Ahmad al-Borno al-Ghazzi.

3. Al-Qawa’id al-Fiqhiyyah Nash’atuhu, wa

Tatawurruhu: Dirasat Muallifatiha by Syeikh Ali bin
Ahmad al-Nadawi.

4. Al-Nazariyyah al-Fiqhiyyah by Prof. Dr. Muhammad

bin Wahbah al-Zuhaili.
 Five Major Maxims
1.AL-UMUR
1.AL-UMURBIBIMAQASIDIHA
MAQASIDIHA
Matters
Mattersare
aredetermined
determinedaccording
according
totointention
intention

5.5.AL-‘ADAH
AL-‘ADAHMUHAKKAMAH
MUHAKKAMAH 2.AL-MASHAQQAH
2.AL-MASHAQQAHTAJLUB
TAJLUBAL-TAYSIR
AL-TAYSIR
Custom
Customisisarbitrary
arbitrary LEGAL
LEGAL Hardship begets facility
Hardship begets facility
MAXIM
MAXIM

4.4.AL-YAQIN 3.3.LA
LADARARA
DARARAWA WALA LADIRAR
AL-YAQINLA LAYAZULU
YAZULUBIBIAL-SHAKK
AL-SHAKK DIRAR
What Harm
Harmshall
shallnot
notbebeinflicted
Whatisiscertain
certaincannot
cannotbebe inflicted
removed nor reciprocated
removedbybydoubt
doubt nor reciprocated
 1. Al-Umur bi Maqasidiha
‫رررررر‬
‫ر‬
[Matters are determined according to intention]

 General Meaning

 Origins of the Maxim

 Applications of the Maxim

 Branches of the Maxim

General Meaning

 An act of any human being is judged in the

light of the intention or the purpose it seeks to
have effect.
 Intention:
a. The will directed towards an action
b. The directing of the will towards the action
of any human being
Origins of the Maxim 1

Narrated by ‘Umar r.a., the Prophet s.a.w. said:

"Deeds are judged by intentions and every person
is judged according to his intentions"
 Application of the Maxim 1
1. If a person finds something on the street or
anywhere else and took the object with the
intention of returning it to the owner, his
conduct is in order and he is considered as the
keeper (amin) of the item, but if he intends to
keep the item as his own, he is considered to be
a person wrongfully appropriating property
(ghasib).
The physical act is identical in both cases but the
judgment therein differs according to the
intention.
 Application of the Maxim 1

2. If a person killed another person intentionally,

than doer should be killed (qisas) if convicted,
but if the crime is perpetrated unintentionally,
the punishment is different in which case the
paying of blood money (diyah) is applied.
The Purpose of Intention
A. To differentiate b’ween ‘Ibadah and ‘Adah (custom or
personal habit). For e.g., if a person refrain from eating
and drinking from dawn (fajr) until sunset (maghrib)
without having the intention of fasting, the person is not
considered as fasting.

This action is mere ‘Adah and will not be rewarded.

The same action if done with the intention of fasting, it

will be considered as ‘Ibadah and will be rewarded
B. To differentiate between one kind of ‘Ibadah and
another. For example in prayer, fasting, Ghusl and hajj.
 Branch of the Maxim 1

] [

In contracts effect is given to intention and meaning and not

words and forms.
 This maxim gives the effect that in the event of a
difference between the intention and the outward
expression in the interpretation of contract, the
judgement would be in accord with the intention to the
extent that it may be ascertained.
2.Al-Mashaqqah Tajlub al-Taysir
‫بببببب بببب‬
[Hardship ‫ب‬
begets facility]

 General Meaning

 Origins of the Maxim

 Applications of the Maxim

 Branches of the Maxim

 General Meaning

 Any rulings whose implementation causes hardship to

a person OR the action is unable to be performed for
a specific acceptable reason then, there are
alternatives and way out that can be resorted to in
order to overcome the difficulties and hardship.

 Hardship in this maxim refer to those kind of

hardships that surpass the normal limit and ability of
a person to perform them.
General Meaning [Cont’d]

 The normal hardship that accompanies

implementation of every obligatory duty does
not fall under the interpretation of this
maxim.
E.g.
Hardship in performing certain kind of ‘ibadah
such as in fasting, hajj, jihad.
 Origins of the Maxim

He did not make any difficulty for you regarding the religion (din of
Islam) [Al-Hajj, 78]

Allah wants ease for you and He does not want hardship for you [Al-
Baqarah, 2:185]

Allah does not give anyone legal responsibility for anything except what
is within his capacity"
[Al-Baqarah, 2:286]
 Origins of the Maxim [cont’d]

“You have not been sent like those who have been
given hardship. Rather, you have been sent as those
who have been given ease or facility”

“Surely Allah (SWT) introduced the din as easy, full

with kindness, and wide. He did not make it narrow”

Ayesha r.a said: "Whenever the Messenger of Allah

(p.b.u.h) was given choice between two things he
chose the easier one unless it was a sin”
 Application of the Maxim 2

 If someone enters into a rental contract (al-Ijarah)

and later on he has to travel for certain reason, he is
allowed to cancel the rental contract.
Under normal circumstance, a person is not allowed to
cancel this type of contract unless it is agreed
between the contracting parties beforehand.
However, forcing a person to continue paying the
rental when he is not occupying the premise, will
amount to hardship, therefore the Shari’ah has
allowed the cancellation under specific circumstances
in order to avoid hardship.
 Application of the Maxim 2

 The general ruling related to the implementation

of punishment towards a person convicted for any
crimes is that the punishment should be carried
out immediately upon conviction.
However, under certain exceptional conditions,
such as if the criminal is sick, the punishment can
be deferred to a later time.
This is to ease the person from additional
hardship.
 Branches of the Maxim
 Necessity renders prohibited things permissible.
[al-Darurat tubih al-mahzuraat]

This means that prohibited things is allowed to be

carried out under extreme circumstances provided
there are no other alternative for such situations.

As an example, a person is allowed to consume

prohibited food in order to survive under extreme
situation provided no other food is available.
Branches of the Maxim [cont’d]

 Where a matter is narrow it becomes wide.

[al-amr iza daqa ittasa’]

 Latitude should be afforded in the case of difficulty.

This means upon the appearance of hardship in any

particular matter, latitude and indulgence must be shown.
 3. La Darara Wala Dirar

[Harm Shall Not Be Inflicted Nor Reciprocated]

 General Meaning

 Origins of the Maxim

 Applications of the Maxim

 Branches of the Maxim

 General Meaning
 A general maxim which indicates the importance to
remove all kind of harm.
 This maxim is divided into two parts:

i. [La Darar]
Harm shall not be inflicted
ii. [La Dirar]
Harm shall not be reciprocated
 Part One [La Darar]

 Harm shall not be inflicted indicates that all kinds of harm

whether it involves individual, society, environment or any
other things shall be avoided.

 The word harm in this maxim is general and it includes all

kinds of harm. All necessary measures should be taken in
order to prevent any kind of harm from happening.
 Part Two [La Dirar]
 Harm shall not be reciprocated indicates that any harms that
is inflicted should not be responded or revenged by inflicting
another harm as this will add to the harm already inflicted
and will cause or incur further harm.
 The person upon whom harm was done, shall demand his right
through the due process of law.
E.g. If A damaged the property of B intentionally, B cannot under any
circumstances damage the property of A in revenge, but he must get
the compensation for the damages on his property from the court of
law.
 Origins of the Maxim 3
 The Prophet (pbuh) said:

“”
“Harm Shall Not Be Inflicted Nor Reciprocated”

 The obligation to avoid any kind of harmful actions were

indicated by many verses of the Qur’an and other Hadith. One
of the verses read:

“”
“…make not your own hands contribute to (your) destruction…"
[Al-Baqarah: 195]
Application of the Maxim 3
 If anyone sells anything that could rots quickly, such as
fruits, and the buyer disappears before the payment of
the price and before receiving the sold items.

 The seller in this case is allowed to revoke the sale

contract and sell the said item to another person, if he
fears that the sold item will be spoiled.

 This is to prevent loss to the seller which will harm his

business.
Application of the Maxim 3

 Driving recklessly or beyond the stipulated speed

limit on the highway which might lead to an
accident is prohibited in Islam as it will cause
harm to individual and property.

Similarly it is obliged to adhere to the traffic rules

and regulation in order to prevent the harm for
going against them.
 Branches of the Maxim 3

 Harm must be prevented wherever possible

All necessary measure must be taken to prevent any harm from
happening

 Greater harm must be prevented even at the expense of

the lesser harm

In case there is two evil, the lesser evil can be committed in

order to prevent the greater evil from occurring. In other
word, it is choosing the lesser of two evil or between two harm
things
 4. Al-Yaqin La Yazulu bi al-Shakk
‫لللللل لل لللل‬
‫ ل‬be Removed by Doubt]
[What is Certain Cannot
 General Meanings

 Origins of the Maxim

 Applications of the Maxim

 Branches of the Maxim

 General Meaning I

 Principles to be followed if there arise any doubt

in any matters pertaining to Islamic Law.

 A fact established by law or proven with evidence

will remain so, until there is another certainty
that remove it.

 Any doubt that occur when the certainty prevail

will have no power to remove the certainty.
FACT/CERTAINTY
EVIDENCE
A IS ALIVE AAEVIDENCE
DOUBT?DEAD
FACT/CERTAINTY
IS
IS DEAD
General Meaning II
 If something has not been established with
certainty it will remain so until proven
otherwise.

 Doubt, which comes later, is weaker than

certainty on which it was founded.

 Therefore, doubt cannot contradict or resist

certainty.
Origins of the Maxim

"If anyone of you feels anything in his

stomach and then he is confused of
whether anything has come out of it or not,
he should not go out of the mosque unless
he hears any sound or gets any smell”
[Muslim]
 Origins of the Maxim [cont’d]

If the forgetfulness arises to anyone of you in his salah and

he does not know whether he has prayed one rak`ah or
two,he should consider them one rak`ah. Likewise, if this
person is not certain whether he has prayed two rak`ahs or
three, he should consider them two rak`ahs.

In all these cases the person should prostrate twice before he will finish
his her prayer by saying the greeting (salam)
 Application of the Maxim 4

1. If a person is certain that he is in the state

of ablution, he is considered to have
ablution until there is evidence or indication
showing otherwise
Application of the Maxim 4

2. If person have taken loan from another person

and is in doubt whether he still indebt, he is
considered to be in debt until there is proof
to show otherwise
 Branches of the Maxim
 Originally A Matter Will Remain As It Is
This maxims reiterate the meaning of the earlier maxims
in which it says a matter will remain in its position until
there are proof that indicated otherwise.

 There is no consideration for doubt

 Imagination cannot be taken into consideration

 The speculation whose error is obvious cannot be

taken into consideration
 5. Al-‘adah Muhakkamah

[Custom is Arbitrary]
 General Meanings

 Origins of the Maxim

 Applications of the Maxim

 Branches of the Maxim

 General Meanings
 Custom in the practices of the people
whether in their doings or in their sayings,
regardless of whether it is the general
practices of the people or the practices of
certain groups of people.

 These practices has the authority and can

specify a general matter (takhsis al-’Amm)
or restrict an unrestricted matter (taqyid al-
mutlaq).
Click for example
 Example

 If a contract does not specify whether the

delivery of the goods is the responsibility of the
purchaser or the retailer.
 In this case the prevailing custom should be
depended upon to specify and clarify this matter
which is not cited in the contract.
 Origins of the Maxim
 ‘Abd Allah b. Mas’ud:
"What the Muslims deem to be good is good in the sight of
Allah"

 Custom, if not against Islamic teachings, is normally

considered as good practice to the Muslims and
acceptable by people and reason. Therefore, such a
practice is accepted by Allah. So, it can be regarded as a
source of law in Islam.

 Earlier and more recent scholars of Islamic law have

agreed that custom is an important source in Islamic law.
They have not objected to the role of custom in solving
the problems that arise in Islamic law.
Application of the Maxim
 The practice of people in certain places to
divide the dowry in marriage contract into two
type. The first is the dowry paid when the
contract is concluded and second is the dowry
paid at a later period of time.

 The custom that involves transactions is the

sale of offering and accepting, or bay’ al-
mut’atah [ ], which is normally concluded
without the utterance of offer and acceptance.
 Branches of the Maxim

 A matter recognized by custom is regarded as though

it were a contractual obligation.

 A matter recognised by merchants is regarded as

being a contractual obligations between them.

 A matter established by custom is like a matter

established by law.

 Effect is only given to custom where it is of regular

occurrence or when universally prevalent.