32
EQUITY IN ISLAMIC LAW Before we discuss more equity in Islamic law, we must know the definition of equity. What is equity? It is derived from the Latin term Aequitas (equality) which is means to reach as near as possible to natural or ideal justice. When law becomes static and un-responsive to social necessities, then legal fiction, equity and amending legislation help it to advance. Besides, equity corrects the law by applying, in circumstances where the ordinary rules would lead to unwarranted hardship, considerations of what is fair and just 13 . With that, equity broadly means fairness or natural justice and comes in whenever law causes hardship and injustice. It assists the law where it is defective and weak and defends it from evasions and technicalities. Basically, equity in English law is difference with equity in Islamic law. Equity in English law derived their rules from the natural law whereas Islamic equity finds its roots or sources based on Al-Quran and Sunnah. It is wide and flexible but holds firm in the provisions of primary sources. The door is wide-open to the adoption of anything of utility, of whatever origin, so long as it does not go against the texts of the Al-Quran and the Sunnah 14 . The sources of Islamic law mainly consist of primary and secondary sources. At the very apex, Al-Quran is the highest authority, which is accompanied by and interpreted by Sunnah of Prophet Muhammad 13 Newman, Raph A., Equity and Law: A Comparative Study (New York, 1960), p. 11. 14 Said Ramadhan. 7

Islamic Legal Maxim

Embed Size (px)

DESCRIPTION

Qawaid Al-Fiqhiyyah

Citation preview

Page 1: Islamic Legal Maxim

EQUITY IN ISLAMIC LAW

Before we discuss more equity in Islamic law, we must know the definition of equity.

What is equity? It is derived from the Latin term Aequitas (equality) which is means to reach

as near as possible to natural or ideal justice. When law becomes static and un-responsive to

social necessities, then legal fiction, equity and amending legislation help it to advance.

Besides, equity corrects the law by applying, in circumstances where the ordinary rules

would lead to unwarranted hardship, considerations of what is fair and just13. With that,

equity broadly means fairness or natural justice and comes in whenever law causes hardship

and injustice. It assists the law where it is defective and weak and defends it from evasions

and technicalities.

Basically, equity in English law is difference with equity in Islamic law. Equity in

English law derived their rules from the natural law whereas Islamic equity finds its roots or

sources based on Al-Quran and Sunnah. It is wide and flexible but holds firm in the

provisions of primary sources. The door is wide-open to the adoption of anything of utility, of

whatever origin, so long as it does not go against the texts of the Al-Quran and the Sunnah14.

The sources of Islamic law mainly consist of primary and secondary sources. At the very

apex, Al-Quran is the highest authority, which is accompanied by and interpreted by Sunnah

of Prophet Muhammad S.A.W. In addition to the primary sources, ijma’, qiyas and ijtihad

represent the secondary sources.

As we all know that the primary source i.e. Al-Quran and Sunnah are divine in nature.

Any rules or hukm derived from these two sources are considered as absolute and nothing

can prevail over them. Hence, where the equity can be applied in Islamic law? Equity will be

needed for interpreting provisions of Shari’ah which are not divine but it is jurist-made. For

example, although the primacy of reasoning by analogy in developing new ruling according

to Al-Quran and Sunnah, it may be rejected by the Islamic jurists in favour of one based on

and justified by ‘equity’.

13 Newman, Raph A., Equity and Law: A Comparative Study (New York, 1960), p. 11.14 Said Ramadhan.

7

Page 2: Islamic Legal Maxim

The Law of Mejelle15 provides that with a change of time, the requirement of the law

changes. It follows the maxim:

اإلباحة األشيأ في األصل

The norm in regard to things is that of permissibility

Equity can be only practiced if someone has equipped knowledge and proper

understanding of the concept of Islam, its Tawheed, the objectives of Syariah, the concept of

Khilafah and the concept of accountability to Allah S.W.T.

بالققسط الناس ليقوم والميزان الكتب معهم وأنزلنا بالبينت رسلنا أرسلنا لقد

فيه الحديد وأنزلنا

We verily sent Our Messengers with clear proofs, and sent down with them the Book and the

balance that men may conduct themselves with equity/justice: And We sent down Iron . . 16

Furthermore, secondary sources of the Shariah have also been used by the jurists to

achieve equity in Islam. This concept is more to be found in Ijma’, Qiyas, the Hanafi

principle of Istishan (juristic equity or preference) and the Maliki principle of Masalih Al-

Mursalah (public interest). In the words of Abdur Rahim, ‘If we call analogical deduction

(qiyas) the common law of Muslims, then juristic preference (istishan) may be relatively

styled their equity”17.

We can see it between equity and istishan where according to Muhammad Hashim Kamali18:

The title I have chosen for this article draws an obvious parallel

between equity and istihsan which should be explained, for although they bear

a close similarity to one another, the two are not identical.

15 Article 39.16 Surah Al-Hadid:25.17 Abdur Rahim, The Principles of Muhammadan Jurisprudence (Madras, 1911), p. 164.18 See Muhammad Hashim Kamali, Priciples of Islamic Jurisprudence (Kuala Lumpur, 1990), pp. 308-337.

8

Page 3: Islamic Legal Maxim

'Equity' is a Western legal concept which is grounded in the idea of

fairness and conscience, and derives legitimacy from a belief in natural rights

or justice beyond positive law.

Istihsan in Islamic law, and equity in Western law, are both inspired by

the principle of fairness and conscience, and both authorize departure from a

rule of positive law when its enforcement leads to unfair results. The main

difference between them is, however, to be sought in the overall reliance of

equity on the concept of natural law, and of istihsan on the underlying values

and principles of the Shari'ah. But this difference need not be over-emphasized

if one bears in mind the convergence of values between the Shari`ah and

natural law.

Notwithstanding their different approaches to the question of right and

wrong, for example, the values upheld by natural law and the divine law of

Islam are substantially concurrent. Briefly, both assume that right and wrong

are not a matter of relative convenience for the individual, but derive from an

eternally valid standard which isultimately independent of human cognizance

and adherence. But natural law differs with the divine law in its assumption

that right and wrong are inherent in nature.

From an Islamic perspective, right and wrong are determined, not only

by reference to the 'nature of things', but also because God has determined

them as such. The Shari'ah is an embodiment of the will of God, the Lord of

the universe and the supreme arbiter of values. If equity is defined as a law of

nature superior to all other legal rules, written or otherwise, then this is

obviously not what is meant by istihsan. For istihsan does not recognize the

superiority of any other law over the divine revelation, and the solutions which

it offers are for the most part based on principles which are upheld in the

divine law. Unlike equity, which is founded in the recognition of a superior

law, istihsan does not seek to constitute an independent authority beyond the

Shari'ah. Istihsan, in other words, is an integral part of the Shari'ah, and differs

with equity in that the latter recognizes a natural law apart from, and

essentially superior to, positive law.

9

Page 4: Islamic Legal Maxim

Istihsan is an important branch of ijtihad, and has played a prominent

role in the adaptation of Islamic law to the changing needs of society. It has

provided Islamic law with the necessary means with which to encourage

flexibility and growth. Notwithstanding a measure of juristic technicality

which seems to have been injected into an originally simple idea, istihsan

remains basically flexible, and can be used for a variety of purposes. Yet

because of its essential flexibility, the jurists have discouraged an over-

reliance on istihsan lest it result in the suspension of the injunctions of the

Shari'ah and become a means of circumventing its general principles.

Istihsan literally means `to approve, or to deem something preferable'.

It is a derivation from hasuna, which means being good or beautiful. In its

juristic sense, istihsan is a method of exercising personal opinion in order to

avoid any rigidity and unfairness that might result from the literal enforcement

of the existing law. `Juristic preference' is a fitting description of istihsan, as it

involves setting aside as established analogy in favor of an alternative ruling

which serves the ideals of justice and public interest in a better way.

Enforcing the existing law may prove to the detrimental in certain

situations, and a departure from it may be the only way of attaining a fair

solution to a particular problem. The jurist who resorts to istihsan may find the

law to be either too general, or too specific and inflexible. In both cases,

istihsan may offer a means of avoiding hardship and generating a solution

which is harmonious with the higher objectives of the Shari'ah.

10

Page 5: Islamic Legal Maxim

ISLAMIC LEGAL MAXIMS

الفقهية القواعد

     Qawa'id al-Fiqhiyyah deals with the principles through which the rulings of new

occurrences are identified in the absence of a clear statement in the Qur'an, Sunnah, or ijma'.

The subject matter of the science is the methodology of deducing fiqh rulings from the

established legal maxims. The issues that one studies in the field constitutes the examination

of the conditions and states of furu', and determining the compatibility of the principles with

the furu'. Al-Qaraf I, a renowned scholar of Islamic law, explained the importance of the Fiqh

maxims when he said19:

Islamic law can be generally divided into two parts, namely, the fundamental matters

The fundamental matters are further divided into .(الفروع) and the branches (األصل)

two sections, the first is what called الفقة and the second is the general principles ofأصول

Fiqh which are very important and from which many rules of Fiqh can be deducted.

     Qawa'id al-Fiqhiyyah allows one to know the ruling of new occurrences when there is

no clear law from the lawgiver, and it allows one to understand a large amount of furu' in a

relatively short period of time. Being a branch of fiqh, the study of legal maxims naturally

shares the merit that fiqh enjoys: the best field after theology. A prominent modern jurist,

Mustafa Al-Zarqa, in his introduction when discussing about legal maxim, mentioned that

although these legal maxims are general principles, they have a significant role in Fiqh. These

maxims have solved most of the minor rules (األحكام) of Fiqh and without them; these minor

rules will have no standing ground which would make it hard to solve them20.

 

     It is stated in the law of Mejelle that the legal maxims are designed to facilitate a

better understanding of the Shariah. Hanafi jurists were the first to formulate legal maxims. It

was followed by Shafi’is, Hanbali’s and Maliki’s.

19 Al-Qarafi, Tahzib Al-Furuq, vol. 1, p. 36.20 Al-Zarqa, Al-Madkhal, vol. 2, p. 949.

11

Page 6: Islamic Legal Maxim

With that, these are the main maxims:

Acts are judged by the intention behind them

Certainty is not overruled by doubt

Hardship begets facility

Harm must be eliminated

Custom is the basis of judgment

ACTS ARE JUDGED BY THE INTENTION BEHIND THEM

األموربمقاصدها

Generally, many great scholars had explained this axiom in their writings. In Idah al-

Qawa'id al-Fiqhiyyah, Al-Lahji explains that the meaning of this axiom is that all matters are

connected to the intentions behind them. The basis for this axiom is versified by Al-Ahdal:

“This legal maxim is derived from the hadith:  "Acts are only judged in accordance with the

intention behind them.” In the literal sense, the word intention means purpose or objective; in

the legal usage it refers to strong determination in the heart. This is the definition provided by

Ibn al-Salah and Al-Nawawi.

The intention has been defined in different ways, as noted above, Imam Al-Nawawi

defined the intention as a firm determination in the heart, but Al-Mawardi offered a different

interpretation. According to Imam Al-Mawardi, the intention means that one's determination

coincides with the performance of the intended act. In most instances, the intention is an

obligatory condition or integral. The locus of the intention is the heart, and it is insufficient to

utter the intention when the intention is absent in the heart. The intention in the heart is given

absolute consideration. This means that if a person utters the intention to pray  ‘Asr but the

intention in the heart is Zuhr, then Zuhr prayer is considered. In most cases, it is not

obligatory to utter the intention. For example, if a person wants to give a portion of land for a

mosque as an endowment, the land is an endowment solely through the intention of the one

giving the land. However, there are some instances that necessitate the utterance of the

intention, such as divorce or swearing an oath.  

12

Page 7: Islamic Legal Maxim

The meaning of intention is the will directed towards an action, or the directing of the

will towards the action of any human being. It is basically refer to an act of any human being

that being judged in the light of the intention or the purpose it seeks to have effect. This

means that the effect to be given to any particular action or transaction must be in accordance

with the intent underlying such attention or transaction. For example, if a person tries to

punch at another at his face with the intention of hitting him and does hit him, the perpetrator

is said to have willed the action of punching and intended to hit the other person.

This maxim has its origin from the following Hadith of the Prophet S.A.W:

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.” This hadith clearly stated that all

deeds are judged according to intention. The legal implications of certain deeds are

also based on intention.

Narrated by Anas R.A, the Prophet S.A.W is reported to have said: “There are no

deeds to those who have no intention.”21

Generally the position of the intention is in the heart and it is not enough to utter it

without having intention in the heart. Great scholars have different views regarding this

particular issue. Uttering of intention is not requirement as there is no proof from the Prophet

S.A.W or his companions on this matter. The Shafie’s school holds that it is recommended to

pronounce the intention in order to support the intention in the heart whilst Hanbali’s school

said that uttering of intention is not recommended and considered as a form of bid’ah

(innovation). Whereas, Maliki’s school suggested that uttering of intention is permitted but is

better not to utter it. In conclusion, if uttering of intention will distract the concentration of a

person in performing ibadah, it is better not to practise it. Nevertheless, if it can assist a

person in backing his intention, then, it is recommended to utter it.

This maxim also gives rise to the question of the difference between the intention and

the outward expression. In this circumstance, the judgment should be in accordance with the

intention to the extent that it may be established.

21 Recorded in Al-Bayhaqi.

13

Page 8: Islamic Legal Maxim

Thus, in the event of a difference between the wording of an expression and its

meaning, consideration should be given to the meaning and not to the literal wording.

Another maxim indicates this rule in the interpretation of contracts when it says: “In

contracts, effect is given to intention and meaning not and not words and forms.”22 For

example, it is known that a contract for the use of a thing is called a contract of hire, if

remuneration is stipulated in consideration of such a use, and a contract of loan if no such

remuneration stipulated. If two persons conclude a contract apparently of a loan but in

consideration for which a specific rental is provided for, the contract would be regarded as a

contract of hire as its real meaning indicates, and not be a contract of loan as the wording of

the contract would suggest.

An intention should be known if it is to be affected. Hence, if there is inconsistency

between the intention and the outward connotation and there is difficulty in determining the

intention, effect should be given to the outward connotation. There is a Hadith which explains

this situation that reads: “We give judgment on the basis of the apparent, Allah takes care of

the inward situation.” The Majallah says, “In obscure matters the proof of a thing stands in

the place of such thing. That is to say, obscure matters in which it is difficult to discover the

truth are judge according to the obvious proof concerning their outward connotation.”23

With that, it is clear from the above discussion that the knowledge of intention is

important because it is essential in order to establish the correct juridical rule and failure to

comprehend it might result in departure from the justice.

22 This maxim is mentioned under Article 3 of Majjalah Al-Ahkam Al-Adliyyah.23 Ibid, Article 68.

14

Page 9: Islamic Legal Maxim

CERTAINTY IS NOT OVERRULED BY DOUBT

  بالشك اليزال اليقين

Al-Lahji mentions that the meaning of this axiom is that the ruling of certainty is not

removed by doubt, be it 50/50 or 70/30. According to Al-Fadani, certainty refers to repose in

the heart over the reality of a thing Doubt whereas according to the fuqaha, it is literally

means to waver as Al-Nawawi explained in his writing when he said that “Doubt here and in

most chapters of fiqh means wavering, be it 50/50 or 70/30.”24

This maxim discusses about the principle that should be followed if there is doubt in

any matter, particularly those mentioning Islamic Law. It means that a fact established by law

or proven wit evidence will remain so, until there is another certainty that prove another way

around. Any doubt that occurs when certainty prevails will have no power to remove the

certainty. Likewise, if something has not been established with certainty, it will remain so

until proven otherwise. This is because doubt, which comes later, is weaker than the certainty

on which it is founded. Doubt, therefore, cannot contradict or resist certainty.

There are several verses from the Quran and Sunnah which support this maxim. Firstly, verse

from Quran:

شيئا الحق من يغني ال الظن إن ظنا إال هم أكثر يتبع وما

But most of them follow nothing but fancy: truly fancy can be of no avail against the truth.25

This verse speaks about the stage of being doubtful which the unbelievers are in.

Surely the doubt that they are in will not prevail over truth or certainty. In addition, those

who follow al-zann or are doubtful will never be successful and what they follow will never

lead them to the right path.

The legal basis for this maxim is derived from the hadith:

24 Al-Daqaiq25 Surah Yunus:36.

15

Page 10: Islamic Legal Maxim

Dه عليه و سلم انه قال إذا شك أحدكم في الواحدة روي عن النبي صلى الل

والثنتين فليجعلهما واحدة وإذا شك في الثنتين والثالث فليحعلهما ثنتين و يسجد

في ذلك سجدتين قبل أن يسلم

The Prophet S.A.W said: If forgetfulness arises to anyone of you in his salah and he does not

know whether he has prayed one raka’ah or two raka’ahs, he should consider them as one

raka’ah. Likewise, if this person is not sure whether he has prayed two raka’ahs or three, he

should consider them as two. Moreover, if this person does not know whether he has prayed

three raka’ahs or four, he should consider them as three raka’ahs. In all these cases, this

person should prostrate twice before he will finish his prayer by giving the greeting (salam).26

This proves that certainty cannot be removed by doubt. In the first case, although this

person is not sure whether he or she has prayed one raka’ah or two raka’ahs, it is certain that

he or she has prayed at least one raka’ah i.e. the certainty of praying one raka’ah. Therefore,

cannot be removed by doubt that has arisen regarding the second raka’ah. It goes the same

way if he or she forgot at second and third raka’ahs. Beside, this hadith also clearly indicates

there is no room for doubt and if it happens, that person should disregard the doubt and be

affirmed on certainties.

Another hadith regarding this maxim,

فأشكل L شيئا بطنه في أحدكم وجد إذا ثم وسلم عليه اللDه صلى اللDه رسول قال

ريحا يجد أو صوتا يسمع حتى المسجد من يخرج فال ال أم شيء منه أخرج عليه

The Prophet S.A.W said: If anyone of you feels anything in his or her 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.27

26 Narrated by Al-Termidzi27 Narrated by Muslim

16

Page 11: Islamic Legal Maxim

Imam Nawawi in explaining this hadith, it remarked that, this maxim is a great maxim

of Islamic Laws, that affairs should be judged to be in their original condition unless the

opposite is certainly proved. If any doubt arises later, this doubt would not hamper the

certainty that had been originally established about those affairs.

Al-Lahji mentions that this axiom enters into every chapter of fiqh, and the masa'il 

extracted from it consumes more than three-quarters of fiqh. This is because the maxim has

various subdivisions, such as:

The norm is that the status quo remains as it was before. A common example of this

principle is the certainty of purity in the face of doubt. When one has conviction of

purity but then doubts about having nullified ritual purity, such doubt is ignored.

Likewise, if one is certain of ritual impurity but then doubts about having performed

ablution, one is still considered to be in a state of impurity. 

The norm is non-liability (with regards to others rights). An example of this maxim is

when a person rents a piece of property and the property is destroyed while in the

tenant’s possession, the norm is that the word of the tenant is considered regarding the

amount to the damage.

There are many applications regarding of this maxim. Among others, 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. Second, a person has taken a loan from another

person and is in doubt whether he is still in debt, he is considered to be in debt until there is

proof to show otherwise. Lastly, if a man marries a woman through a valid contract, then

some doubts occur regarding the divorce of his wife, their marriage would be considered

valid because these doubts came after certainty. This doubt of divorce, therefore, cannot

remove the certainty of marriage. In addition to the said examples, there are many other

instances in which this maxim can be applied.

HARDSHIP BEGETS FACILITY

17

Page 12: Islamic Legal Maxim

لمشقة تجلب التيسيرا

This maxim particularly indicates that any ruling whose implementation causes

hardship to a person or the action is unable to be performed by a person for a specific

acceptable reason, then there are alternatives and way out that can be resorted to on order to

overcome the difficulties and hardship. Before goes further, the meaning of this axiom is that

necessity brings about dispensations from Allah Most High, as Al-Jarhazi explained in one of

his books.28

According to Imam Ghazali, everything that exceeds its limit, changes into its

opposite. It becomes necessary to lighten the people’s burden and to disregard general rules

in certain exceptional circumstances if their applications were to result in injury and hardship.

Hardship in this maxim refers to hardships that surpass the normal limit and ability of a

person to perform them, and such as hardship of travel or sickness. The normal hardship that

accompanies the implementation of every obligatory duty such as hardship in performing

certain kinds of ibadah such as fasting, hajj, jihad, and the consequences of different kinds of

penalty imposed by the Shariah does not fall under the interpretation of this maxim. This is

because; this kind of hardship is bearable and is within the ability of a person to tolerate it. In

addition, there will be no harm on a person who executes this kind of injunctions of the

Shariah.

Several Quranic’s verses were highlighted in support of this maxim. Among other are:

حرج من الدين في عليكم جعل وما

He did not make any difficulty for you regarding the religion29

العسر بكم يريد وال اليسر بكم Dه الل يريد

Allah wants ease for you and He does not want hardship for you30

28 Al-Mawahib Al-Saniyyah29 Surah Al-Hajj:78.30 Surah Al-Baqarah:185.

18

Page 13: Islamic Legal Maxim

وسعها إال نفسا Dه الل يكلف ال

Allah does not give anyone legal responsibility for anything except what is within his

capacity.31

All the above verses indicate the fact that Allah does not intend to burden human

beings with all the injunctions that He revealed. Therefore, if there is any exist of any

injunction which is difficult to perform for a valid reason, then there will always be an

alternative.

A number of the Sunnah form the Prophet S.A.W also indicates that Allah intends to

provide facility and lift all kinds of unbearable burden from the mankind. For example,

You have not been sent like those who have been given hardship. Rather, you have

been sent as those who have being given ease or facility.32

Aishah R.A said, “Whenever the Messenger of Allah was given choice between two

things, he choose the easier one unless it was a sin.33

Surely Allah S.W.T introduced the din as easy, full with kindness, and wide. He did

not make it narrow.34

Al-Lahji mentioned that the scholars view all dispensations in the sacred law as a

derivation from this legal maxim. The reasons for ease in the sacred law are seven: travel,

illness, coercion, forgetfulness, being ignorant of ruling, difficulty and decrease. According to

Imam Al-Suyuti, the criterion for hardship to beget facility is of two types:

1. That which has no effect on easing the ruling, usually found in worship, such as

the difficulty of using cold in ablution or the difficulty of fasting in severe heat.

2. That which has an effect, not usually found in worship. This type has various

levels:

A very severe difficulty, such as fearing for one's own life. This is a

cause for ease and dispensation.

31 Surah Al-Baqarah:286.32 Narrated by Bukhari and Muslim.33 Bukhari and Muslim.34 Narrated by Tabarani.

19

Page 14: Islamic Legal Maxim

Minimal difficulty, such as a mild headache. This is not a cause for

ease.

An average hardship. A hardship that is closer to a level one hardship

necessitates dispensation, while hardships in close proximity to level two

do not.  

Facility of six types:

1. Takhfif isqat: such as Friday prayer when excuses are present.

2. Takhfif tanqis: such as shortening prayers due to travel.

3. Takhfif ibdal: such as dry ablution replacing a regular ablution. 

4. Takhfif taqdim: such as jam' taqdim in travel.

5. Takhfif ta'khir: such as jam' ta'khir in travel.

6. Takhfif tarkhis: This type includes difficult matters that the Lawgiver has made easy,

such as using impure medicine.

Dispensations are of various types:

Obligatory-- an example of this is eating unslaughtered dead when one believes

that death is imminent if one does not consume the unslaughtered meat.

Recommended--an example of this is shortening prayers when the journey is

three marhala. 

That which is better to leave, such a wiping over leather socks. 

 That which is disliked to do, such as shortening on a journey less than

three marhala.

The applications of the maxim can be seen as follows;

If someone enters into a rental contract and later on he has to travel for certain

reasons, he is allowed to cancel the rental contract. Under normal circumstances, 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

20

Page 15: Islamic Legal Maxim

Sharia has allowed the cancellation under specific circumstances in order to avoid

this.

The general ruling related to the implementation of punishments towards a person

convicted for any crime 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 date. This is to ease the

person form additional hardship.

Two men were travelling together, one of whom died in a place where no judge can

be found. In this situation, the other traveller is allowed to sell the property of his

companion and keep its price for the deceased’s heirs without any legal power or

instruction given by the latter to the former. Under normal circumstances, none is

allowed to sell the property of a dead man who is neither related to the dead person,

but in this case, if the above person does not sell the property of his companion it

would be difficult for the former to carry the property of the latter.

There are also several maxims, which are considered as the branches of this maxim.

Among others are necessity renders prohibited things permissible. This means that prohibited

things are allowed to be carried out under extreme circumstances provided there are no

permissible alternatives. For example, a person is allowed to consume prohibited food in

order to survive under extreme situations where there are no food is available. Another

branch is where a matter is narrowed, it becomes wide and lastly latitude should be afforded

in the case of difficulties. This means upon the appearance of hardship in any particular

matter, latitude and indulgence must be shown.

HARM MUST BE ELIMINATED

يزال الضرر

21

Page 16: Islamic Legal Maxim

According to M.H. Kamali, “....the maxim....is the validation of the option of defect in

Islamic law, which is designed to protect the buyer against harm.” In addition, this maxim

also is treated as a ‘pillar’ of Islamic law where it established laws of option, inhibition,

return of defective merchandise, pre-emption, requital, Hudud, compensation and indemnity.

The basis for this axiom is the saying of our beloved Prophet S.A.W,

والضرار ضرر ال

Harm should not be inflicted nor reciprocated35

The scholars differ over what is meant by the words inflicted and reciprocated. Some

scholars stated that inflicted harm is harm caused by one individual, while reciprocated harm

refers to two individuals causing harm to each other. Another view is that inflicted harm

entails that the person inflicting the harm is benefiting in some way, and reciprocated harm

entails that the person inflicting harm is not benefiting from the harm caused.36

The first part of the maxim i.e. harm should not be inflicted, clearly indicates that all

kinds of harm, whether it involves individual, society environment or any other things should

be avoided. The word ‘harm’ 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. The second

part of the maxim explain that any harm that is inflicted should not be responded or revenged

by inflicting another harm as this will add to the harm that already inflicted and will cause or

incur further harm. If this happens, the better solution for the victim should demand his right

through due process of law.

Apart from this clear indication on this maxim, there are also verses from the Quran

that indicate the obligation to avoid any kind of harmful actions. One of those verses reads:

35 Narrated by Ibn Majah, Malik Al-Hakim, Al-Bayhaqi, and Al-Darulqutni.36 Kitab Al-Qawaid.

22

Page 17: Islamic Legal Maxim

التهلكة إلى بأيديكم تلقوا وال

. . . Make not your own hands contribute to (your) destruction . . .37

In addition, this maxim also means that it is obligatory for everyone to always strive

to prevent harm before its occurrence through implementing precautionary measures.

Likewise, it means that if any harm has occurred, then all necessary measures should be taken

to remove it or to lessen its destructive implications wherever possible.

Like the previous legal maxim, this axiom, upon which many rulings are based, enters

into numerous sections of fiqh. Furthermore, this legal maxim has various sub-divisions:

Necessity makes the unlawful lawful, such as eating unslaughtered dead.

Necessity is measured in accordance with its true proportions, such as only

eating from unslaughtered dead the amount needed to keep oneself alive.

Harm must be eliminated but not by means of another harm, such as when a

person eats the food of another to satiate his own hunger.

A greater harm is eliminated by means of a lesser harm. This axiom is derived

from the incident of the desert Arab who urinated in the mosque, and the Prophet

S.A.W ordered the companions to leave the desert Arab as he was in order to eliminate

a greater harm. 

Prevention of evil takes priority over the attraction of benefit, such as leaving the

group prayer or Friday prayer due to illness.

The various levels in this axiom are:

Necessity: Al-Zarkashi defines this as reaching a point where one would die, or

come close to death, if an unlawful thing is not taken advantage of.

37 Surah Al-Baqarah:195.

23

Page 18: Islamic Legal Maxim

Need: where one will not perish if an unlawful is not taken advantage of, however,

one will fall into hardship. Need in this sense does not permit the unlawful.

Benefit: something that one desires.

Adornment: a thing of amusement.

Surplus: consuming more than one need or utilizing doubtful things.

CUSTOM IS THE BASIS OF JUDGEMENT

محكمة العادة

‘Adah or custom means the practise of the people in a certain place or town, whether

in sayings or their actions, regardless of whether they are the general practises of the people

or the practises of certain groups of people. These practises have authority and can specify a

general matter ( العام or (تخصيص restrict an unrestricted matter ( المطلق .(تقييد For

instance, if a contract does not specify whether the delivery of goods is the responsibility of

the purchaser or the retailer, where in this case the prevailing custom should be depended

upon to specify and clarify this matter which is not cited in the contract.

The basis for this axiom is derived from the verse: “And those who follow a way other

than the path of the believers.” Al-Fadani explains that what is meant by path in the verse is

the path that the believers approved, and that Allah warned those who follow a different path

with punishment. This indicates that it is obligatory to follow the customs of the believers. In

short, the custom of the believers is the basis for judgement in the sacred law.

There are some evidence from the Holy Quran and Sunnah indicating the authority of

custom. Among of these texts are:

الجاهلين عن وأعرض بالعرف وأمر العفو خذ

Keep to forgiveness, enjoin ‘urf and turn away from the ignorant38 38 Surah Al-‘Arof:199.

24

Page 19: Islamic Legal Maxim

Many mufassirun suggested that the meaning of ‘urf in this verse is synonymous to

ma’ruf which means anything that is good. Therefore, customs will be considered in making

legal judgments.

Saidatina Aishah R.A had reported in a hadith, she said: “Hind, the daughter of

‘Utbah, wife of Abu Sufyan, came to Allah’s Messenger and said: Abu Sufyan is a miserly

person. He does not give adequate maintenance for me and my children, but (I am

constrained) to take from his wealth (some part of it) without his knowledge. Is there any sin

for me? Thereupon Rasulullah S.A.W said: Take from his property what is customary

(ma‘aruf) which may suffice you and your children.”

Some commentators of Sunnah suggested that this Hadith indicates the important role

of custom and it should be relied upon on in matters where the Shara’ did not give the exact

details.39

Besides that, Abdullah ibn Mas‘ud had said, “What the Muslims deem to be good is

good the sight of Allah.” The proof that can be deducted from this quotation is that custom, if

it is 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. Hence, it

can be regarded as a source of law in Islam.

In addition of above evidences, 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 rule

of custom in solving the problems that arise in Islamic law.40

This is obvious in the past and present literature of fiqh in which custom has been utilized by

the jurists to solve many issues of fiqh.

Custom is continuously applied in fiqh. Some of the most important issues, such as

determining the duration of menstruation and post-natal bleeding, return to custom. Similarly,

in issues where one doubts about a small or large amount, the norm is to consider what is

customarily considered large or small. 39 See Al-Asqalani, Fath Al-Bari Sharh Sahih Al-Bukhari, vol 9, pp 419-420.40 See Badran, Usul, p 226, Muhammad Hisham Kamali, Principle, p 372, Abdul Karim Zaydan, Al-Wajiz, p 254.

25

Page 20: Islamic Legal Maxim

A number of discussions fall under this legal maxim: 

When is custom established, it can be established through one occurrence alone, such

as abnormal uterine bleeding, or it is established by three occurrences, or through

repeated occurrences, until it is most likely that a custom is established, such as the

case of training an animal to hunt. 

Custom is only considered when it is continuous and uninterrupted. A practical

example of this is when a certain type of currency has become the standard currency

in transactions, the default is that one must transact with the currency customarily

used. The default for limits, measurements, and definitions is custom whenever the

Lawgiver mentions such things without stipulating.  

BIBLIOGRAPHY

Mohammad Akram Laldin, Islamic Law an Introduction, (Kuala Lumpur, 2006).

Wan Azlan Ahmad & Paul Linus Andrews, Equity and Trusts in Malaysia, Sweet &

Maxwell Asia, (2011).

Syed Khalid Rashid and Mohsin Hingun, Cases & Materials: Equity and Trusts in

Malaysia, (Kuala Lumpur, 1997).

26

Page 21: Islamic Legal Maxim

Muhammad Hashim Kamali, Principles of Islamic Jurisprudence, (Kuala Lumpur,

1990)

27