Islamic legal maxims- Qawaid Fiqhiyyah

Islamic Legal Maxims

القواعد The Meaningالفقهية

The History

Discussion on Five Major Maxims

The Definition Literally :Islamic Law – الفقه .Principles - القواعد - 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”

القواعد الفقهيةThe principles of Islamic LawIslamic 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

LEGALMAXIM

1.AL-UMUR BI MAQASIDIHAMatters are determined according

to intention

2.AL-MASHAQQAH TAJLUB AL-TAYSIRHardship begets facility

5. AL-‘ADAH MUHAKKAMAHCustom is arbitrary

3. LA DARARA WA LA DIRAR Harm shall not be inflicted

nor reciprocated

4. AL-YAQIN LA YAZULU BI AL-SHAKKWhat is certain cannot be

removed by doubt

1. Al-Umur bi Maqasidihaاألمور بمقاصدها

General Meaning

Origins of the Maxim

Applications of the Maxim

Branches of the Maxim

[Matters are determined according to intention]

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

General Meaning

Origins of the Maxim 1

إنما األعمال بالنيات وإنما لكل إمرى ما نوى“”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 11. 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 IntentionA. 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

العبرة في العقود للمقاصد والمعاني ليس لأللفاظ ]] والمباني

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.

[Hardship begets facility]

2.Al-Mashaqqah Tajlub al-Taysirالمشقة تجلب التيسير

General Meaning




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 Maximوما جعل عليكم في الدين من حرج

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

ه بكم اليسر وال يريد بكم العسر يريد اللAllah wants ease for you and He does not want hardship for you [Al-Baqarah, 2:185]

ه نفسا إال وسعها ف الل ال يكلAllah 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.

[Harm Shall Not Be Inflicted Nor Reciprocated]

3. La Darara Wala Dirar

ال ضرر والضرار General Meaning




General Meaning A general maxim which indicates the importance

to remove all kind of harm. This maxim is divided into two parts:

i. ال ضرر [La Darar]Harm shall not be inflicted

ii. ال ضرار [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 3The Prophet (pbuh) said:

“ال ضرر والضرار”“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:

هلكة...” “...وال تلقوا بأيديكم إلى الت“…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.


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 harmIn 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

[What is Certain Cannot be Removed by Doubt]

4. Al-Yaqin La Yazulu bi al-Shakk

اليقين ال يزول بالشك General Meanings




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.

EVIDENCEFACT/CERTAINTY ? DOUBTA IS ALIVE A IS DEADEVIDENCEFACT/CERTAINTYA 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 ”إذا وجد أحدكم في بطنه شيئا، فأشكل عليه أخرج منه شيء أم ال، فال يخرجن من المسجد

حتى يسمع صوتا أو يجد ريحا“"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]

”إذا ش ك أحدك م ف ي الواحدة والثنتي ن فليجعلهما واحدةوإذا ش ك ف ي الثنتي ن والثالث فليجعلهم ا ثنتي ن ويس جد ف ي

ذلك سجدتين قبل أن يسلم“If the forgetfulness arises to anyone of you in his salah and he does not know whether he has prayed one rakàh or two,he should consider them one rakàh. Likewise, if this person is not certain whether he has prayed two rakàhs or three, he should consider them two rakàhs.

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


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

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



Originally A Matter Will Remain As It IsThis 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

[Custom is Arbitrary]

5. Al-‘adah Muhakkamahمة العادة محك

General Meanings




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 [بيع المعاطاة], which is normally concluded without the utterance of offer and acceptance.

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.


Education

Islamic legal maxims- Qawaid Fiqhiyyah