islamic legal maxims
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Introduction
• Islamic Legal Maxims which includes the definition of legal maxim, historical development of legal maxim, origin of legal maxim, categories of legal maxim.
• Normally in our discussion of legal maxim, we will highlight some of the most essential maxims that were written by our muslim jurists
• The concentration shall be given on selected five legal maxims as they are aggreable by all jurists.
• These 5 maxims are as Follows: Matters are determined according to the intention, Hardship begets facility, Certainty is not dispelled by doubt, injury must be removed and finally Custom is authoritative.
The Definition
Literally : it consists of two different words of qawaid and al-fiqhiyyah. Qawaid is derived from the root of qaada-yaqudu-quudan, and it is the plural of qaidah. whereas the al-fiqhiyyah is derived from the root of faqaha-yafqahu-fiqhan.
In Brief we might say that the word of - refers to – Principles, and the word of القواعد .in this regard refers to Islamic Law – الفقه
Therefore, when we combine both of them, we might say that al-qawaid al-fiqhiyyah or legal Maxim is referred to Principles In Islamic law or in Malay Kaedah-kaedah fakeh.
The Definition
Technically : Mustafa Ahmad al-Zarqa`
“General principles of Fiqh refers to a statement which is presented in a simple format consisting of the general rules of Shariah in a particular field related to it”
القواعد الفقهية
The principles of Islamic Law
Islamic Legal Maxim
The Definition
Technically : Imam al-Jurjani and imam al-Fayumi:
“a general rule which applies to all of its related particulars”.
Technically : Imam al-Tahanawi:
“a general rule which applies to all of its related particulars when the hukm about it is perceived”
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Dr Akram Laldin in his book of Introduction to Shariah and Islamic Jurisprudence has mentioned that al-Qawaid al-fiqhiyyah or legal maxims are general rules of fiqh, which can be applied in various cases that come under the common rulings. These legal maxims, as he added, have a great role in the formation of Islamic law because they are used as principles to deduce many rules of fiqh. Many cases as he perceived, can be referred to these maxims for solutions and in many instances, they can be the measurement for the validity of certain deeds.
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• Prof Hasyim Kamali in his writing on legal maxims says that Legal maxims (qawa‘id al-kulliyah al-fiqhiyyah) are theoretical abstractions, usually in the form of short statements, that are expressive, written in a few words, discussing about the fundamental principles in Islamic Law
• Therefore, we might say that Legal maxims of fiqh are statements of principles that are derived from the detailed reading of Muslim jurists on various verses and ahadith from the Prophet and other sources, to be used as the rules of fiqh on various matters.
Summary of Legal Maxim:
The general rules of Fiqh, which can be applied
in various issues of fiqh.
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.
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• If we looked closely to the various legal maxims that have been written and produced by the Muslim jurists, we would realize that the actual wordings of the maxims are occasionally or rarely taken from the Qur’an or Ahadith.
However, most of the times, these legal maxims are the writings of leading jurists and mujtahids that have subsequently been refined by others throughout the ages
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• It this regard, it is understood that Legal maxims as a set of established principles of law derived from various sources, to which the Muslim jurists most of the times will refer to, when they confronting new legal cases.
It is also importance to remember that legal maxims according to Muslim jurists, do not bind the judge or jurist, but provide persuasive sources of influence in the formation of their judicial decisions and ijtihads.
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• It is stated in the Mejelle that legal maxims are designed to facilitate a better understanding of the Shari‘ah and the judge may not base his judgement on them unless the maxim in question is derived from the Qur’an or Ahadith or supported by other strong evidence.
• However, according to some jurists such as Shihab al-Din al-Qarafi, who held the opinion that a judicial decision is reversible if it violates a generally accepted maxims. Therefore, based on his view, the judge, must base his judgment upon these generally accepted maxims.
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• If we wish to compare the Islamic Legal maxims with something that we might be familiar with, we may compare these legal maxims with the various proverbs that we have in our literature. The saying such as “Bagai aur dengan Tebing” or in English “like the river and its bank” or proverb which says : “Bapa borek anak rintik” which means “Like father like son, like mother like daughter”
• Or proverb says “Sekali air bah sekali pantai berubah” which means “once there was a flood, the beach changed” or etc.
• These proverbs were produced by our forefathers, and they have derived them based on their own observations and experiences in their life.
•
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• Therefore, these proverbs or words of wisdom that were written by our forefathers, which consist of few words, but having comprehensive and very deep meaning, and they could be considered as guideline in different divisions in our life.
Of course Islamic legal maxims are the fiqh principles which are used in various matters pertaining to our religion, whereby the proverbs or words of wisdom used by our forefathers as guideline in solving various problems arising within our society. Islamic Legal Maxims used to solve problems in religion, and proverbs used as guideline to solve various problems pertaining to our society.
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• A prominent modern Muslim jurist, Mustafa al-Zarqa’, in his discussion on legal maxim, mentioned that although these legal maxims are general principles, they have significant roles in fiqh. These maxims, according to him, have solved most of the minor rules of fiqh and without them, these minor rules, will have no standing ground which will make it hard to solve them.
• Jurists and mujtahids will refer to these legal maxims and used them, in order to solve problems which are not mentioned in other sources of 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.
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• Some legal maxims are of general application, whereas others might apply to a particular area of fiqh, such as ‘ibadah (worship), mu‘amalah (transactions), contracts, litigation and court proceedings.
• Ibn Juzay al-Maliki’s for instance, through his book of Al-Qawanin al- Fiqhiyyah has identified and discussed about the legal maxims and he said that the most comprehensive and broadly based of all maxims are known as “al-qawa‘id al-fiqhiyyah al-asliyyah al-kulliyah”, or the comprehensive normative legal maxims, and these kinds of legal maxims apply to the entire range of fiqh without any specification.
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• Jurists said that this kind of legal maxims are acceptable by all madhahib. Maxims such as “Harm must be eliminated” (Ad-dararu yuzal) and “Acts are judged by the intention” (Al-umuru bi-maqasidiha) for example, belong to this category of maxims.
• The early ‘ulama have singled out about five of the legal maxims and they are the essence of the Shari‘ah as a whole, and the rest according to them, are simply an elaboration of these five maxims.
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• These five legal maxims are as follows:
• “Harm must be eliminated” (Ad-dararu yuzal)
• “Acts are judged by the intention behind them” (Al-umuru bi-maqasidiha)
• - “Certainty is not overruled by doubt” (Al-yaqinu la yazulu bish-shakk).
• - “Hardship begets facility” (Al-mashaqqatu tujlab at-taysir).
• - “Custom is the basis of judgement” (Al-‘addatu muhakkamatun)
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• The example of a legal maxim which is used only in a particular issue such as the legal maxim which says: “The affairs of the imam concerning his people are judged by reference to maslahah” (Amr al-Imami fi shu’un ar-ra‘iyyati manutun bil-maslahah).
• This kind of legal maxim is basically often used in Islamic political affairs between the ruler and his people.
• Therefore, this kind of legal maxim is difficult to be used in other matters, except the affairs of the people or the activities of their imam or ruler.
History of Al-Qawaid al-Fiqhiyyah
- We must bear in our mind that 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, especially during the Abbasiyyah dynasty.
- Among the earliest jurists who developed most of the Fiqh maxims are the jurists of the Hanafi 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 Sufyan ibn Tahir al-Dabbas.
- In the 15th century of hijrah, Abu Zayd ‘Abdullah b. ‘Umar Al-Dabbusi wrote his book Ta’sis al-Nazar
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Many scholars from various schools added to these from time to time and the total number of qawa‘id eventually exceeded twelve hundred.
• After the Hanafis, the Shafi‘is, then the Hanbalis, and following them the Maliki jurists started to write various maxims.
• Taj ad-Din as-Subki, for instance, wrote a most important work on legal maxims ‘al-ashbah wan-naza’ir’ as the title of his book.
• Jalal ad-Din as-Suyuti (d.911) and Zayn al-‘Abidin Ibn Nujayam al-Hanafi (d.972) also wrote works on legal maxims that closely resemble one another, both bearing the title “Al-Ashbah wan-Naza’ir”.
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• The leading Shafi‘i scholar, ‘Izz ad-Din ‘Abd as-Salam’s (d. 660H), Qawa‘id al-Ahkam fi Masalih al-Anam is noted as one of the great contributor to this field.
Also ‘Abd ar-Rahman ibn Rajab al-Hanbali’s (d.795) via his work Al-Qawa‘id.
• The Ja‘fari School of the Shi‘ah have their own collections of legal maxims, but apart from some differences in style, the thematic arrangement in their collections closely resembles those of their Sunni counterparts.
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• The first Shi‘i work on maxims was that of ‘Allamah al-Hilli (d.726H) entitled Al-Qawa‘id, followed by ash-Shahid al-Awwal Jamal al-Din al-‘Amili's (d. 786) Al-Qawa‘id wal- Fawa’id that contained over three hundred maxims.
However, the Mejelle collection, represents the most advanced stage in the compilation of legal maxims.
• The more recent work of Muhammad al-Husayn Kashif al-Ghita’, bearing the title Tahrir al-Mujalla, is a synopsis and commentary of the first ninety-nine articles on legal maxims of the Mejelle collection.
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.
Some of the legal maxims as proposed by Jurists
أألمور بمقاصدها
Matters are determined based on the intention
اليقين ال يزول بالشك
Certainty cannot be removed by doubt
ال ضرر وال ضرار
Harm Shall Not Be Inflicted Nor Reciprocated
المشقة تجلب التيسير
Hardship begets facility
العادة محكمة
Custom is authoritative
العبرة في العقود والمعاني ال لأللفاظ والمباني
In contracts effect is given to intention and meaning and not words and forms"
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األصل بقاء ما كان على ما كلن
"It is a fundamental principle that a thing shall remain as it was originally."
براءة الذمة
"Freedom from liability is a fundamental principle."
القديم يترك على قدمه
"Things which have been existence from time immemorial shall be left as they were."
".ما ثبت بزمان يحكم ببقائه ما لم يوجد دليل على خلفه :
"Judgment shall be given in respect to any matter, which has been proof at any particular time,
unless the contrary is proved"
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األصل في الكلم الحقيقة
"In principles, word shall be construed according their real meaning."
ال مساغ للجتهاد في مورد النص
"Where there is a text there is no room for interpretation."
االجتهاد ال ينقض بمثله
"One legal interpretation does not destroy another."
سع األمر إذا ضاق ات
"Latitude should be afforded in the case of difficulty."
ر بقدرها رورة يتقد ما أبيح للض
"Necessity is determined by the extent thereof."
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إذا زال المانع عاد الممنوع
"When a prohibition is removed the thing to which such prohibition attaches reverts to its former
status of legality."
ما جاز لعذر بطل بزواله
"Whatever is permissible owing to some excuse ceases to be permissible with the disappearance
of that excuse."
رر الخاص لدفع ضرر عام ل الض يتحم
: "A private injury is tolerated in order to ward off a public injury."
رر األخف رر األشد يزال بالض الض
"Severe injury is removed by lesser injury."
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إذا تعارض مفسدتان روعي أعظمهما ضررا بارتكاب أخف هما
"In the presence of two evils, the one whose injury is greater is avoided by the commission of the
lesser."
درء المفاسد أولى من جلب المنافع
"Repelling an evil is preferable to securing benefit."
رر يدفع بقدر المكان الض
"Injury is removed as far as possible."
االضطرار ال يبطل حق الغير
"Necessity does not invalidate the right of another."
ما حرم أخذه حرم إعطاؤه
"When it is forbidden to take a thing it is also forbidden to give it."
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ما حرم فعله حرم طلبه
"When it is forbidden to perform an act it is also forbidden to request to its performance."
ر األزمان ر األحكام بتغي ال ينكر تغي
“ It is undeniable that rules of law vary with
change in time."
ادر ائع ال للن العبرة للغالب الش
"Effect is given to what is of common occurrence, not to what happens infrequently.“
المعروف عرفا كالمشروط شرطا
"A matter recognized by custom is regarded as if stipulated by agreement."
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ار كالمشروط بينهم المعروف بين التج
: "A matter recognized customary amongst merchant is regarded as if agreed upon between
them.“
عيين بالنص عيين بالعرف كالت الت
"A matter established by custom is like a matter established by a legal text.“
ابع تابع الت
"An accessory which is attached to an object in fact is also attached to it in law.“
من ملك شيئا ملك ما هو من ضروراته
: "The owner of a thing held in the absolute ownership is also the owner of the things
indispensable to the enjoyment of such thing."
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غبة منوط بالمصلحة ف على الر التصر
"Management of citizen's affairs is dependent upon public welfare."
إعمال الكلم أولى من إهماله
"A word should be construed as have some meaning, rather than disregarded."
رت الحقيقة يصار إلى المجاز إذا تعذ
"When the real meaning cannot be applied, the metaphorical sense may be used."
كوت في معرض الحاجة بيان ال ينسب إلى ساكت قول لكن الس
"No statement is imputed by to a man who keeps silence, but silence is tantamount to a statement
where there is a necessity for speech."
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الكتاب كالخطاب
"Correspondence resembles conversation.“
الشارات المعهودة لألخرس كالبيان بالل سان
"The recognized signs of a dumb person take the place of a statement by word of mouth."
م وه ال عبرة للت
"No weight is attached to assumption.“
عي واليمين على من أنكر نة للمد البي
"The burden of proof is on him who alleges; the oath on who denies."
مان الخراج بالض
"The enjoyment of a thing is the compensating factor for any liability attaching thereto."
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الغرم بالغنم
• “Liability is an obligation accompanying gain.
• (That is to say, a person who enjoys the benefits of a thing must submit to the disadvantage
attaching thereto.)"
ف في ملك الغير بل إذنه ال يجوز ألحد أن يتصر
"No person may deal with the property of another without such person's permission."
ال يجوز ألحد أن يأخذ مال أحد بل سبب شرعي
"No person may take another person's property without legal cause."
يء قبل أوانه عوقب بحرمانه من استعجل الش
• "Any person, who hastens the accomplishment of a thing before its due time, is punished by being deprived thereof."
•
Five Major Maxims
LEGAL
MAXIM
1.AL-UMUR BI MAQASIDIHA
Matters are determined according
to intention
2.AL-MASHAQQAH TAJLUB AL-TAYSIR
Hardship begets facility
5. AL-‘ADAH MUHAKKAMAH
Custom is authoritative
3.La darara wa la dirar
Harm Shall Not Be Inflicted Nor Reciprocated
4. AL-YAQIN LA YAZULU BI AL-SHAKK
What is certain cannot be
removed by doubt
1. Al-Umur bi Maqasidiha
األمور 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 all the acts have been linked to someone’s intention.
Intention:
a. The will directed towards an action
b. action of man judged through his intention
c. A particular action could be good and having reward and could be bad and getting punishment.
General Meaning
Origins of the Maxim 1 إنما األعمال بالنيات وإنما لكل إمرى ما نوى، فمن كانت ”
هجرته إلى هللا ورسوله فهجرته إلى هللا ورسوله، ومن كانت هجرته لدنيا يصيبها أو امرأة ينكحها، فهجرته إلى
“ما هاجر إليه
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.
Thus, he whose migration (hijrah) was to Allah
and His Prophet, his migration is to Allah and
His Prophet. But he whose migration was for
some worldly matters, he might gain, or for a
woman, he might marry, his migration is to that
for which he migrated "
Origins of the Maxim 1
يعلم ما تبدون وما تكتمون 99: المائدة ]وللاه
God knows all that what you reveal and what you
conceal.
علم الغيوب هم ونجواهم وأن للاه يعلم سر 78: التوبة ]ألم يعلموا أن للاه
Do they know that God knows their secret
(thoughts) and their secret gossips, and that
God knows well all things which are unseen.
Application of the Maxim 1 in Ibadat
1. If a person slaughtering an animal with the
intention to legalize it for food and
consumption purposes, as requested by Allah,
then it is considered as ibadat and shall be
rewarded. However, if the same person
slaughtering an animal because of
superstition, then it is haram and there shall
be punishment on him.
*Same action but different in the intention,
bearing different consequence.
Application of the Maxim 1 in Muamalat
2. 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 someone’s intention.
Application of the Maxim 1 in crime
3. 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
this case, only the paying of blood money
(diyah) is applied, the doer is not entitled to
qisas.
* The same act of murder, but having different
consequence, because of different intention
or niat.
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 (for example she is diet)
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 واملعاني ليس لأللفاظ واملباني[
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-Taysir
املشقة تجلب التيسير
General Meaning
Origins of the Maxim
Applications of the Maxim
Branches of the Maxim
General Meaning
Original rules are general in nature and apply to
all individuals. However, in certain exceptional
situations a strict adherence to the original rules
may lead to injustice and harm.
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 refers to those kind of
hardships that exceed the normal limit and
ability of a person to perform them.
General Meaning [Cont’d]
The normal hardship (masyaqqah mu’tadah)
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. (Reward and
punishment of Allah based on the degree of
someone’s obedience to Him).
General Meaning [Cont’d]
However, in the situation, where there is abnormal
hardship (masyaqqah gharyr mu’tadah) , provided
this kind of hardship is not created by his own self,
then by that time Allah will allow certain
concessions (rukhsah), in order to remove
hardships and ensure justice and fairness.
In other words, when a situation gets difficult, the
law becomes flexible.
Origins of the Maxim
ين من حرج م في الد
يك
وما جعل عل
He did not make any difficulty for you regarding the religion (din of Islam) [Al-Hajj, 78]
عسر م ال
يسر وال يريد بك
م ال
ه بك
يريد الل
Allah wants ease for you and He does not want hardship for you [Al-Baqarah, 2:185]
إال وسعهافسا
ه ن
الل
ف
ل ال يك
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.
Branches of the Maxim [cont’d]
ما جاز لعذر بطل بزواله
"Whatever is permissible owing to some
excuse stops to be permissible with the
disappearance of that excuse.“
ر بقدرها رورة يتقد ما أبيح للض
Necessity is determined by the extent
thereof."
[Harm Shall Not Be Inflicted Nor Reciprocated]
3. La Darara Wala Dirar
ال ضرر والضرار
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. ضرر ال [La Darar]
Harm shall not be inflicted
ii. ضرار ال [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:
“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:
ة...”ك
هل ى الت
م إل
يديك
قوا بأ
ل “...وال ت
“…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
[What is Certain Cannot be Removed by Doubt]
4. Al-Yaqin La Yazulu bi al-Shakk
اليقين ال يزول بالشك
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.
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 ش يء ” “أم ال، فال يخرجن من املسجد 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]
في شك وإذا واحدة فليجعلهما والثنتين الواحدة في أحدكم شك إذا”
“يسلم أن قبل سجدتين ذلك في ويسجد ثنتين فليجعلهما والثالث الثنتين
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
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
Application of the Maxim 4
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
[Custom is Arbitrary]
5. Al-‘adah Muhakkamah
مة العادة محك
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).
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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 [ املعاطاة بيع ], 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.
Branches of the Maxim
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