islamic legal maxims

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.

Islamic Legal Maxims

الفقهية القواعد

The Meaning

The History

Discussion on Five Major Maxims

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




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.


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.


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.


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




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]


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 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




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.

EVIDENCE FACT/CERTAINTY ? DOUBT A IS ALIVE A IS DEAD EVIDENCE FACT/CERTAINTY A 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.


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 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 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




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.


‘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.


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